RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  02-00431
		INDEX CODE 106.00 111.02  136.00
	 	COUNSEL:  VFW

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His 1995 general discharge be upgraded to honorable and he be authorized a 15-year retirement under the Temporary Early Retirement Authority (TERA) Program. 

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APPLICANT CONTENDS THAT:

He made one mistake in his entire Air Force career.  The turmoil in his personal life in the last few years with his late wife's illness for six years and subsequent death had an impact on the errors he made in judgment.  His discharge was inequitable because the policies and procedures in 1995 regarding professional/unprofessional relationships were significantly and materially different from the revisions made to the governing regulation in 1999.  If the new directive had been in effect, he would not have been subjected to a court-martial or resignation with a general discharge. [The applicant originally had an other-than-honorable-conditions (UOTHC) discharge, which was upgraded by the Air Force Discharge Review Board (AFDRB) in 1996 to a general discharge - See Statement of Facts.] He probably would have been allowed to remain on duty with a reprimand or been permitted to retire under the TERA program. He was treated much harsher than other officers who were allowed to retire with full retirement pay and benefits.  One counseling conversation would have corrected the situation and saved his entire military career. 

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The following information was extracted from the applicant's military personnel records, the Article 32 Report of Investigation (ROI), his resignation in lieu of (RILO) court-martial package, and the AFDRB file.

The applicant entered extended active duty on 28 Sep 79 and was ultimately promoted to the grade of major on 1 May 91. His performance reports from 26 Mar 80 through 22 May 93 reflect the highest overall ratings.

The applicant's wife of 10 years, who had been diagnosed with leukemia in Mar 87, died of the disease on 31 Mar 93, leaving him with a young son. At the time, he was the 35th Comptroller Squadron financial analysis flight chief at Offutt AFB, NE. On 23 Jul 93, he was assigned as the commander of the 28th Comptroller Squadron at Ellsworth AFB, SD.

SSgt C-- was the NCOIC of Quality Examination in the military pay section of the 28th Comptroller Squadron and had been in the Air Force for 11 years. Her best friend had also died of leukemia. Both she and the applicant were single parents and African-Americans. (The applicant had a one-time date with the only female African-American officer on the base; however, she was much younger and the relationship did not develop.) In Sep 93, SSgt C-- twice invited the applicant out to eat because she thought he seemed lonely. He accepted the second invitation. In late Nov 93 they had sexual relations. The applicant bought SSgt C-- a number of gifts, including an engagement ring, and on a greeting card asked her to marry him. The applicant and SSgt C-- were seen at the movies together in Jan 94. A lieutenant brought rumors of the relationship to the first sergeant, MSgt J--, who began to "investigate" by querying others. MSgt J-- spoke to the applicant in Jan and again in Feb 94, telling him that rumors were disrupting the squadron and a 3 Feb 94 "Hotline" complaint had been made to the wing commander. There was a perception of favoritism because SSgt C-- had received two awards and was being recommended for a STEP promotion. On both occasions the applicant did not deny or confirm the relationship. Apparently, however, he broke off the relationship around 6 Feb 94.

On 10 Feb 94, the applicant was relieved of his command and reassigned as an information management officer for the 28th Mission Support Squadron. Both he and SSgt C-- were given no-contact orders.

On 4 Apr 94, he was charged with violating Article 134 of the Uniform Code of Military Justice (UCMJ). Specifically, between 1 Sep 93 and 10 Feb 94, he knowingly fraternized on terms of military equality with SSgt C--, a subordinate in his direct chain of command, by engaging in sexual intercourse with her on divers occasions, and by giving her a diamond ring and a coat.  That same day, the 28th Bomb Wing commander (28BW/CC) directed an Article 32 investigation. 

The Article 32 ROI, completed on 6 Apr 94, recommended trial by general court-martial, which was subsequently scheduled for 30 Jun 94.

On 16 May 94, after consulting with counsel, the applicant submitted his RILO request for the good of the service.  He indicated his understanding that if his resignation was accepted, he would be discharged with a UOTHC characterization unless the Secretary of the Air Force (SAF) determined he warranted a general discharge. In his letter to the SAF, he asked to retire effective 1 Aug 94 with a 15-year retirement under TERA. The applicant's area defense counsel (ADC) submitted a supporting statement, pleading for compassion and that the applicant be allowed to honorably retire.

On 23 May 94, the vice commander (28BW/CV) and the staff judge advocate (28BW/JA) recommended to the 28BW/CC that the applicant's RILO be accepted and he be separated with a UOTHC discharge. The 28BW/CC concurred with their recommendations that same day, and the case was forwarded to the 8th Air Force (8AF). On 31 May 94 and 6 Jun 94, respectively, the 8AF/JA and the 8AF/CV recommended the RILO be accepted and the applicant's service be characterized as UOTHC.

On 30 Jun 94, the 28BW/CC advised the applicant that his request for a 15-year retirement needed to be submitted on an AF Form 1160; however, submission of the form did not entitle him to or guarantee retirement. The applicant was also advised that the 28BW/CC would recommend disapproval of the request for a 15-year retirement or that the applicant be retired in the grade of captain if his request was approved. 

The applicant submitted his AF Form 1160 on 30 Jun 94 with an effective retirement date of 1 Aug 94. However, he would not have had 15 years of active service on that date and therefore would not have been eligible to retire under the provisions of the TERA Program. The 28BW/CC signed the form on 6 Jul 94 and forwarded his recommendation to deny to the SAF on 6 Jul 94.  At the same time, the applicant's requested effective date of retirement was changed to 1 Oct 94.

On 1 Aug 94, the Air Combat Command vice commander (ACC/CV) recommended that the applicant's retirement request be disapproved or that he be retired in the grade of captain if approved. The case was forwarded to the Air Force Personnel Board for consideration.

On 22 Aug 94, the Officer Performance Report (OPR) for the period 23 May 93 through 22 May 94 was referred to the applicant. The report indicated he did not meet standards in the performance factors of leadership, professional qualities and judgment. The applicant submitted a rebuttal, but the additional rater (8AF/CC) concurred with the rater (28BW/CC).

While agreeing with the Air Force Personnel Board recommendation that the RILO should be accepted, the Director of the Air Force Review Boards Agency (AFRBA) disagreed with their characterization of the applicant's service as UOTHC. On 2 Dec 94, the Director recommended that the SAF accept the applicant's RILO and, in view of his otherwise honorable service, discharge him with a general characterization.

However, on 13 Feb 95, the SAF accepted the RILO and directed the applicant's separation with a UOTHC discharge.

The applicant was discharged in the grade of major on 24 Feb 95 with a UOTHC characterization. The separation program designator (SPD) code was "DFS" (Resign Triable by Court-Martial). He had 15 years, 4 months and 20 days of active service.

He subsequently appealed to the AFDRB for an honorable discharge; however, his request was denied on 21 May 96.

The applicant appealed the AFDRB decision and testified with counsel in a personal appearance before the board on 5 Oct 00, essentially making the same contentions as in the instant case. The AFDRB denied his request for an honorable discharge but did upgrade the UOTHC characterization to general. The AFDRB concluded that the UOTHC was inconsistent with punishments administered to officers who committed similar offenses, but given the serious effect of his offenses on his squadron an honorable discharge was not warranted. 

The applicant was subsequently issued a new DD Form 214 reflecting a general discharge.
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AIR FORCE EVALUATION:

HQ AFPC/DPPRS concurs with the previous decision of the AFDRB to upgrade to a general, but not honorable, discharge. The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing. He provided no other facts warranting an upgrade of the discharge. 

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPRR notes that under the TERA program criteria outlined in the MPFL 94-27, dated Jun 94, members under investigation or pending involuntary separation action, court-martial/civil charges/procedures and appellate leave or dismissal were excluded from being considered for the program. The applicant was ineligible to apply for the TERA program due to his misconduct.  Denial is recommended because he was not eligible for retirement under the TERA program.

A complete copy of the evaluation, with attachment, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reiterates that the policies in 1995 were significantly different from those policies enacted in 1999. Based on the revised policies, the action taken against him would have been the last action in an eight-step process now employed. He explains why his appeal is timely. He was treated more harshly than other officers who had committed similar offenses, as validated by the AFDRB and enclosed newspaper clippings.  He requests the same opportunity as these individuals who were afforded the chance to retire with full retirement pay and benefits.

A complete copy of applicant’s response, with attachments, 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 error or injustice to warrant upgrading the applicant’s discharge and allowing him to retire under the provisions of the TERA Program. We were impressed with the applicant’s outstanding career, and we could easily understand his loneliness following his wife’s tragic death and imagine his feelings of isolation when reassigned to South Dakota. However, as an officer and squadron commander with nearly 15 years in the service, he was well aware of the Air Force policy and custom regarding fraternization. While his grief very likely had an adverse affect on his judgment, it did not remove his responsibility to maintain good order and discipline nor render him powerless to control his actions. The fact remains that he was guilty of knowingly fraternizing with an enlisted subordinate in his chain of command. While it cannot be determined with any certainty, had he gone to trial in all likelihood a conviction was probable given the evidence available to the prosecution. Unit morale was affected by the rampant rumors of his affair with SSgt C--. Although the investigation apparently established that SSgt C-- deserved the awards she received, the perception of favoritism clearly added to the disruptive influence throughout the squadron. The applicant was forewarned twice by his first sergeant, and his impropriety prompted a hotline complaint to the wing commander. He entered into this inappropriate relationship before he had accumulated sufficient military service to allow him to request early retirement under the TERA Program, and he remained ineligible when he came under investigation and court-martial charges. We agree with the comments presented by the Director of the AFRBA in his 2 Dec 94 memo to the SAF, in which he contended--unsuccessfully at that time--that the applicant should be separated with a general, rather than UOTHC, discharge. The applicant’s UOTHC discharge was ultimately upgraded to general by the AFDRB on 5 Oct 00. We believe this was appropriate and sufficient relief given both the mitigating and extenuating circumstances of this difficult case. The applicant has not provided convincing evidence that he is entitled to any remedy beyond that already afforded him by the AFDRB. In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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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 this application, AFBCMR No. 02-00431, in Executive Session on 9 July 2002 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFCMR Docket Number 02-00431 was considered:

   Exhibit A.  DD Form 149, dated 22 Jan 00, w/atchs
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 4 Mar 02.
   Exhibit D.  Letter, HQ AFPC/DPPRR, dated 8 Mar 02, w/atch.
   Exhibit E.  Letter, SAF/MRBR, dated 15 Mar 02.
   Exhibit F.  Letter, Applicant, dated 5 Apr 02, w/atchs.