RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  01-00377
	INDEX CODES 105.01  129.04  136.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His dismissal on 15 Nov 99 be set aside and he be allowed to retire on that date in the grade of lieutenant colonel (LTC).

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APPLICANT CONTENDS THAT:

There were several very significant errors in his officer grade determination (OGD) package. Legal staffs communicated with each other behind the scenes and legal experts maligned his character to commanders who did not know him. Once an OGD recommendation leaves a base, it is very hard to change that recommendation up the chain.  He acknowledged that what he did was wrong.  However, his behavior was not prejudicial to good order and discipline nor did it result in any form of favoritism or partiality. He believes the vigor with which he was prosecuted may have been due to the era of “accountability” established by the then Chief of Staff and to racial prejudice. He was a very successful Hispanic male in a predominantly white community, the charges involved two white women, and the panel members at his trial were white.  The Air Force went overboard following several military public spectacles and he became a victim of extreme prosecution.  The prosecution, punishment, confinement and humiliation he suffered far outweigh the significance of his offense. He should not have been subjected to a court martial at all.  Had the Air Force followed existing guidance in current regulations, many of which have been updated to clarify appropriate procedures for cases of fraternization and adultery, he would have received some form of administrative punishment for his actions.  Before the investigation, he was well-respected and had an outstanding record of military service as an enlisted member and an officer.  Further, had he applied for retirement any time before Apr 96, it would have been approved because he was eligible under the early retirement programs in effect.  He spent his entire life serving the Air Force and should be retired in the grade of LTC.

The applicant’s complete submission, which includes a 7-page statement and 10 attachments, is at Exhibit A.

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STATEMENT OF FACTS:

In the fall of 1992, Congress enacted legislation and the Secretary of Defense approved the use of provisions to retire members from the active military with as few as 15 years of creditable service (Temporary Early Retirement Authority or TERA). This temporary legislation was a force shaping drawdown tool and not an entitlement.  According to MPFL 95-26 dated 19 Apr 95 (Exhibit A), the Fiscal Year 1996 Voluntary Early Retirement Program application period began 1 May 95; retirement effective dates for officers could be no earlier than 1 Oct 95. According to MPFM 96-41, dated 14 Jun 96 (Exhibit D), the requested retirement date could be no earlier than 1 Oct 96 and no later than 1 Sep 97. Members under investigation or pending involuntary separation action, court-martial/civil charges/procedures and appellate leave or dismissal were to be excluded from early retirement eligibility consideration. Members with approved or pending early retirement who were placed under investigation, etc., were to be identified and coded for cancellation of early retirement. If the code were later cleared, the early retirement could be reinstated.
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The following information was extracted from the applicant’s military personnel records, the Article 32 Report of Investigation (ROI), the Record of Trial (ROT), available OGD documents, the Air Force Court of Criminal Appeals (AFCCA) review, etc., which are provided at Exhibit B.

The applicant had prior enlisted service with the Nebraska Air National Guard (ANG). He was commissioned as a 2nd lieutenant and entered active duty on 25 Aug 78.  He was ultimately promoted to the grade of LTC effective 1 Sep 94.

During the period in question, he was stationed at McConnell AFB, KS, first as the base comptroller of the 22nd Air Refueling Wing (22ARW) from 1 Jan 94-31 Dec 95, and then as the Comptroller Flight Commander from 1 Jan 96-2 May 96.

The 22ARW Judge Advocate disseminated a memo dated 8 Aug 95 to all commanders and first sergeants regarding unprofessional relationships and fraternization and which included a talking paper on this subject. 

Between Oct 95 and Jan 96, the applicant and a senior airman SRA X), a defense paralegal, allegedly had a romantic relationship that included dancing and drinking at the combined officers/noncommissioned officers club and local nightclubs, visiting each other’s apartments, kissing, and engaging in sexual intercourse.  

After SRA X departed for her new assignment in Jan 96, the applicant allegedly began a relationship with SRA 2, whom he knew from singing in the chapel choir and from attending aerobics classes.  In Feb 96, they both attended a medical unit-sponsored party, during which they danced closely together. SRA 2 allegedly started kissing the applicant on the neck and engaged in mutual open-mouthed kissing. They also danced at the “combined” military club and off-base nightclubs.  At the end of Feb 96, they had a two-hour personal conversation in the applicant’s van, outside the SRA’s dormitory, in view of other airmen entering/leaving the dormitory.

On 29 Apr 96, the McConnell AFB Staff Judge Advocate requested the AF Office of Special Investigations (AFOSI) investigate the applicant for alleged affairs.  Apparently, SRA 1 had told both her girlfriend (SRA 3) and her ex-boyfriend (Capt 1) about her relationship with the applicant. [Pursuant to a request from the AFBCMR Staff, the AFOSI confirmed that an OSI investigation on the applicant was conducted; however, the file could not be located. Statements taken by OSI agents that were included with the Art. 32 ROI and as Exhibits with the ROT are provided at Exhibit B.]

On 2 May 96, the applicant was removed from his position and assigned to the wing commander as a special assistant.

On 25 Sep 96, the applicant was charged with misconduct. Charge 1 included two specifications of fraternization and one specification of adultery; Charge 2 included two specifications of conduct unbecoming an officer and a gentleman.  A copy of the complete original Charges and their Specifications are provided at Exhibit B.

On 25 Sep 96, the 22ARW commander appointed an investigating officer (IO) to conduct an Article 32 investigation of charges against the applicant.  In his 28 Sep 96 ROI, the IO noted the actions taken against others involved in the case: Capt 1 (SRA 1’s ex-boyfriend) received an Article 15; SRA 2 received a Letter of Reprimand, a cancelled assignment and delayed promotion to staff sergeant; and SRA 1 received an Article 15. The IO recommended court-martial, rather than administrative action or non-judicial punishment, in view of the actions taken against the other parties and because he believed the evidence and the credibility issue required a court-martial’s impartial review. The IO recommended that all Charges and Specifications be referred to a general court-martial except for Charge 1, Specification 2, which pertained to the applicant’s conduct with SRA 2.  The IO recommended its dismissal because of lack of reasonable grounds to conclude the applicant violated the then-existing customs for behavior of Air Force officers at McConnell AFB.  However, all Charges and Specifications were referred for general court-martial.

On 4 Oct 96, the 15th Air Force (15AF) Judge Advocate recommended to the 15AF commander (the convening authority) that, contrary to the Article 32 IO’s conclusions, all Charges and Specifications should be referred to trial by general court-martial.  The 15AF commander concurred that same day.

In a 26 Nov 96 memo to the 22ARW commander, the applicant requested retirement in lieu of court-martial. At this time, he had approximately 18 years and 7 months of active duty.  On 30 Nov 96, the 15AF commander advised the applicant he would not recommend retirement and returned the application without action until completion of the court-martial.

On 5 Dec 96, a general court-martial found the applicant guilty of two amended specifications of fraternization, one specification of adultery, and two amended specifications of conduct unbecoming an officer.  The applicant had pled not guilty to all Charges and Specifications. He was sentenced to confinement for three months and dismissal.  The ROT transcript and the summary of the Charges, Specifications, Pleas and Findings are at Exhibit B. 

On 16 Dec 96, the 15AF commander waived the automatic forfeitures of pay and allowances applicable in this case for a period of three months and directed that the entire amount waived be paid to the applicant’s wife.

On 17 Jan 97, the 15AF Judge Advocate found the sentence adjudged appropriate for the offenses committed and recommended that the sentence be approved.

On 28 Jan 97, the Officer Performance Report (OPR) for the period 1 Jan 96-5 Dec 96 was referred to the applicant.  He was marked “Does Not Meet Standards” in the following Performance Factors: Leadership Skills, Professional Qualities, and Judgement & Decisions.  The rater also commented on the applicant’s court-martial conviction for fraternization, adultery and conduct unbecoming an officer.  The additional rater concurred and noted that comments were not received from the ratee within the required period.

On 21 Feb 97, the applicant submitted a clemency package to the 15AF commander, asking that the dismissal be changed to a fine of between $5,000-10,000.  The 15AF commander declined to grant clemency and approved the sentence as adjudged on 5 Mar 97.

On 11 Feb 99, the Air Force Court of Criminal Appeals (AFCCA) reviewed the applicant’s appeal, modified the findings, but affirmed the sentence adjudged. According to their opinion, the applicant asserted that the military judge erred in failing to grant a discovery motion and in instructing the court members.  He also raised issues concerning his sentence and the argument by the prosecutor. Regarding the discovery issue, in an order dated 24 Jun 98, the AFCCA had faulted the military judge for failing to review materials in camera which may have indicated SRA 1 was not credible.  The AFCCA had obtained and reviewed the material and noted that, contrary to the applicant’s expectations, the inquiry officer’s findings were “inclusive,” not that SRA 1 was not credible.  The AFCCA did not find error, or anything more than harmless error, in the military judge’s instructions. The sentence was found appropriate; however, the automatic pay and allowances forfeitures that were collected were improper and would be restored. This was because the AFCCA could not conclude with any certainty that the applicant had fraternized with SRA 2 after 1 Apr 96. According to Article 58b of the UCMJ, if at least one of the offenses an accused was convicted by general court-martial of committing occurred on or after 1 Apr 96, and the sentence included a punitive discharge and confinement, the accused would automatically forfeit all pay and allowances during confinement. The AFCCA further noted that an accused cannot be convicted of fraternization under Article 134 and conduct unbecoming an officer under Article 133 for the same underlying conduct. Where the misconduct alleged in the specifications is identical, the fraternization offense is dismissed. Since the fraternization offense with SRA 2 alleged more specific acts of misconduct than did the conduct unbecoming an officer offense, the AFCCA set aside the conduct unbecoming an officer offense. 

As a result of the AFCCA review, the findings of guilty of specification 1 of Charge I (fraternization with SRA 1) and specification 2 of Charge II (conduct unbecoming and officer with SRA 2) were set aside and dismissed, all forfeitures already collected were to be restored, and the sentence was affirmed.

On 22 May 99, the applicant applied for retirement.  At this time, he had approximately 21 years of active duty.

On 24 May 99, the commander, 22nd Comptroller Flight (of the 22ARW), advised the applicant that, as a result of his general court-martial, an officer grade determination, as required by Title 10, USC, Section 1370, would be made by the Secretary of the Air Force (SAF), or designee. On 24 May 99, the applicant submitted a written presentation for consideration.  On 30 May 99, he submitted a letter to the Air Force Personnel Board requesting that he be allowed to retire in the grade of LTC.

On 8 Jun 99, the 22nd Comptroller Flight commander recommended to the 22ARW commander that the applicant be retired in the grade of LTC, believing he had been sufficiently punished for his actions. On 14 Jun 99, the 22ARW Staff Judge Advocate recommended to the 22ARW commander that the applicant not be allowed to retire and, if he were allowed to retire, it should be in the rank of major. By first indorsement to the 8 Jun 99 letter, the 22ARW commander nonconcurred with the 22nd Comptroller Flight commander’s recommendation and, instead, recommended to HQ Air Mobility Command (AMC) that the applicant be dismissed from the Air Force, citing what he believed were aggravating circumstances that justified the adjudged dismissal. 

On 14 and 16 Jul 99, the applicant submitted rebuttal letters to the 22ARW commander and HQ AMC, respectively.  On 26 Jul 99, the HQ AMC Office of the Staff Judge Advocate recommended that the applicant’s dismissal should stand or, in the alternative, he be retired as a major.

On 11 Aug 99, the AMC vice commander recommended that the SAF execute the court-martial sentence of dismissal and, if not, that the applicant not be allowed to retire in the grade of LTC. The vice commander indicated that the applicant served less than three years as a LTC and his misconduct spanned for more than half that time.

[An unsigned 10 Sep 99 decisional memo from the SAF Personnel Board to the Director of the Review Boards Agency recommending that the applicant’s request for retirement be denied and he be dismissed as adjudged is provided by the applicant at Atch 2 of Exhibit A.  On 6 Aug 01, the SAF Personnel Board Staff advised the AFBCMR Staff that the file containing their decisional memo was no longer available.] On 13 Sep 99, the SAF Personnel Board recommended that the applicant be dismissed from the service, but that if he was allowed to retire, it be in the grade of major. On 19 Oct 99, the SAF denied the applicant’s request for retirement and directed his dismissal. By GCM No. 2, dated 19 Oct 99, his dismissal, effective 15 Nov 99, was executed.

On 15 Nov 99, the applicant was dismissed from the Air Force with a bad conduct discharge.  He had 21 years, 2 months and 20 days of active service.

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AIR FORCE EVALUATION:

The Associate Chief, AFLSA/JAJM, reviewed the appeal and provided his rationale for recommending denial.  

A complete copy of the evaluation is at Exhibit C.

The Retirement Programs & Policy Section, HQ AFPC/DPPRRP, notes that, at the time the applicant submitted his request in Nov 96 to retire in lieu of court-martial, he was not eligible for retirement.  Because he was under investigation or pending involuntary separation action, court-martial/civil charges/procedures and appellate leave or dismissal he was not eligible for Fiscal Year Temporary Early Retirement Authority (TERA) program. Denial is recommended.

A complete coy of the evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant takes exception to the legal staffs’ labeling his behavior as “egregious.”  The wing commander would not have taken the positive actions he did if his [the applicant’s] reputation and behavior were that blatant and egregious.  The actions for which he was convicted occurred between Oct 95-Feb 96. The investigation did not commence until the end of Apr 96.  The AF Personnel Board reported to the SAF that he was not retirement eligible at the time he committed the offenses and therefore the only appropriate resolution in his case was to dismiss him.  He believes he was retirement eligible before the offenses occurred and the investigation began in Apr 96 and could have retired effective Oct 95 had he applied for the program. Any time during the investigation, the commanders could have issued him a Letter of Reprimand (LOR), closed the case and allowed him to retire.  Further, the one condition where retirement “should” not be allowed is the “under investigation” category, which implies it is possible but not recommended. None of the other 12 conditions even opens the possibility.  He stands convicted of a single incident of adultery, one specification of fraternization and one specification of conduct unbecoming an officer. There was never any favoritism, partiality, or disruption to good order and discipline.  The government invested a lot of time and money to “throw the book” at him.  His actions were wrong, but his punishment was far more excessive than it should have been.  He asks that his outstanding performance record be considered and he be allowed to retire.

A complete copy of applicant’s response is at Exhibit F.

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice to warrant setting aside the applicant’s dismissal and allowing him to retire in the grade of LTC.  The applicant argues, in part, that the sentence he received for his offenses was unduly harsh compared to similar cases and was the result of extreme prosecution likely driven by racial prejudice.  This Board weighs the merits of each appeal before its consideration on an individual basis; we are not privy to the particulars of other fraternization cases to which the applicant apparently wants to be compared and which have not come under our purview.  We do not disagree that the penalty the applicant paid for his misconduct was severe; however, the majority of the Board does not believe that this inherently renders it unjust or improper. The majority notes that the applicant’s misconduct was not an isolated incident, apparently having occurred over several months with two junior female enlisted members. He disregarded the training he undoubtedly received over more than 18 years of service as an officer.  He was married at the time of his offenses, his indiscrete conduct often took place in view of mixed ranks and, as a superior officer, he set an unacceptable example for those under his command. Further, the AFCCA considered the sentencing issues raised by the applicant.  As indicated in their brief, the AFCCA gives individualized consideration to the nature and seriousness of the offenses and the character of the offender. The AFCCA noted that the applicant ignored several signals that he should end his illegal conduct. After careful consideration, the AFCCA found that the collection of automatic forfeitures of the applicant’s pay and allowances during his confinement was improper and should be restored, that the findings of guilty of fraternization with SRA 1 and conduct unbecoming an officer with SRA 2 should be set aside and dismissed as multiplicious, and that the sentence was appropriate and correct.  The applicant also asserts that he was retirement eligible and should have been allowed to retire in the grade of LTC.  He adds that had he applied, he could have retired effective Oct 95. The fact is that he didn’t, and even if he had, Attachment 2 to MPFL 95-26, dated 19 Apr 95, stipulates that in order to retire in the grade of LTC, the member had to be in that grade for two years. With a date of rank to LTC of 1 Sep 94, the applicant did not meet the time in grade requirements in Oct 95. Subsequent to that, he was under investigation. Given the seriousness of the charges being investigated and tried, the majority believes that approval of his retirement application would have been inappropriate.  The majority of the Board is not persuaded by the applicant’s essential belief that he was entitled to retirement merely because he may have been eligible and requested it. The applicant’s numerous contentions were reviewed at several levels and found insufficient to overturn the actions taken against him. There is no question that he paid a high price for his misbehavior. However, in the final analysis, he has not provided a compelling basis upon which the Board majority could conclude that his court-martial, officer grade determination, and ultimate dismissal were in error or unjust.  Therefore, the majority of the Board concludes that this appeal should be denied in its entirety.

4.	The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered.

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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered this application in Executive Session on 30 August 2001 under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

By a majority vote, the Board recommended denial of the application.  Ms. voted for partial relief in the form of allowing the applicant to retire in the grade of major and has submitted a Minority Report, which is at Exhibit G. The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 30 Jan 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 21 May 01.
   Exhibit D.  Letter, HQ AFPC/DPPRRP, dated 18 Jul 01, w/atchs.
   Exhibit E.  Letter, SAF/MIBR, dated 20 Jul 01.
   Exhibit F.  Letter, Applicant, dated 2 Aug 01.
   Exhibit G.  Minority Report.

                                   
                                   Panel Chair

AFBCMR  01-00377

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 
                                        FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of                             

	I have carefully reviewed the evidence of record and the recommendations of the Board members, including the dissenting member’s Minority Report.  A majority found that the applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and the majority’s conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.

						
						Director
						Air Force Review Boards Agency

AFBCMR 01-00377 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                                         CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  Minority Report - AFBCMR Application of                                

	The applicant was dismissed from the Air Force on November 15, 1999, following a general court-martial in which he was convicted of fraternization with two junior enlisted members, adultery, and conduct unbecoming an officer. The applicant appeals for his dismissal to be set aside and he be allowed to retire in the grade of lieutenant colonel (LTC). In Executive Session on August 30, 2001, a majority of the Board determined that his request should be denied.  I disagree and instead recommend that partial relief be granted in the form of allowing the applicant to retire in the grade of major.  

	I do not believe this appeal can be considered in a vacuum.  As a civilian with many years of experience interacting with Air Force military personnel and as a participant in the correction of records process on this Board, I can’t help but contrast how harshly the applicant was punished compared to other fraternization cases of which I am aware.  The applicant, an otherwise stellar officer, was removed from his position and given a referral officer performance report.  His career for all intents and purposes was already over.  Even conceding the merit of the Article 32 Investigation Officer’s opinion that a trial was probably the best arena in which to impartially evaluate the credibility of the participants and witnesses, the sentence imposed did not fit the “crime.” The applicant was confined with hardened criminals for three months.  Surely, this was sufficient humiliation and punishment.  In fact, the 22nd Comptroller Flight commander supported the applicant’s retirement in the grade of LTC, citing his outstanding service and already ample punishment.  The commander pointed out that others similarly situated were allowed to retire in the grade held.  Also noteworthy were the statements by senior officers who had personal knowledge of the applicant’s performance during the period involved included in the applicant’s clemency package.  While not disagreeing with the court findings and sentencing, one of the jury members of the applicant’s court-martial supported the applicant being allowed to retire in view of his years of service, family situation and having already served three months’ confinement.  In addition, the former 22nd Air Refueling Wing vice commander indicated that, given all of the circumstances, some leniency was warranted by allowing the applicant to retire. 

	The applicant contends, in part, that the severity of his sentence may have been driven by racial prejudice.  I do not believe he has established his case on this basis, but I am convinced that he could have been the victim of overzealous accountability.  Following the Navy Tailhook publicity and the Black Hawk shootdown, the demand for strict accountability over the next few years was pursued with such zeal that fairness and equity were sometimes left behind.  I think to a certain degree that’s what happened here.  Similarly, there was considerable publicity about other Air Force and Army fraternization cases that led to a climate of overreaction.   I would also note that the most well publicized cases did not result in a bad conduct discharge.  In this case, contrary to the others, the applicant did not mount a media defense and instead trusted the Air Force command structure and military legal system. While the applicant’s misbehavior should not have gone unpunished, I suspect that in another time it would not have had such devastating, long-term consequences.  Not only was he denied retirement, he continues to be denied the opportunity to pursue civilian employment to the fullest extent of his abilities due to the bad conduct discharge.

	Accountability in this instance ought to be shouldered in part by his senior leadership.  Based on the available evidence, the applicant’s actions were witnessed by members of the senior command staff and others at the social events cited as evidence, yet his superiors apparently did not take any preliminary steps such as counseling him or issuing a direct order to cease his misconduct.  Had they done so, perhaps the applicant would have rectified his behavior before it escalated to the point of no return. Instead, their turning a blind eye on his conduct at the time connotes a level of tolerance that may have been typical given the combined club/dining facility and mixed social events on the applicant’s base.  The documentation available to this Board did not specify what led to the request for an OSI investigation.  The possibility exists that it may have been the result of another investigation in which someone “offered up” the applicant to mitigate their own punishment.  It is disturbing that documents that should have been available to clarify board members’ questions were not retained as required -- the OSI report and the SAFPC file with its decisional memo.  Nothing in the available information indicates that the applicant’s behavior involved relationships with individuals within the comptroller organization or chain of command or adversely affected morale, discipline or mission accomplishment.  Neither were they coercive or were there allegations of sexual harassment.  

	I believe a more equitable punishment would have been to allow the applicant to retire in the grade of major.  In this regard, I note the applicant was promoted to LTC effective September 1, 1994.  The investigation revealed that his misconduct began between October 1995 and January 1996. Consequently, I do not believe he served satisfactorily in the grade of LTC and should not be allowed to retire in that grade.  However, given his otherwise outstanding performance, the nature of his offenses, the heightened sense of accountability at the time, the lack of command intervention prior to the investigation, the atmosphere of the base, and the atypical punishment he received, I strongly recommend that the dismissal portion of his punishment be set aside and he be allowed to retire in the grade of major effective November 15, 1999.  

					
					Board Member