RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00308
		INDEX CODE:  126.00, 129.04
		COUNSEL:  

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  The Officer Grade Determination (OGD) decision that he be retired in the grade of lieutenant colonel be set aside.

2.  His promotion to the grade of brigadier general be reinstated and he receive back pay and allowances.

3.  His nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) be set aside.

4.  He be placed in the position he would have been in if no action would have been taken against him.

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APPLICANT CONTENDS THAT:

After his selection for promotion to brigadier general, a number of allegations were made, which resulted in his removal from the brigadier general promotion list.  As a result of an OGD decision, after over 27 years of active duty service, he had to retire in the grade of lieutenant colonel.  The cost to the applicant could be close to a million dollars.  This is especially egregious since the alleged misconduct probably warranted nothing more than a counseling or arguably a "desk-drawer" letter of reprimand (LOR).  Prior to 1995 the OGD process was used very sparingly, usually in courts-martial cases, and normally they did not result in a reduced retirement grade.  Suddenly, the number of OGDs doubled and more than tripled and the number of cases resulting in actual reductions skyrocketed.  While the number of OGDs resulting from courts-martial remained relatively stable, Article 15s (which according to the Manual for Courts-Martial are for MINOR offenses) were increasingly being used to justify penalties that it would take multiple courts-martial to impose.  The investigative report indicates that unnamed individuals first reported the allegations against the applicant.  Applicant believes that one of the individuals is his wife's former spouse who believes that the applicant alienated him from his former spouse.

With respect to the allegation that he abused his authority on 2 Jan 98 by placing his dependents on a KC-135 aircraft without being in properly authorized leave status, applicant states that during the past 2 years, he had taken ordinary leave twice, normally in conjunction with temporary duty (TDY).  As a result, he was somewhat unfamiliar with the intricacies of the ordinary leave process.  He was advised that as a commander he could authorize his own leave when he and his commander were geographically separated.  Two individuals witnessed his leave documentation and he left a copy with the base dispatcher.  He believes that he was in a properly authorized leave status.  Counsel states that anyone who has served on active duty knows that the leave process is an amorphous amalgam of standards that even JAG's cannot honestly understand.

With respect to the allegation that he abused his authority on 8 Jan 98 by placing his dependents on a KC-135 aircraft without being in a properly authorized leave status, applicant states that he filled out a leave form, had it stamped at the passenger terminal, but it wasn't processed through the orderly room properly.  The previous year he had lost 19 days of leave because he failed to use it in time.  Like most senior officers in his position, he had leave to burn and no incentive not to use it up.  

Regarding the allegation that he misused Government resources by using an Air Force staff car for personal purposes during the period 2 - 8 Jan 98, applicant states that this period was essentially a working leave period and with the one exception he used the GOV for valid duty-related purposes.  The one exception was when he drove the GOV to the terminal to get a rental car for his wife.  Since he had no other transportation, applicant believes it is more than a stretch to categorize this as an abuse.

Regarding the allegation that he inappropriately logged flight time when he was in a non-crew member status, applicant states that he was trying to do a favorable evaluation for the crew of the aircraft and believed that he needed to qualify as a non-crew member in order to do so.  There was no personal advantage for doing this. 

Regarding the allegation that he inappropriately discussed the substantive nature of an on-going Inspector General (IG) investigation after being directed not to discuss the matter, applicant states that aside from the questionable proposition that the giver of the order was qualified as a superior, the main purpose of this rule is to protect the privacy of the person being investigated (in this case himself).  If he voluntarily waives the privacy issue, where's the harm.  

Regarding the allegation that he inappropriately filed travel vouchers outside of the filing guidelines, applicant states that with a military job that requires frequent travel, getting every travel voucher in on time is a virtual impossibility.  While it is understandable that the finance office wants to keep order, service members have to prioritize their time and often cannot cross every "T" and dot every "I" because there is simply not enough time to do so.  Taking time to do a better job of attending "nitnoid" administrative actions would probably lead to not getting the main job done.  

Regarding the allegation that he claimed as TDY time, time he spent at a golf tournament, applicant states that he had indeed received a message stating that those attending the golf tournament, during a scheduled 3-day TDY should count that time as leave.  But when he filed his voucher he forgot to annotate his voucher listing this exception.  It was an honest oversight, not an intentional omission to collect any extra money.  

After having worked 26-27 years to make promotion to brigadier general, it is not at all likely that anyone is going to risk it all by going AWOL or cheating the Government for a few days leave when it is not unusual for you to lose the extra leave days you have accumulated by the end of the fiscal year, or intentionally doing any of the other alleged offenses in this case.  Admittedly he should have submitted his travel vouchers earlier, and it probably created some administrative work for the folks at finance.  But in effect it was an interest-free loan to the Government and clearly was not done with the intent to defraud anyone (although he may have cheated himself out of money by doing so).  This is the type of matter that should have been handled by a phone call to the applicant or his supervisor.  If there had been a continuing problem the supervisor could have called the applicant and told him to get it done.  At worst, a "desk-drawer" letter of reprimand might (but probably would not) have been necessary.  Even if the Board is not ready to declare the OGD process illegal, this case does not warrant a million dollar penalty.  There was no intentional misconduct, a review of his character references and his performance reports reveals that he was, and remains, an honorable man.  

In support of his request, applicant provided his counsel's brief, documentation associated with his removal from the promotion list, retirement pay and Survivor's Benefit Plan (SBP) comparisons and statistics, documentation associated with his IG investigation; AF Forms 988, Request and Authorization for Leave; documentation associated with his OGD determination, OGD analysis data, excerpts from newspaper articles, AMC/CV message 211407Z Aug 97, and character references.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force and was voluntarily ordered to extended active duty on 20 May 72.  He was progressively promoted to the grade of colonel, having assumed that grade effective and with a date of rank of 1 Aug 89. 

He was selected for promotion to the grade of brigadier general by the Calendar Year 1997 (CY97) Brigadier General Selection Board.  On 14 Oct 98, he was notified that the President of the United States removed his name from the brigadier general promotion list.  

On 18 Sep 98, the applicant was notified by his commander of his intent to recommend nonjudicial punishment under Article 15 of the UCMJ for failure to follow proper leave procedures and failure to comply with the guidelines and restrictions on attendance at the Airlift Tanker Association convention, in violation of Article 92, UCMJ; and for, with intent to deceive, signing official documents, AF Form 781s, which forms were false and he had not in fact performed evaluator pilot flight duties, in violation of Article 107, UCMJ.  He was advised of his rights in this matter and acknowledged receipt of the notification on 23 Sep 98.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written and oral presentation to his commander.  On 25 Sep 98, after consideration of all the facts, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  He was ordered to forfeit $3,230 pay per month for 2 months and was reprimanded.  The applicant appealed his punishment to HQ AMC/CV.  His appeal was denied.  

On 19 Mar 99, the Secretary of the Air Force Personnel Council, acting on behalf of the Secretary, determined that the applicant did not serve satisfactorily in the grade of colonel and that he did serve satisfactorily in the grade of lieutenant colonel and directed that he be retired in that grade.  The applicant retired on 31 Jul 99.  He served 27 years, 2 months, and 11 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states that the applicant contends that he never signed the AF Form 781 and therefore did not violate Article 107.  However, Article 107 also makes it a crime for a person to make a false official statement, a provision not requiring an actual signing by the person.  Conflicting evidence exists in this case.  It is the function of the finder of fact to weigh the evidence and reach a reasonable conclusion.  It was reasonable for the commander to conclude that the weight of the evidence supported a finding that the applicant had engaged in the proscribed conduct.  

An Article 15 is not a formal legal proceeding with the attendant formal rules of charging, proof, and evidence.  Its purpose is to provide commanders with a prompt means of maintaining good order and discipline and of promoting positive behavior changes without the stigma of court-martial, where the offenses are relatively minor in nature.  The applicant willingly chose nonjudicial punishment proceedings, vesting his commander with the authority to determine his guilt or innocence.  After weighing all the evidence, including the credibility of the various witnesses, the commander determined that there was sufficient evidence to conclude that he had committed the offenses.  The punishment imposed was not excessive in relation to the nature of the offense charged.  His complaint relies with the result, not the process.  The applicant's arguments failed to convince the commander who imposed the punishment and the appellate authority.  The findings are neither arbitrary nor capricious and should not be disturbed.  When evidence of a clear error or injustice is missing, it is clear that the BCMR process is not intended to simply second-guess the appropriateness of the judgments of field commanders.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.  The JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states that close review of the 1999 SAF Personnel Board decision reveals that they do not address the defenses raised by the applicant, they simply ignore them.  They say that the applicant asserts that he completed nine years satisfactory service as a colonel but they assert that his alleged misconduct covers several of those years.  This is irrelevant.  The statute requires that he serve two years satisfactorily in the grade of colonel to retire in that grade.  None of the allegations against him go back before 1995 and he pinned on colonel in 1989, giving him at least six years of satisfactory service in that grade.  

As for the allegation of signing a false AF Form 781, besides the fact that there was no evil intent, a copy of the 781 shows that his signature or initials do not appear anywhere on the form.  Regarding the allegation that he failed to follow leave procedures, counsel states he was given massive responsibility for a group and he is forced to rely on administrative assistants because of the demands of his job.  Then he gets nailed for not crossing every "T" and dotting every "I."  Anyone on active duty knows there is confusion about what the exact rules governing leave procedures are.  Bottom line, why would anyone who routinely loses leave at the end of the fiscal year, bother to cheat on leave?  Regarding the restriction on attendance at the ATA conference, counsel states that the applicant mistakenly forgot to deduct the golf-day as a leave day.  He lost 17 days of leave that year anyway, what did he cheat the government out of?  

Regarding the Article 15 and OGD issue, counsel states that the 89AW/CC was the reporting official at the time he applied for retirement, then he, not the 21AF/CC should have initiated the OGD action.  In that case all the recommendations would have been that he be allowed to retire as a colonel, which presumably would have had an impact on the decision.  The commander did not cross off any of the allegations on the Article 15 form.  By not doing so, those who made the decision to impose the grade reduction relied on the belief that the applicant was guilty of all the listed misconduct...and if he was innocent of even one of them, then he did not get fair consideration.  

The JAJM review basically says that the commander was in the best position to consider the evidence and the Board should not second-guess him.  JAJM does admit that the applicant never signed the Form 781 but states that his alleged false statement would constitute a violation of Article 107.  There is no evidence to rebut the applicant's perfectly reasonable explanation.  The government apparently either could not or would not get statements from crew members or the Chief of Evaluation who both would have been able to deny what the applicant stated if he were lying.  JAJM is not unreasonable in saying the commander should not [normally] be second-guessed.  But adequate evidence has been presented to show it would not be unreasonable for the Board to overrule the commander under the circumstances of this case.  

The penalties imposed on the applicant are excessive when you consider the comparatively minor nature of the alleged infractions and the literally top one percent career of the applicant.  In particular, the OGD action in addition to the Article 15 and humiliation of being publicly taken off the BG list was clearly overkill.  Counsel's complete submission, with attachments, is at Exhibit G.

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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 either an error or an injustice warranting favorable action on the applicant’s requests for setting aside the nonjudicial punishment imposed upon him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ); promoting him to the grade of brigadier general with back pay and allowances; setting aside the Officer Grade Determination (OGD) which held that he had not served satisfactorily in the grade of colonel; and he be placed in the position he would have been in if no action would have been taken against him.  Applicant contends that:

a.  The OGD action was misused and he was not guilty of the offenses charged in the Article 15.  He states it was his intention to have his wife and stepdaughter fly to Panama, on 2 January 1998, while he flew as an aircrew member on the same flight.  When learning he had to be in a leave status, he accomplished a leave form using the same leave number he had received for previously scheduled leave he had taken 30‑31 December 1997.  He simply extended the leave dates on the original leave request.  Two individuals witnessed his leave documentation and a copy was left with the base dispatcher.  The applicant acknowledges he should have called 21 AF and/or had someone in the Group sign his leave form.  He believed he was in a properly authorized leave status when he went to Panama.  Neither copy of his leave request -- for December 1997 or January 1998 -- reached the orderly room.

b.  During the trip from Robins AFB to Panama, the applicant chatted with the boom operator when he was completing an AF Form 781, mission data summary.  The applicant asked the boom operator to log evaluator time for him (the applicant) because the applicant wanted to write a formal evaluation of the crew.  The boom operator informed the applicant a person cannot log flight time while in leave status.  The applicant being unfamiliar with this rule, asked the boom operator to log the time and the criteria for logging evaluator time would be determined at a later date.  After the flight, the Chief of Standardization and Evaluation at Robins AFB confirmed that flight time cannot be logged while in leave status.  The applicant then asked that his name be removed from the AF Form 781, which did not occur.  The Article 15 alleges the applicant, with intent to deceive, signed an official document, to wit, the AF Form 781, which he knew to be false.  The applicant argues he did not sign the document, did not make a statement on the form, and did not make a false official statement.

c.  In October 1997, a one-day golf tournament was held during the Airlift Tanker Association convention, which the applicant attended TDY.  An AMC guidance message informed all attending the three-day convention they should take leave if they attended the golf tournament.  When the applicant completed his travel voucher he forgot to annotate the day of leave.  He alleges his action was merely an oversight on his part and not a willful intent to disregard the ATA convention guidance.  He contends his action was not a willful dereliction of duty.

4.  The Associate Chief, Military Justice Division, recommends denial of the request to set aside the nonjudicial punishment under Article 15, UCMJ.  He advises, in part, that the applicant contends he never signed the AF Form 781 and therefore did not violate Art. 107.  However, Art. 107 also makes it a crime for a person to make a false official statement, a provision not requiring an actual signing by the person.  As is often the case, there exists conflicting evidence.  It is the function of the finder of fact to weigh that evidence and reach a reasonable conclusion.  It was reasonable for the commander to conclude that the weight of the evidence supported a finding that the applicant had engaged in the proscribed conduct.  The Associate Chief, Military Justice Division, goes on to say that applicant made his election to resolve the allegation in the nonjudicial forum after having been advised that his commander would make the decision whether he had committed the offenses.  He placed the responsibility with his commander to weigh all the evidence, including the credibility of the various witnesses, and make a decision, instead of demanding his right to trial by court-martial, with all its attendant rights and formal procedure.  He chose instead to handle the issue in the less formal nonjudicial punishment forum, with its much less severe consequences.  In this case, the commander concluded that applicant had committed the offenses.  The Associate Chief states further that there was sufficient evidence for the commander to determine the offense had been committed and applicant’s arguments clearly failed to convince the commander who imposed punishment and the commander who reviewed his appeal.  While different fact finders may have come to a different conclusion, the commanders’ findings are neither arbitrary nor capricious and should not be disturbed.

5.  On September 25, 1998, the applicant received the Article 15 and his selection for promotion to brigadier general was subsequently canceled.  On October 26, 1998, he submitted a request for voluntary retirement to be effective April 1, 1999.  On November 20, 1998, 21 AF/CC notified him that the OGD was being initiated as a result of the Article 15 received within two years of his retirement application.  Had he waited until two years after receipt of the Article 15, an OGD would have been at the discretion of his command and may not have materialized.  In any event, the Air Force Personnel Board was deeply impressed with the applicant’s duty history, which culminated in his selection for promotion to brigadier general.  Nonetheless, the Board concluded that, had his misconduct come to light sooner, he would never have been selected for promotion to the higher grade, and, therefore, gave no weight to his claims that he was losing $400,000 as a result of his lost promotion.  Finally, the Board considered the conflicting recommendations of his chain of command and their supporting rationale.  After carefully reviewing these factors, the Board determined that applicant’s duty performance as a colonel, while indicating superior performance, was nevertheless outweighed by the seriousness of his misconduct and recommended that he be retired in the grade of lieutenant colonel.  The Director, Air Force Review Boards Agency, approved the Personnel Board’s  recommendation and directed the applicant’s retirement in the grade of lieutenant colonel on June 1, 1999.

6.  Counsel continues to argue the validity of the substantiated allegations against the applicant and argues that the OGD process is being misused.  He also raises the argument about the possibility of a vendetta against the applicant because he had married the spouse of a fellow officer.  In addition, he points out the disparate treatment between the applicant and General “R” who had an adulterous affair with the wife of a fellow senior officer.  Lastly, he challenges the Air Force’s interpretation of 10 USC 1370.  Specifically, he believes that the applicable statute requires only six months of satisfactory service in grade to retire in that grade; and that since the applicant had over nine years in the grade of colonel, he cannot be reduced in grade.  On the other hand, the Office of The Judge Advocate General has stated in a like case that the courts have repeatedly rejected this interpretation of Section 1370 and other similar retirement grade statutes.  Six months is the minimum time in grade that an officer must serve satisfactorily before becoming eligible for retirement in that grade.  It has no other relevance to the OGD process.  For example, in the case of Randolph v. United States, 179 Ct. Cl. 425,433 (1967), the court interpreted the Air Force retirement statute predecessor to Section 1370, concluding that the Secretary was permitted to view Randolph’s entire service record to determine if his performance was satisfactory in the higher temporary grade.  After 23 years of total service in the Air Force, Randolph was retired at the grade of lieutenant colonel even though he had performed satisfactorily for 16 of those years in the temporary grade of colonel.  Months before his retirement, however, Randolph had pleaded guilty to misdemeanor charges of converting certain property for his own use.  He had argued that it was inconceivable that such an incident was of sufficient weight to overcome the presumption of satisfactory service reflected by 23 years of spotless performance evaluations.  However, the court permitted the Secretary to consider Randolph’s entire service in the temporary grade to determine his retirement grade, rather than limiting the Secretary’s consideration to his first six months of service in his higher grade.

7.  The Office of The Judge Advocate General has also addressed the characterization of the OGD process as “punishment.”  That office has stated that the Air Force has long taken the position that officer promotions are not rewards for past performance.  Instead, promotion represents an appraisal of one’s potential to perform in more challenging positions.  Likewise, retirement in a lower grade is not “punishment” for misdeeds, but simply a realignment of an officer’s rank who does not perform satisfactorily.  Contrary to the apparently widespread perception in the field of the grade determination statute, the truth is that a single but serious deviation from minimum standards may obviate a long and otherwise satisfactory, or even salutary, period of service.  The governmental interests in insuring that its military officers perform to minimum standards are so strong that the interpretation and employment of the statute could not be otherwise.

8.  Counsel’s arguments that they have good reason to believe that the initial complainants were not motivated by an honest concern that the applicant had committed an offense, but rather they were motivated by a desire to exact revenge for the applicant’s perceived breaking up of a marriage and perhaps professional jealousy at his promotion to brigadier general are duly noted.  Assuming arguendo that this is the case, unless it can be shown that the applicant was wrongfully accused, we do not find these assertions particularly relevant to the issues involved.  The indisputable fact remains that the allegations were investigated and substantiated by the Office of the Inspector General.  Based upon substantiated instances of seven specific incidents of impropriety, competent authority deemed it appropriate to impose nonjudicial punishment on the applicant (which he voluntarily accepted) and initiate action that resulted in his removal from the brigadier general selectee list. In view of the foregoing and in the absence of a showing that the IG investigation was improperly influenced, we conclude that the applicant has failed to sustain his burden of establishing the existence of either an error or an injustice warranting favorable action on his requests. 

9.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2002-00308 in Executive Session on 29 Apr 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Jan 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 20 Jun 02.
    Exhibit D.  Letter, SAF/MRBC, dated 27 Feb 03.
    Exhibit E.  Letter, SAF/Personnel Board, dated 17 Mar 99.
    Exhibit F.  Letter, SAF/MRBC, dated 27 Feb 03.
    Exhibit G.  Letter, Counsel, dated 23 Mar 03, w/atchs.