RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00087
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  9 JUL 2006

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APPLICANT REQUESTS THAT:

The Officer Grade Determination (OGD) conducted in 2002 be set aside and he be transferred to the retired Reserve in the grade of lieutenant colonel (O-5).
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APPLICANT CONTENDS THAT:

He was innocent of the bad check allegations and has provided major mitigating factors regarding the travel card charges.  His submission should show that the OGD action taken was excessive, unfair and deserves to be set aside (refer to his former counsel’s Brief for details).

In support of his request, applicant’s former counsel submits a Brief, with attachments.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The applicant’s Total Federal Commissioned Service Date (TFCSD) is 31 May 1981.  He was appointed a captain in the MN Air National Guard (ANG) and Reserve of the Air Force (ResAF), effective on or about 15 September 1988, contingent upon Federal recognition.  Effective 21 April 1990, while serving in the grade of captain, ANG, ResAF (not on extended active duty (EAD)), the applicant, was reappointed from Line of the Air Force (Category A) to Judge Advocate (JA) (Category J).  He was promoted to the grade of lieutenant colonel, (ANG) ResAF, with a promotion service date (PSD) of 26 August 1997 and an effective date of 28 January 1998.

Applicant's profile for the last nine reporting periods follows:

		Period Ending	Evaluation

	(Major)	20 Apr 92	Meets Standards (MS)
		20 Apr 93	MS
		20 Apr 94	MS
		20 Apr 95	MS
		20 Apr 96	MS
		20 Apr 97	MS
	(LtCol)	20 Apr 99	MS
		20 Apr 00	MS
		20 Apr 01	MS

The applicant was awarded the Air Force Commendation Medal (AFCM) for meritorious service while assigned to the Office of the Staff Judge Advocate, Grand Forks AFB, ND, during the period 14 April 1998 to 30 June 2001.

The following information was extracted from the Officer Grade Determination (OGD) documentation.

The applicant was issued a Letter of Reprimand (LOR) on 14 January 2002 for his Government Travel Card (GTC)-related misconduct, which was placed in an Unfavorable Information File (UIF) established on 18 April 2002.  In April 2002, the applicant began to be delinquent on payments to his GTC account, which resulted in past due balances.  As of 3 January 2002, his account balance was $1,591.63, of which $1,020.51 was delinquent.  On over 80 occasions between November 2000 and January 2002, the applicant improperly used his GTC when he was not in any duty status.  In October 2000, he wrote two checks, each in the amount of $1,495.47, to pay his GTC bill--both checks were dishonored for insufficient funds.

On 25 January 2002, the applicant submitted his Application for Transfer to the Retired Reserve, AF Form 131, with an effective date of 25 July 2002.

Due to the LOR/UIF action and the GTC-related misconduct upon which it was based, there was some doubt he served satisfactorily in the grade of lieutenant colonel (O5).  On 21 May 2002, the applicant was notified that his commander was initiating an OGD action.  On 2 July 2002, the applicant submitted his response to the OGD action.  On 15 July 2002, HQ ARPC/JA recommended the commander forward the OGD package through command channels to the Secretary of the Air Force, with a recommendation to transfer the applicant to the Retired Reserve in the grade of major.  On 17 July 2002, the HQ ARPC commander forwarded the OGD package to the Secretary of the Air Force Personnel Council (SAF/PC), with a recommendation that the applicant’s highest grade satisfactorily held should be that of major (O4).  SAF/PC considered the applicant’s OGD case on 15 August 2002 and recommended he be retired in the lower grade of major.  On 3 September 2002, the Director of the Air Force Review Boards Agency, acting under the authority delegated by the Secretary of the Air Force, found the applicant did not serve satisfactorily in the grade of lieutenant colonel (O5).  However, he did serve satisfactorily in the grade of major (O4) and directed that he be retired in that grade.  Approval of this action did not excuse any indebtedness to the United States Government.  The applicant was relieved from his current assignment, assigned to the retired Reserve section and placed on the USAF Reserve retired list in the grade of major, effective 4 September 2002.  He is eligible for retired pay under 10 USC 12731, except for attainment of age 60 [10 January 2019].
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AIR FORCE EVALUATION:

HQ ARPC/JA recommends the application be denied.  JA states that from April 2000 until January 2002, the applicant’s government travel card (GTC) carried a past due balance.  The applicant’s argument concerning the number of service members with more than 60 days overdue in paying their GTC debt is irrelevant as it does not address what action, if any, was taken against other service members or what the circumstances were for their delinquencies.  With respect to applicant’s argument that, while his purchases were not “technically” authorized, they were made in conjunction with Reserve duty, JA indicates this argument fails because the purchases were unauthorized in every aspect and there was nothing “technical” about the lack of authorization.  As to applicant’s claim he relied on the words of a pay technician that certain money would be deposited in his account, JA opines that, while this may account for one check to bounce, once one is on notice insufficient funds exist in an account, one is obligated to confirm that funds later exist.  The claim that the GTC program is poorly administered and many members are delinquent is irrelevant, as it does not address the fact that the applicant carried balances for months on his GTC and had every opportunity to clear those balances.  JA states the applicant’s argument that he was not court-martialed, nor even offered an Article 15, yet will suffer greatly from reduced retirement pay, ignores the fact that he committed the offenses in a civilian status and neither judicial, nor nonjudicial punishment were authorized.  The most severe penalty that could be administered was a Letter of Reprimand (LOR).  As to the referenced cases, they are totally unrelated to the present case and of no significance.  The HQ ARPC/JA evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and indicates the Government has inappropriately used, as a basis for his OGD, a Letter of Reprimand (LOR)--a tool meant to encourage military members to improve their performance.  There is simply no legal authority to use an LOR as a basis for imposing a punishment greater than one usually receives only after a court-martial or other judicial action.  In order to retire at the rank of lieutenant colonel (O5), he would have had to serve three years in that rank.  The Government does not dispute he served three years as an O5 honorably and capably.  His date of rank (DOR) was 27 August 1997 and his first alleged incident of inappropriate conduct was October 2000.  He relied on the word of an experienced Air Force pay technician before he wrote the checks in question.  In hindsight, he should not have done so.  The Government never alleges fraud for any of the conduct used as a basis for the OGD.  The Government Travel Charge Card (GTC) bills were all paid and the insufficient funds checks were cleared in the same month they were written.

He served as an O5 for approximately 38 months before the first insufficient check incident.  There were 15 months in which there were charges on his GTC when he was not in the appropriate military status.  In other words, over 60 percent of his service as an O5 was without blemish.  Even the Government concedes that many of the charges [Nebraska, Iowa and Colorado] occurred while he was enroute to inactive duty training at Buckley AFB, Colorado.  He made a mistake for which he has paid dearly--forced early retirement, loss of a possible promotion to colonel (O6), thousands of dollars in legal fees and public embarrassment.  Therefore, allowing him to retire in the grade he earned (O5) does not mean he will not have paid for his errors in judgment.

The applicant’s complete submission is at Exhibit E.

On 31 March 2005, the Air Force Board of Correction for Military Records (AFBCMR) provided the applicant with a copy of the Secretarial Officer Grade Determination (OGD) letter, with attachments, which would be provided to the Board for consideration (Exhibit F).  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 error or injustice.  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 and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In view of the above and absent evidence to the contrary, we find no basis to recommend granting the relief sought in this application.
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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.
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The following members of the Board considered Docket Number BC-2005-00087 in Executive Session on 5 May 2005, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 22 Dec 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ ARPC/JA, dated 11 Mar 05.
   Exhibit D.  Letter, SAF/MRBR, dated 18 Mar 05.
   Exhibit E.  Letter from Applicant, undated.
   Exhibit F.  Letter, AFBCMR, dated 31 Mar 05, w/atch.

                                   
                                   Panel Chair