ADDENDUM TO
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
	XXXXXXXXXXXXXXXX	COUNSEL:  

	XXXXXXX	HEARING DESIRED:  Yes

MANDATORY CASE COMPLETION DATE:  9 Aug 06

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APPLICANT REQUESTS THAT:

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.

The Article 15 punishment imposed on him under Article 15 on     7 Nov 97 be set aside.

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RESUME OF CASE:

On 20 Oct 04, the Board considered and denied the requests stated above.  The Board also considered and granted the applicant’s request to void the OPR rendered on him for the period 16 Jul 96 to 15 Oct 97.  After receiving the Board’s decision, applicant’s counsel noted that a key document considered by the Board was a SAFPC memorandum, dated 22 Jul 98.  AFBCMR records indicate the document was mailed to counsel on 2 Jun 04.  However, after receiving the Record of Proceedings, dated 17 Nov 04 (Exhibit K), counsel responded in a 7 Dec 04 letter (Exhibit L) that neither he, nor the applicant, ever received the SAFPC memorandum and, thus, never had the opportunity to respond to the discrepancies contained within.  A copy of the SAFPC memorandum was again mailed to counsel on 14 Dec 04.  In response, counsel submitted a “report” of factual discrepancies and requested the Board convene a new and different panel to reconsider its earlier decision (Exhibit N).

In his submission counsel notes that SAFPC in their memorandum correctly identifies the allegations against the applicant.  However, he states that SAFPC inaccurately concludes the applicant must have admitted guilt because he accepted responsibility and apologized.  Counsel states this is not true and was the reason the applicant requested a personal appearance in the Article 15 action.  Counsel states the applicant made it perfectly clear he was “not guilty” of the offenses accused and as a result the Article 15 authority completely struck two of the alleged offenses and materially altered the remaining allegation to allege the applicant violated paragraph 5.1.3 of AFI 36-2909 by repeatedly soliciting the female NCO to come to his room.  Counsel further states that SAFPC expressed their confusion in the statement that “for reasons not clear from the case file, respondent’s commander determined that respondent had only committed one of the offenses alleged against him….” Counsel opines that if SAFPC had investigated this matter, “rather than speculating,” they would have determined that the reasons for the actual findings related to the applicant’s presentation at his personal appearance.

Counsel opines that even as the commander finally framed it, by repeatedly soliciting the female NCO to come to a dorm room did not constitute a violation of AFI 36-2909.  Counsel states the applicant did not violate the Air Force instruction because he did not date or engage in sexual relations with the NCO as the AFI stipulated as a violation.  Counsel argues that in military law a punitive regulation, like a penal statute, is to be strictly construed.  Conduct of a similar nature to the proscribed conduct is not sufficient to constitute a violation of the punitive regulation.  He argues that the evidence demonstrates that the applicant neither engaged in sexual relations nor dated the NCO and, therefore, did not violate the proscriptions of AFI 36-2909.  Therefore, the Article 15 and involuntary discharge must be set aside.

Counsel argues that the SAFPC memorandum related the reasons they recommended the applicant retire in the lower grade of major.  However, since the recommendation was rejected and the applicant was allowed to retire in the grade of lieutenant colonel with no reason given, consideration of this information by the SAFPC was improper. Counsel states the applicant was never provided the opportunity to address SAFPC’s allegations and that SAFPC “apparently sought” to hold the applicant responsible for misconduct allegedly committed by others and for which there is no evidence he was involved or had knowledge of such misconduct.  Counsel opines, “it is likely” that the SECAF designee identified the effort to “tar” the applicant with the conduct of others when he refused to let the applicant retire in the lower grade.

Counsel further argues that SAFPC argues, without supporting evidence, that the applicant “sanctioned the misconduct” of subordinates.  Counsel requests that they be provided any evidence relied on by the Board that is claimed to support “this specious and entirely false” allegation.

Counsel’s complete submission is at Exhibit N.

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THE BOARD CONCLUDES THAT:

1.  After reviewing counsel’s response to the SAFPC memorandum, the Board still does not find sufficient evidence of an error or injustice warranting the relief requested.  We do not find counsel’s basis for requesting that this case be reviewed by a “new and different panel” sufficient to grant his request.  In accordance with the Board’s established procedures, requests for reconsideration are normally returned to the panel that originally considered the case, with new members substituted as necessary when the original members are no longer assigned to the Board.  

2.  We also do not agree with counsel’s assertion that the Board should not consider some of the content of the SAFPC memorandum in considering the merits of applicant’s request.  We note that while counsel states the applicant was never afforded the opportunity to respond to the allegations contained in the SAFPC memorandum; neither applicant nor counsel has been precluded from submitting such evidence and response to this Board.  We further note that while counsel has interpreted the decision by the “SECAF designee” to allow the applicant to retire in the higher grade as reflecting favorably on the applicant regarding the allegations that led to the Article 15 and discharge action, there is insufficient evidence to support such a position.  If we were to speculate, as counsel has, we would find it just as likely this decision was made on the basis of the applicant’s overall career or in keeping with decisions made in similar cases, rather than the alleged misconduct in question.  Counsel has not raised any new issues and has not presented sufficient new evidence to support his view regarding the legitimacy of the Article 15 and discharge actions.  We believe the Board has previously adequately addressed these actions.  Therefore, we find no basis to recommend granting the additional relief sought in this request for reconsideration.

3.  It still has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved in this case.  Therefore, the request for a hearing is still 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 probable 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 in Executive Session on 30 March 2005, under the provisions of AFI 36‑2603:

The following additional documentary evidence was considered:

	Exhibit K.  Record of Proceedings, dated 17 Nov 04,
                with Exhibits.
	Exhibit L.  Counsel’s Letter, dated 7 Dec 04.
	Exhibit M.  Letter, AFBCMR, dated 14 Dec 04.
	Exhibit N.  Counsel’s Letter, dated 9 Feb 05, with 
                attachments.