RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03845;
					    98-03257
		INDEX NUMBER:  111.00; 113.00
	XXXXXXXXXXXXXX	COUNSEL:  

	XXXXXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for the period 16 Jul 96 to 15 Oct 97, be removed from his records.

All information relating to discharge actions initiated against him be removed from his records.

His Mandatory Separation Date (MSD) be adjusted for the period he served in the Retired Reserve from the date of his discharge,   15 Mar 98 through 17 May 02, his original MSD, in order to permit him to complete the time he lost from the Reserves.

Based on rebuttal submitted by counsel, applicant is also requesting reconsideration of the AFBCMR’s 30 May 00 decision to deny his request to set aside the punishment imposed on him under Article 15 on 7 Nov 97.

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APPLICANT CONTENDS THAT:

Applicant’s counsel in a 15-page brief outlines the applicant’s case.  He provides the background of the incident that led to the applicant’s problems.  He discusses the Article 15 received by the applicant and his commander’s determination that the applicant did not commit the offenses as alleged and the commander’s decision that the applicant only committed a less serious offense involving no sexual misconduct.  He asserts that the applicant accepted the revised Article 15, in part, because he was advised that no further action would be taken against him. Counsel opines that six serious errors marred the action against the applicant and denied him due process under the governing regulation.

	  a.  The Letter of Reprimand received by the applicant punished him for unprofessional relationships (plural) with other female enlisted members (plural) in the unit.

	  b.  Civilian and military counsel were denied access to all evidence against the applicant.

	  c.  The applicant accepted the Article 15 because he was informed that the whole thing was finished, meaning that no further action would be taken.

	  d.  The commander recommended the applicant’s separation under a provision of AFI 36-3209 that had changed by the time the applicant was discharged.

	  e.  The basis for the commander’s recommendation for separation was improper because the commander had previously found the applicant not guilty of the allegations “attempted sex acts” during the Article 15 proceedings.

Since the applicant was erroneously retired, he has been denied approximately four years and two months of Ready Reserve service.

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

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STATEMENT OF FACTS:

On 17 May 74, the applicant was commissioned in the Air Force Reserve as a second lieutenant.  He was progressively promoted to the grade of lieutenant colonel on 7 Mar 92.

On 6 Aug 97, the applicant was notified by his commander of his intent to punish him under Article 15 for wrongfully attempting to engage in sexual intercourse with an enlisted female and repeatedly soliciting her to come to his dorm room, wrongfully attempting to engage in sexual intercourse with an enlisted female in the presence of other officers, which constituted conduct unbecoming an officer and gentleman, and wrongfully placing the foot of an enlisted female in his mouth in the presence of other officers and enlisted members, which also constituted conduct unbecoming an officer and gentleman.  After consulting counsel, the applicant accepted Article 15 proceedings and elected to submit a written presentation.  On 11 Sep 97, his commander determined that he had only committed the alleged offense of soliciting an enlisted female to come to his room.  The commander imposed punishment consisting of forfeiture of   $2,564.40 per month for two months and a reprimand.  The applicant did not appeal the punishment and the Article 15 was filed in his unfavorable information file (UIF).

On 9 Jan 98, HQ ARPC initiated administrative discharge action against the applicant for the above offense.  On 15 Jan 98, the applicant submitted an application for transfer to the Retired Reserve in lieu of administrative discharge, requesting an effective retirement date of 15 Mar 98.  On 11 May 98, ARPC/CC recommended that the applicant’s request be approved.  On 9 Jun 98, HQ USAF/JAG determined that the applicant’s request was legally sufficient.  On 22 Jul 98, the Secretary of the Air Force Personnel Council (SAFPC) considered the case and concluded that the applicant should be allowed to transfer to the Retired Reserve in lieu of administrative discharge.  SAFPC also conducted an officer grade determination (OGD) to determine the grade in which the applicant should be allowed to retire.  They recommended that the applicant retire in the grade of major.  However, the Director of the Air Force Review Boards Agency determined that the applicant served satisfactorily in the grade of lieutenant colonel and should retire in that grade.

With the exception of the OPR rendered for the period 16 Jul 96 through 15 Oct 97, the applicant’s OPRs were all rated as meets standards.  The OPR closing 15 Oct 97 was marked as “Does Not Meet Standards” in the performance factor “Judgment and Decisions.”  The OPR was referred to the applicant on 6 Dec 97.

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AIR FORCE EVALUATION:

AFRC/DPM recommends that the OPR rendered on the applicant for the period 16 Jul 96 through 15 Oct 97 be removed from his records due to the following errors:

	  a.  Failure to state the underlying conduct or behavior, which resulted in the applicant’s Article 15, in violation of AFI 36-2406, paragraph 3.9.1.2.2.

	  b.  Failure to state the specific reason for the referral OPR, in violation of AFI 36-2406, Figure 3.1.

	  c.  The additional rater’s decision not to consider the applicant’s comments received one day after the required suspense, given that the OPR was not signed until several weeks later.

They recommend denial of the applicant’s request to have all information relating to his discharge removed from his records or to adjust his MSD.  They provide an opinion from ARPC/JA, which states that discharge proceedings against the applicant were initiated in accordance with the appropriate provisions of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, dated 1 Oct 95.  The applicant requested transfer to the Retired Reserve in lieu of administrative discharge and was allowed to retire as a lieutenant colonel.  The fact that the separations AFI was later revised and certain paragraphs renumbered does not affect the legal sufficiency of the discharge action against him, or his transfer to the Retired Reserve.

The complete evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded to the Air Force evaluation.  Counsel indicates that they take no issue with the recommendation to remove the OPR closing 15 Oct 97.  However, regarding the discharge action initiated against the applicant, counsel opines that the evaluation writer fails to grasp the fundamental errors relating to the discharge.  Counsel discusses wording in AFI 36-2909, which applicant was accused of violating and how the action by the commander striking out sexual language originally contained in the Article 15 made it impossible for the applicant to have violated AFI 36-2909, paragraph 5.1.3.  Counsel further asserts that because the instruction cited in the reprimand imposed on the applicant under Article 15 was not in effect at the time of the applicant’s alleged misconduct and there was no paragraph 5 as referred to, the reprimand was in error and constituted an erroneous basis for the discharge action subsequently initiated against the applicant.  Counsel also asserts that the reprimand imposed on the applicant under Article 15 admonishes the applicant for misconduct that the commander had already struck from the specification and entered a finding of “not guilty.”

Counsel opines that the legal errors that pervade the Article 15 and subsequent discharge process are material and prejudicial requiring that the applicant receive the requested relief.

Counsel’s complete response is at Exhibit E.

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ADDITIONAL AIR FORCE INFORMATION:

Based on counsel’s rebuttal, it was determined that a copy of the memorandum prepared by the SAFPC when it considered the applicant’s case would be reviewed by the Board and should be furnished to applicant’s counsel.  It was also determined that an additional advisory should be requested.

The SAFPC Memorandum lays out their findings and rationale for their conclusion to allow the applicant to transfer to the Retired Reserves in lieu of administrative discharge and their recommendation that the applicant be retired in the grade of major vice his current grade at the time of lieutenant colonel.

The SAFPC memorandum is at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFRC/JAJ provided an additional evaluation of the applicant’s appeal based on counsel’s rebuttal.  
In the additional evaluation, AFRC/JAJ notes that although AFI 36-3209 was revised and the paragraph cited in the notification of discharge renumbered, the language of the paragraph in the revised version is unchanged from the earlier one.  The fact that the paragraph was renumbered does not affect the legal sufficiency of either the discharge action or the applicant’s subsequent transfer to the Retired Reserve.  The applicant also complains that the discharge action against him was based upon misconduct that had been alleged in the Article 15 action, but later withdrawn.  However, the commander imposing the Article 15 did find that the applicant had violated the fraternization proscription of AFI 36-2909.  The fact that certain words or phrases contained in the original Article 15 specifications were deleted by the commander, and the conduct unbecoming specification completely withdrawn, clearly shows the commander considered matters submitted by the applicant in determining an appropriate punishment.  AFRC/JAJ also points out that Article 15 action is an administrative, not a criminal proceeding.  Therefore counsel’s assertion that withdrawal of the specifications is tantamount to a finding of “Not Guilty” is both inaccurate and misleading.  They also note that the applicant did not appeal the action.  Therefore the discharge action was founded on sufficient evidence.  The applicant had a right to respond to the proposed discharge action and could have included comment on the withdrawal of specifications from the Article 15.  However he chose not to do so.

Counsel argues in his rebuttal that the Article 15 action must be set aside in its entirety because the action “refers to a violation of a non-existent regulation.”  Counsel also argues that, “because the discharge action was premised upon the alleged violation of a regulation that does not exist, the discharge action must be set aside.”  AFRC/JAJ considers this argument deceptive.  While the reprimand did cite an incorrect date (1 Oct 95) of the AFI, the Article 15 specification, upon which the reprimand was based, did reflect the correct version of the AFI (1 May 96) that the applicant was found to have violated.  The incorrect date was simply an administrative error that in no way affected the legal sufficiency of the Article 15 action.  Since the discharge action was premised upon a valid Article 15 action, the basis for discharge likewise was legally sufficient.

The complete additional evaluation is at Exhibit H.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION AND INFORMATION:

Counsel provided a five-page response to the Additional Air Force evaluation.  No reference was made to the SAFPC memorandum.  Counsel states that in paragraph 2a of their evaluation, AFRC/JAJ provides a misleading recitation of some facts and is incorrect in others.  Counsel indicates the applicant was charged with violation of a very specific paragraph of Air Force Instruction 32-2909, paragraph 5.1.3.  This paragraph states that officers will not engage in sexual relations with or date enlisted members.  The reference to sexual relations was struck from the specifications by the imposing commander and only left the statement “by repeatedly soliciting Technical Sergeant   to come to your dorm room.”  Counsel opines that paragraph 5.1.3 provides no prohibition of solicitation of an enlisted person to come to a dorm room.  Conversely, unsuccessfully soliciting someone to come to a dorm room does not cause a violation of the regulation because there was no date.  Counsel references cases, which he states illustrate that under military law, violations of punitive regulations like penal statutes are to be strictly construed.  Counsel opines that the evidence in this case does not support a violation of the charged provision of the regulation and the Article 15 must be set aside.  Counsel also indicates that the evaluation is incorrect in stating that the applicant did not appeal the punishment and discusses actions taken by the applicant to appeal the punishment.

Next counsel discusses the separation proceedings initiated against the applicant.  He states that nowhere in the notification action was any particular edition of the instruction cited.  He then points out that the instruction was revised prior to the applicant’s actual discharge and would have governed the discharge, reasons, and procedures.  Therefore, counsel opines, the applicant’s discharge pursuant to the authority of the cited instruction was improper.  Counsel further discusses how the cited paragraph in the revised instruction refers to a highly prejudicial basis for discharge, homosexual acts.  Counsels discusses how this leads to a factually inaccurate and illegal conclusion, which is prejudicial to the rights of the applicant.

Counsel discusses why the AFRC/JAJ advisory is incorrect in their view that the revision of AFI 36-2909, subsequent to the initiation of administrative discharge proceedings against the applicant, does not affect the legal sufficiency of the discharge.  He concludes the new instruction became effective while the applicant was still on active duty and responding to notifications.  Therefore, a fair reading of the applicable discharge/retirement orders reflect an erroneous factual basis for involuntary separation from the Air Force and one considered abhorrent to the majority of a moral United States society.

Counsel opines that the statement by AFRC/JAJ that the commander imposing the Article 15 did find the applicant had violated the fraternization proscription of AFI-2909 is intentionally false.  The applicant was alleged to have violated a very specific provision of the Air Force instruction concerning unprofessional relationships, not a fraternization prohibition.  Fraternization was neither alleged nor mentioned in any of the relevant documents.  Counsel opines that after the commander excised all the words relating to sexual conduct, only the nonsensical allegation that the applicant violated a “dating” proscription, by allegedly repeatedly soliciting the enlisted member to come to his dorm room, remained.  Counsel opines that a rejected invitation is not fraternization or dating.  Since fraternization has nothing to do with the applicant’s case and was not supported by any finding on the part of the commander, the Article 15 and discharge processing on which it is based must be set aside.

Counsel discusses how the date of the regulation referenced in the reprimand is incorrect and is different from the incorrect regulation referenced in the Article 15.  Counsel points out that the regulation referenced in the reprimand does not even have a paragraph 5.1.3.

Counsel’s complete response is at Exhibit J.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s request to void the OPR rendered on him closing     15 Oct 97.  We accept ARPC/DPM’s determination the OPR violates AFI 36-2402, dated 1 Jul 96, the instruction in effect at the time the OPR was rendered.  However, we note the OPR became a matter of record on 2 Feb 98 and the applicant was transferred to the retired reserve on 15 Mar 98 after approval of his voluntary request.  Consequently, the OPR was never considered in the promotion process and requires no further action beyond its removal from the applicant’s records.  Therefore, we recommend his records only be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s requests pertaining to the removal of all information from his records related to the discharge action initiated against him and adjustment of his mandatory separation date.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion that, with the exception of the OPR closing 15 Oct 97, the applicant has not been the victim of an error or injustice.  Additionally, we believe the rationale put forth in the SAFPC Memorandum, dated 22 Jul 98, which addressed the applicant’s request to transfer to the retired reserve in the grade of lieutenant colonel, provides further justification to deny the relief sought in this application.  Although SAFPC agreed with the applicant’s chain of command on his request to transfer to the retired reserve, they determined he should be retired in the lower grade of major.  The XXXXXXX, Air Force Review Boards Agency subsequently determined the applicant should be retired in the grade of lieutenant colonel.  Although counsel now argues the merits of the administrative discharge action initiated against the applicant, we note the applicant voluntarily requested retirement and elected not to contest the discharge action.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting this portion of the relief sought in this application.

5.  We further note applicant’s counsel stated this appeal “is not a request for reconsideration of the Board’s decision of    30 June 2000” to deny the applicant’s request to have the punishment imposed upon him under Article 15 set aside.  However, we find much of counsel’s arguments related to this very issue.  As such, we do not find that the evidence submitted with this application meets the criteria for reconsideration of the Board’s earlier decision.  We also believe the Board’s position on this issue is adequately supported by the rationale previously provided.

6.  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 the Field Grade Officer Performance Report, AF Form 707A, rendered for the period 16 Jul 96 through 15 Oct 97, be declared void and removed from his records.

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The following members of the Board considered Docket Number BC-2003-03845 in Executive Session on 12 May 2004 and 20 October 2004, 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 10 Nov 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, HQ ARPC/DPM, dated 9 Feb 04,
                 w/atch.
     Exhibit D.  Letter, SAF/MRBR, dated 20 Feb 04.
     Exhibit E.  Letter, Counsel, dated 17 May 04.
     Exhibit F.  Memorandum, SAFPC, dated 22 Jul 98, w/atch.
     Exhibit G.  Letter, AFBCMR, dated 2 Jun 04.
     Exhibit H.  Memorandum, AFRC/JAJ, dated 16 Aug 04.
     Exhibit I.  Letter, AFBCMR, dated 17 Aug 04.
     Exhibit J.  Memorandum, Counsel, dated 9 Sep 04.

                                   

AFBCMR BC-2003-03845

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 XXXXXXXX, XXXXXXX, be corrected to show that the Field Grade Officer Performance Report, AF Form 707A, rendered for the period 16 Jul 96 through 15 Oct 97 be, and hereby is, declared void and removed from his records.

		
		
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

				DATE: 12 May 04                 

					  _______________

MEMBERS PRESENT:

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____________________________________	CODE:      

				CASE NO.: 1   
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TYPE OF MEETING: FORMAL            EXEC SESSION  X 
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EXAMINER:  

APPLICANT:  XXXXXXXXXXXX           	SSAN:  XXXXXXX           
           _________________________            ______________

DOCKET NUMBER:  BC-2003-03845              

DECISION OF THE BOARD: _______________________________________________

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Partial Grant.  Remove OPR, deny all other requests.
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RATIONALE:  __________________________________________________________

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