RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03089
		
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retirement grade be changed from major to lieutenant colonel.

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APPLICANT CONTENDS THAT:

He served in grade of lieutenant colonel satisfactorily for longer than minimum time in grade (TIG) requirements for retirement in that grade. Determination by Air Force Personnel Council to retire him in the grade of 0-4 was based solely on the Article 15, which occurred after sufficient TIG.  This decision has the practical effect of extending Article 15 punishment for a lifetime, exceeding statutory limitations.  He petitions for correction of retirement grade on the grounds of both (Time in Grade Determination) and injustice (Exceeding Art 15).

In support of his request, applicant has provided a brief, copies of his officer performance reports, officer pre-selection brief, personal data sheet, and a copy of his referral officer report.

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

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STATEMENT OF FACTS:

Applicant is a prior active duty lieutenant colonel, who retired as a major as a result of an officer grade determination (OGD) conducted in accordance with Title 10, U.S.C., Section 1370. Prior to the officer grade determination, his date of rank to lieutenant colonel was 1 June 1998.  The applicant served 20 years, 2 months, and 14 days of total active duty service.

On 26 February 2001, the applicant, then a lieutenant colonel, was offered nonjudicial punishment for violation of a lawful order and conduct unbecoming of an officer and gentleman, in violation of Article 92 and 133, of the Uniform Code of Military Justice (UCMJ).  The specification involved having an inappropriate relationship with a student, which violated AETC Instruction 36-2909, and developing an unprofessional relationship of inappropriate familiarity with the second lieutenant student.  On 1 March 2001, after consulting with military defense counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He submitted a written presentation to his commander.  Having considered the evidence and the applicant’s response to the Article 15, his commander determined the applicant committed the offenses alleged and imposed punishment of forfeiture of $2,818.00 pay per month for two months and a reprimand.  The applicant waived his right to appeal the punishment.  

On 29 June 2001, the Secretary of the Air Force Personnel Council determined the applicant did not serve satisfactorily in the grade of lieutenant colonel, but did serve satisfactorily in the grade of major and would be retired as a major.  The applicant retired from the Air Force on 1 August 2001.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommend no relief be granted and stated that the applicant’s position is flawed and without merit.  In this case, contrary to the applicant’s assertion, the retirement at the grade of major was a result of the applicant’s inappropriate relationship with a female second lieutenant student, not a direct consequence of nonjudicial punishment.  The Secretary of the Air Force determined the applicant did not serve honorably in the grade of lieutenant colonel because of the applicant’s unprofessional relationship.  Had the applicant’s actions been addressed in a forum other than nonjudicial punishment, the Secretary of the Air Force still could have found the applicant did not serve honorably and directed retirement in the grade of major.

The applicant admitted he engaged in sexual intercourse with a female lieutenant undergraduate pilot and that his actions violated orders prohibiting relationships between AETC students and instructor personnel.  The applicant does not question the punishment imposed by his commander; he does, however, assert that the consequences of the nonjudicial punishment was excessive.

A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action. 

AFLSA/JAJM complete evaluation is at Exhibit C.

AFPC/DPPRR recommended denial and stated the member’s case was properly processed in accordance with established guidelines.  SAFPC reviewed the case, to include the documentation submitted by the applicant, and determined that he didn’t serve satisfactorily in the grade of lieutenant colonel.  Member has not shown that an error or injustice has occurred.

AFPC/DPPRR complete evaluation with attachment is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant on 21 February 2003, for review and comment.  As of this date, no response has been received by this office.

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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 an error or injustice.  After a thorough review of the evidence of record and the applicant’s submission, the majority of the Board is not persuaded that his grade of lieutenant colonel should be restored.  Applicant has provided no persuasive documentation that the officer grade determination process was in error, nor has he demonstrated that the Air Force Personnel Council’s decision to retire him in the lower grade was unjust and not soundly based on the evidence of record.  The Board majority believes it is not unreasonable to conclude that the serious nature of the offense tainted the applicant's entire period of service as a lieutenant colonel and the fact that this determination has an impact that appears to exceed the penalties specified under UCMJ Article 15 is incidental and does not constitute either error or injustice.  The majority of the Board believes that the applicant’s behavior was inconsistent with the highest standards expected of an officer in the United States Air Force.  Therefore, in the absence of evidence to the contrary, the majority of the Board finds no compelling basis to recommend granting the relief sought in this application.

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THE BOARD RECOMMENDS THAT:

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

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The following members of the Board considered Docket Number BC-2002-03089 in Executive Session on 17 June 2003, under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

By a majority vote, the Board recommended denial of the application.  XXXXX voted to grant the applicant's request and elected to submit a minority report which is attached at Exhibit G. 

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLS/JAJM, dated 26 Dec 02.
    Exhibit D.  Letter, AFPC/DPPRR, dated 28 Jan 03.
    Exhibit E.  OSI Report, dated 12 Dec 00, WITHDRAWN.
    Exhibit F.  Letter, SAF/MRBR, dated 21 Feb 03.
    Exhibit G.  Minority Report, dated 8 Jul 03.

                                   

MEMORANDUM FOR THE DIRECTOR, AIR FORCE REVIEW BOARDS AGENCY
SUBJECT:  Minority Report in the AFBCMR Application of -----  
The Board for Correction of Military Records met on June 17, 2003.   I voted in the minority to grant the applicant’s request to change his retirement grade from Major (O-4) to Lieutenant Colonel (O-5).   After hearing the discussion, I still believe this request should be granted for the following reasons.   The incident, which resulted in the determination to retire the applicant at a lower grade, was a single occurrence in an outstanding Air Force career.  The applicant had held the higher grade for over two years prior to the date of the incident.  The applicant had already requested retirement, he was not trying to “escape” the consequences of his actions.  While the incident was inexcusable, it was not based on force or coercion -- implied or overt -- was not public, did not impact unit morale and was not with a junior member of the Air Force over which he had any daily contact or control.  The Article 15 punishment of forfeiture of $2,818 pay per month for two months and a reprimand was the maximum permitted in that venue.
I believe the retirement grade reduction was excessive punishment and was an overreaction in an atmosphere of sexual paranoia.  It was pointed out in the case information that this was the second of three incidents the junior officer was involved in, none of which resulted in any adverse action against her despite her fraudulent assertion of sexual assault.  If the Air Force is going to punish immoral behavior, bearing false witness should certainly be grounds for discipline.   If the applicant had not already applied for retirement he could have, theoretically, stayed on active duty and continued to perform in the outstanding manner his record indicates he was capable of doing.  He was denied this opportunity because he had already submitted his retirement request.  Now he, and his family, continues to be punished in the form of reduced retirement benefits.
We hear that this is not a “one mistake Air Force”.  I can see no reason, or benefit, in continuing to punish this individual for what was admittedly a serious, yet single, occurrence.  On the basis of injustice I recommend granting the applicant’s request to have his retirement grade changed to Lieutenant Colonel (O-5).