RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01094
		INDEX NUMBER:  131.00; 129.04
	XXXXXXXXXX	COUNSEL:  

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The Officer Grade Determination (OGD) that required him to retire in the grade of captain be overturned, his retirement grade be corrected to reflect the grade of major, and he be paid all back pay and allowances.

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APPLICANT CONTENDS THAT:

In an eight-page brief of counsel, with 17 attachments, applicant’s counsel indicates that the Article 15 the applicant received that led to his retirement and the OGD action was not justified.  Counsel discusses the background of the Article 15 action and why it was not warranted.  Counsel next asserts that the OGD process was misused in the applicant’s case.  He provides statistical data to support his view that prior to 1995 the OGD process was used sparingly, usually in courts-martial cases, and normally did not result in a reduced retirement grade.  Counsel further asserts that while the number of OGDs resulting from courts-martials remained relatively stable, single Article 15s were increasingly being used to justify penalties that it would take multiple courts-martials to impose (it would take several courts-martial to impose $200,000 in forfeitures, while a single OGD can easily do it).  

The law on grade determination actions, 10 USC 1370, requires only two years of satisfactory service in grade.  The applicant had more than the required number of years of outstanding service in the grade of major, had several outstanding OPRs as a major, and had earned a Meritorious Service Medal (MSM) in that grade.  Counsel also addresses the reason the applicant’s appeal is beyond the three-year statute of limitation.  

Counsel indicates that the Board may be familiar with other OGD cases that were more egregious than the applicant’s, yet the respondents were allowed to keep their grade.  Counsel cites examples referred to in a Personnel Council Memo issued around the time of the applicant’s case.  He highlights a case involving an officer at the same base as the applicant that was of a more serious and embarrassing matter for the Air Force.  He claims that the officer was allowed to retire in grade.
As a final matter, counsel states that while the applicant was being advised by the local area defense counsel (ADC) concerning whether he should accept Article 15 proceedings, the ADC did not advise the applicant about the possibility of an OGD action.  Since the OGD penalty is hundreds of times greater than the Article 15 penalty, this amounts to a denial of counsel and a lack of due process.  

Counsel’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

According to information taken from applicant’s personnel records, he is a graduate of the Air Force Academy and was commissioned in May 1981 and entered active duty on 27 May 81.  Applicant’s duty performance was considered excellent until July 1995 when he was given an Article 15 for reprisal.  His last OPR closing in Nov 95 was a referral due to the Article 15 action.  All other OPRs received by the applicant were rated “meets standards.”  After receiving the Article 15, applicant applied for retirement under the early retirement program in Nov 95.  Due to the Article 15 action and approval for his retirement, an OGD was required.  AFMC/CV recommended that the applicant be retired in the grade of major.  On 31 May 96, the Secretary of the Air Force Personnel Council determined that the applicant should be retired in the grade of captain.  At the time the applicant had two years seven months time in grade as a major.  The applicant was retired in the grade of captain effective 1 Aug 96.

The remaining relevant facts pertaining to this application are contained in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C and D.

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AIR FORCE EVALUATION:

AFLSA/JAJM addressed the issue of whether the applicant’s Article 15 action should be set aside.  They recommend that the applicant not be provided any relief regarding the Article 15, which formed the basis for the OGD.

Although the applicant alleges he never committed an act of reprisal against his subordinate, there was sufficient evidence for the commander to determine the offense had been committed.  The applicant’s arguments failed to convince either the commander who imposed the punishment or the appellate authority.  While different fact finders may have come to a different conclusion, the commander’s findings are neither arbitrary nor capricious and should not be disturbed.

The complete evaluation is at Exhibit C.

AFPC/DPPRR recommends that the applicant’s request that he be retired in the grade of major be denied. They believe no injustices or irregularities occurred in the processing of the applicant’s retirement request.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responds to the Air Force evaluations by indicating that they disagree with their recommendations to deny relief.  Counsel points out that they stated previously why the applicant’s reduction in grade was not consistent with the law in contrast to AFPC/DPPRR’s assertion that it was.  Counsel notes that the copy of the statute provided by DPPRR regarding the rule for retirement in highest grade held satisfactorily only requires six months satisfactory service in that grade.  The applicant served satisfactorily in his highest grade, major, for several years.

In regards to the evaluation prepared by AFLSA/JAJM, counsel addresses the timeliness of the applicant’s appeal and why timeliness should be waived in the applicant’s case.

Counsel states that the evaluation prepared by JAJM is notable for what it does not discuss rather than what it does.  He specifically references a case involving an officer at the same base during the same time as the applicant that he asserts was guilty of more serious misconduct than that alleged against the applicant.  Counsel states that this officer was allowed to retire in his highest grade.  Counsel asks, rhetorically, why would JAJM avoid discussing this case.  The only answer must be the difference in treatment of these two cases is so grossly inequitable that it is beyond the skills of JAJM to explain it away.  On this basis alone, he states that the applicant deserves relief.  Counsel also responds that JAJM failed to address the evidence of other cases they submitted in which the AFBCMR decided against an OGD despite the fact that worse misconduct than that alleged against the applicant was involved.

In regards to the Article 15 the applicant received for alleged reprisal against a staff sergeant by downgrading his EPR, counsel states that the applicant was not the only person that had observed a decline in the sergeant’s performance.  JAJM does not address the fact that the staff sergeant still received an overall “5” on his EPR and, therefore, did not have his promotion chances negatively impacted.

Counsel states that the allegation against the applicant that he became angry and cut off a conversation with another officer involved in this case is not true.  Counsel addresses the issue of why the allegedly aggrieved staff sergeant was not submitted for an award.  He also discusses why the applicant talked about the staff sergeant’s performance with his (applicant’s) successor.

Regarding the allegation that the applicant called in an anonymous Fraud, Waste and Abuse complaint against another officer, counsel questions how the IG was able to verify that the applicant committed this offense.  The IG’s actions constitute a breach of faith… a reprisal in itself.

Counsel states that JAJM points out that in Tab 18 of the applicant’s OGD file the Area Defense Counsel apparently provided a statement admitting that he failed to inform the applicant of the possibility of an OGD.  Counsel requests that they be provided a copy of any such statement.  Assuming that what JAJM says about the statement is correct, this means that while the ADC was advising the applicant about the potential penalties of the Article 15, he failed to advise him of the potential for a much more severe penalty through the OGD process.

Counsel reiterates their request that the OGD action be set aside.  They also request that the Article 15 action be set aside.  They believe they have submitted more than enough evidence to support their requests.  However, counsel emphasizes that relief from the OGD is their main concern.

Finally, they request that the Board take a look at the MAJCOM legal review and its’ strongly held negative opinions about the government’s case against the applicant.

Counsel’s complete 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s request to set aside the Article 15 he received.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  Notwithstanding the above determination, we believe there is sufficient evidence of an error or injustice regarding the applicant’s retirement in the grade of captain.  We note the strong recommendation by the applicant’s Headquarters Squadron Section Commander that he be allowed to retire in the grade of major.  We note the commander’s assessment that other than the incident leading to the Article 15, the applicant had an exceptionally strong record of performance as a major.  We also note the recommendation of the MajCom Vice Commander, a three-star general officer, to allow the applicant to retire in the grade of major.  Finally, we are concerned that the applicant may not have received adequate legal advice regarding the impact of an Officer Grade Determination, as verified by his Area Defense Counsel.  If the applicant had been aware of the potential impact of an OGD, he may have delayed his voluntary request for retirement until two years had passed, negating the requirement for an OGD.  While it cannot be said with certainty what the applicant’s actions would have been, we believe the doubt should be resolved in his favor.  Therefore, in the interest of equity and justice, we recommend that the applicant’s records be corrected as indicated below.

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	  a.  The Secretary of the Air Force found that he served satisfactorily in the higher grade of major within the meaning of Section 1370(a)(1), Title 10, United States Code, and directed that he be retired in that grade.

	  b. On 31 July 1996, he was relieved from active duty and, effective 1 August 1996, he was retired under the Temporary Early Retirement Authority in the grade of major.

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The following members of the Board considered Docket Number 02-01094 in Executive Session on 13 September 2002, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 7 Mar 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 21 Jun 02.
     Exhibit D.  Letter, AFPC/DPPRR, dated 9 Jul 02.
     Exhibit E.  Letter, SAF/MIBR, dated 19 Jul 02.
     Exhibit F.  Letter, Applicant, dated 20 Aug 02.

AFBCMR 02-01094

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXXXX, XXX-XX-XXXX, be corrected to show that:

		  a.  The Secretary of the Air Force found that he served satisfactorily in the higher grade of major within the meaning of Section 1370(a)(1), Title 10, United States Code, and directed that he be retired in that grade.

		  b. On 31 July 1996, he was relieved from active duty and, effective 1 August 1996, he was retired under the Temporary Early Retirement Authority in the grade of major.