RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-00849
	           INDEX CODE 110.03  134.02  131.01
	 	COUNSEL:  None

	 	HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be reinstated to active duty in the grade of 1st lieutenant (1Lt), effective and with a date of rank (DOR) of 14 Jan 02, with back pay and leave, and a permanent change of station (PCS) with his spouse.

2.  The Letter of Reprimand (LOR) dated 30 Aug 01 and the Unfavorable Information File (UIF) be declared void.

3.  The results from the Commander-Directed Investigation (CDI), the not-qualified-for-promotion (NQP) action, and all other derogatory information be expunged from his records.

4.  He be considered for promotion to captain, either directly or by Special Selection Board (SSB) with a DOR of 14 Jan 04.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He knows what he did was in violation of Air Force Instructions (AFIs), but there seems to be two different Uniform Codes of Military Justice (UCMJ), depending on your pay grade. He was wrongfully charged and the punishment did not fit the “crime.” Management played an active role in supporting/condoning his relationship with an enlisted member. When the issue became an item of accountability, they “washed their hands” of the situation and denied any involvement. The leadership discriminated against him in the way his case was handled, compared to other squadron incidents. The investigating officer (IO) of the CDI may have been biased against him and intimidated witnesses. The CDI is flawed and warrants dismissal. Without it, there is no reason for the LOR. With no LOR, the Air Force has no grounds to discharge him. He believes when his “show cause” package was submitted to higher headquarters, it was not properly reviewed because they may have only reviewed the advisory statements submitted by the level below them. The 
characterization of his discharge does not reflect his service record. He is “condemned” to spend the rest of his life with the word “misconduct” on his DD Form 214 for a crime that is unique to the military.

The applicant’s complete submission, including a cassette, numerous supporting statements (current and from 2001), and other attachments, is at Exhibit A. 

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force in Jan 92 and was assigned first to Grand Forks AFB, ND, and then to Holloman AFB, NM. His Enlisted Performance Reports (EPRs) reflect the highest overall rating of “5.” 

He applied for Officer Training School (OTS) in 1999 and graduated in Jan 00. He entered active duty as a 2nd lieutenant (2Lt) on 14 Jan 00. He was assigned to the 319th Comptroller Squadron (319 CS) at Grand Forks AFB, ND, as the deputy chief for financial analysis. 

His Officer Performance Report (OPR) for the period 14 Jan 00 through 13 Jan 01 reflects he met all standards. The rater (Maj M) of the OPR was the 319 CS commander and the additional rater (Col G) was the 319th Air Refueling Wing (319 ARW) commander. 

The applicant was projected for promotion to 1Lt with a DOR of 14 Jan 02.

On 9 Apr 01, Maj M gave a Letter of Admonishment (LOA) to the applicant, having been informed that he had been dating a female senior airman (SRA) in the same squadron and that this was common knowledge in the unit. The applicant was advised this was in direct violation of AFI 36-2909, Professional and Unprofessional Relationships. The letter added that repetition of his behavior would not be tolerated and could result in more severe actions and jeopardize his career. She further gave both the applicant and the female SRA written “no contact” orders, to include physical, telephone, mail/message and surrogative contact. However, testimony in a subsequent investigation indicated Maj M verbally lifted the no-contact orders around 12-16 Apr 01, but told both members that they were to conduct themselves according to regulation and have no more personal contact.

The applicant deployed to Turkey on 21 May 01 in support of Operation Northern Watch. 

According to a 13 Jun 01 email, the commandant of cadets, Air Force Reserve Officer Training Corps (ROTC) at the University of ND, discovered that the female SRA, who apparently was planning to separate and was putting together an ROTC package, was engaged to the applicant.

A new rater (Maj S) assumed the 319 CS command on 29 Jun 01.

The applicant returned to Grand Forks AFB on 13 Jul 01 in preparation for his scheduled permanent change of station (PCS) in Sep 01. However, he was immediately taken to the base legal office, briefed, and provided copies of AFI 36-2909 and UCMJ Article 134 (Fraternization).

On 17 Jul 01, the applicant and the female SRA were married.

On 24 Jul 01, Maj S appointed an IO to investigate the existence of an alleged unprofessional relationship between the applicant and his wife and whether it had impacted the good order and discipline of the squadron. A Report of Investigation (ROI) was completed on 3 Aug 01. The IO concluded that the applicant and his spouse were willing participants in an unprofessional relationship which began in Jan 01, possibly as early as Nov 00, and continued through periods of discipline and in spite of the effort to separate them with the applicant’s deployment. The IO further concluded that the relationship was widely known by early Apr 01 and had a detrimental impact on the squadron by lowering morale, unit cohesion and respect for authority.

On 30 Aug 01, the wing commander issued an LOR, reprimanding the applicant for knowingly cultivating an unprofessional and disruptive relationship despite receiving an LOA on 9 Apr 01 and additional counseling on 13 Jul 01. The wing commander also indicated he had lost confidence in the applicant’s judgment and questioned his continued service in the Air Force.

Some time around 6 Sep 01, the commander apparently recommended the applicant be found NQP to the grade of 1Lt, according to the applicant’s statement. However, these documents are no longer in the available military records. [Note:  When the applicant was discharged, the NQP action would have ceased and these documents could have been removed.]

According to emails included in the applicant’s submission, the squadron commander (Maj S) contacted the former squadron commander (Maj M) on 10 Sep 01 for clarification as to whether Maj M had unofficially approved the relationship by allowing the applicant and the enlisted female to have phone contact during his deployment. In an email dated 11 Sep 01, Maj M responded that she at no time formally or informally approved the relationship. She added that the no-contact order was lifted, but she did not specifically remember addressing phone conversations. However, she stressed to the applicant and the enlisted member they were to have no personal contact and limit contact in the squadron. 
Maj M added she encouraged the enlisted member with the ROTC package because “then she would be out of the military and what she did then [was] her business.”

On 11 Sep 01, the squadron commander (Maj S) recommended to the wing commander that the applicant be involuntarily discharged for serious and recurring misconduct punishable by military authorities, specifically, his knowing and willing engagement in an ongoing unprofessional relationship with a female enlisted member of his squadron by dating and maintaining a personal relationship with her on terms of military equality. The squadron commander asserted the applicant’s actions had negatively impacted morale and good order and discipline within the squadron. The commander cited the applicant’s disregard for Air Force standards and orders and disrespect for authority.

On 14 Sep 01, the 15th Air Force (15 AF) commander advised the applicant he was initiating a show cause action for retention on active duty because of the serious and recurring misconduct cited in the LOA and LOR. The applicant acknowledged his understanding of his rights, options and any necessary recoupment action. The applicant and his area defense counsel (ADC) provided statements on 1 Oct 01.

On 4 Oct 01, the 15 AF Staff Judge Advocate (JA) advised the 15 AF commander that, as the show cause authority, he could either refer the case to a Board of Inquiry (BOI) or the Air Force Personnel Board (SAFPC). The JA recommended the case be referred to SAFPC with a recommendation for a general characterization of service. The JA believed a general discharge would fairly and accurately describe the applicant’s service, i.e., service had been generally honest and faithful but was marred by significant negative aspects of duty performance or personal conduct that outweighed the positive aspects of the applicant’s record.

On 9 Oct 01, the 15 AF commander forwarded the applicant’s case to HQ AFPC/DPPRS (Separations Branch), for referral to SAFPC with a recommendation for a general discharge for misconduct. The 15 AF commander cited the applicant’s knowing and willing engagement in an unprofessional relationship with an enlisted member of his squadron. HQ AFPC/DPPRS forwarded the case to SAFPC through HQ USAF/JAG on 18 Oct 01.

HQ USAF/JAG provided a 17 Dec 01 advisory to SAFPC, confirming 15 AF/JA’s notation that, should the applicant be allowed to separate with an honorable discharge as a result of an NQP action, he could be permitted to reenlist in the Air Force as a former enlisted member of the Regular Air Force. However, a member was not entitled to reenlistment if separated for misconduct. HQ USAF/JAG found that the possibility of reenlistment inconsistent with the best interests of the Air Force, that the case was legally sufficient, and that a general discharge was supportable.

On 16 Jan 02, SAFPC recommended the Designee for the Secretary of the Air Force (SAF/MRB) discharge the applicant with a general characterization. SAFPC indicated that the Air Force Personnel Board, sitting as the Air Force Probationary Officer Board, noted the repeated nature of the fraternization but placed particular emphasis on the disobedience of the no-contact order, and concluded the applicant’s good service as an enlisted man and an officer prior to his fraternization was outweighed by his willful misconduct.

On 17 Jan 02, the Secretarial Designee ordered the applicant discharged with a general characterization of service.

On 31 Jan 02, after 10 years and 3 days of active service, the applicant was discharged for misconduct with a general characterization in the grade of 2Lt. 

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSFM advises the applicant does not deny having an unprofessional relationship but contends his chain of command supported the relationship and did not consider his extenuating circumstances. DPSFM believes the commander correctly administered the use of the LOA and the LOR and, although not included, the establishment of a UIF was mandatory. Placement of an LOR and/or LOR in the officer records is within a commander’s authority. Denial is recommended. 

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPRS concludes that, based on the documentation in the file, the discharge was consistent with the procedural and substantive requirements of the discharge regulation and within the discretion of the discharge authority. Denial is recommended. 

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/DPPPO advises that had the applicant remained on active duty and been recommended for promotion by his commander, he would have been promoted to the grade of 1Lt on 14 Jan 02. In addition, he would have been eligible to meet the Calendar Year 2003C (CY03C) Quarterly Captain Promotion Process, scheduled to convene on 30 Sep 03. If he was recommended for promotion, he would have a projected DOR of 14 Jan 04.

A complete copy of the evaluation is at Exhibit E.

The HQ AFPC/JA addresses the applicant’s various contentions and summarizes that the decision as to the seriousness of the applicant’s misbehavior and the actions that were appropriate in response was one of discretion on the part of the commander. They 
note the applicant did not raise these issues during the discharge process. The evidence in this case reveals that the applicant participated in a course of conduct serious enough to fully warrant the actions taken. There is no evidence that the commander abused her discretion. In addition, the final decision to discharge the applicant was subsequently concurred in by higher levels of command and the SAF. As the applicant has failed to present relevant evidence of any error or injustice warranting relief, denial is recommended.

A complete copy of the evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states his ADC directed his response to the show cause notice and told him to be accountable for his actions. He was unable to make a statement on his behalf because his ADC was hardly ever available. He was also ordered by his commander, under threat of further disciplinary action, not to talk to anyone in the squadron about his ordeal. He was not given every opportunity to research and present any rebuttal. The IO was biased against him and overbearing and intimidating towards witnesses, who felt coerced and uncomfortable. The greatest upheaval in the squadron was provoked by the First Sergeant who spread rumors and told everyone about the relationship. He asks why his commander did not initiate proper action earlier when she claimed she knew he had violated the order she supposedly gave him. He also questions why would management support a package to make his fiancée an officer if they were breaking AFIs. The preponderance of the evidence shows he and his fiancée were given permission to converse on the phone. The relationship did stop after the 9 Apr 01 LOA because they had no personal contact, other than the phone calls they were told they could make, until they married on 17 Jul 01. He cites the two Article 15s he submitted on other individuals who were not discharged for unprofessional relationships. He received an LOR. If his actions were as serious as alleged, why did he not receive an Article 15 or courts-martial? The LOR was the sole counseling tool used in his case. By comparison, individuals in the weight management program (WMP) can violate this Air Force standard three times before separation is even considered. A general discharge does not coincide with an LOR.

A complete copy of applicant’s response, with attachments, is at Exhibit H.

_________________________________________________________________

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. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded the requested relief should be granted. The applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force and the evidence of record. The legal reviews of this case indicate that, while the applicant’s service had been generally honest and faithful, it was marred by his willful, and acknowledged, fraternization misconduct. The applicant has not shown that he was the victim of bias, that the commander abused her discretion, or that the determinations of higher command levels and the Secretarial Designee were unfounded. We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has not sustained his burden of having suffered either an error or an injustice. 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.
_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 12 November 2003 under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence relating to AFBCMR Docket Number BC-2003-00849 was considered:

   Exhibit A.  DD Form 149, dated 6 Mar 03, w/atchs (including
				cassette).
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPSFM, dated 2 Jun 03.
   Exhibit D.  Letter, HQ AFPC/DPPRS, undated.
   Exhibit E.  Letter, HQ AFPC/DPPPO, dated 18 Aug 03.
   Exhibit F.  Letter, HQ AFPC/JA, dated 29 Aug 03.
   Exhibit G.  Letter, SAF/MRBR, dated 5 Sep 03.
   Exhibit H.  Letter, Applicant, dated 11 Sep 03, w/atchs.

                                   
                                   Panel Chair