RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00354 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Any derogatory information be removed from his official military record. 2. He be reinstated to the grade of colonel (0-6) rather than lieutenant colonel (0-5) and receive all pay allowances associated with that grade. _________________________________________________________________ APPLICANT CONTENDS THAT: In a 12-page brief, the applicant’s counsel makes the following key contentions on his behalf: He is entitled to the requested relief because he is not guilty of conduct unbecoming of an officer; the fraternization charge was unsubstantiated; his punishment is disproportionate to the offense; and the interest of equity and fairness would be best served by appropriately recognizing and compensating him for his service. While it may have been inappropriate or unsuitable for him to interact with a married woman, it does not rise to the level of more serious conduct that is dishonoring or disgraceful. Although he was married at the time, his wife had not lived with him for over a year and they were living separate lives. Additionally, he had no reason to know the woman was married because she was not wearing a wedding ring; she had prior relationships with multiple individuals, and she was openly living with an enlisted member on base. There is no evidence of an actual physical relationship between him and the woman; however, there is substantial evidence that they carried on communications of a suggestive nature, the discussions were about the future and made no reference to current inappropriate behavior. Concerning the fraternization charge, there is insufficient evidence that fraternization occurred. In this situation, an enlisted member was having problems so he came to speak to the applicant. The applicant listened and made sure the enlisted member got home safely. There is nothing wrong with an officer counseling an enlisted member. Unfortunately, the enlisted member became emotional and drunk, but the applicant did the right thing by taking care of the enlisted member. The charge also claims he discussed his personal relationship with the enlisted member; however, the evidence does not support that theory. The punishment for the offenses was “disproportional to the charge and not congruent to the punishments of others”. The applicant’s counsel references a previous case from 1997 that involved General R stating he was being looked at for a possible promotion when a past affair became known. In that case, the Secretary of Defense defended the General’s candidacy by stating “The need for top military officers to serve as moral beacons ‘does not come from notions of perfection,’ but from possessing ‘the character to acknowledge our mistakes honestly and then make things right.’” In support of his request, the applicant provides excerpts from the investigation and his personnel file. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The Secretary of the Air Force (SecAF) made a grade determination and retired the applicant in the grade of lieutenant colonel on 30 Sep 09. Additional relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant was investigated for having an inappropriate relationship with a civilian female dependent spouse of an active duty enlisted member. The applicant’s commander found him guilty and offered him nonjudicial punishment for wrongfully and dishonorably engaging in an unprofessional relationship of a sexual nature with a civilian nonappropriated fund employee, a woman married to an active duty member of which conduct was unbecoming an officer and a gentleman, and was in violation of Article 133 of the UCMJ. The applicant accepted the Article 15 and waived his right to demand trial by court-martial. He made oral and written presentations to his commander; however, after considering the evidence and the matters presented, the commander found he committed the alleged offense and imposed as punishment forfeiture of $2,500.00 pay per month for two months and a reprimand. The applicant appealed the punishment to his commander and then to the appeal authority. Both commanders denied the applicant’s appeal. After a legal review, the punishment was found to be legally sufficient. The applicant argues that he has been punished disproportionately “for a minor mistake.” However, the applicant admits, “sending a suggestive text message” to the woman in question, but says this does not amount to the charged offense. JAJM states that despite the volume of material submitted, there is little information supplied that supports the requested action. JAJM believes the commander was in the best position to weigh all evidence, make informed findings of fact, and arrive at a suitable punishment. In addition, the Article 15 underwent legal reviews at two different levels of command, both of which were found to be legally sufficient. JAJM also notes that “an unprofessional relationship of a sexual nature” does not require proof of “an actual physical relationship” as argued by the applicant. These facts are more than sufficient to allow his commander to have found that he engaged in the charged conduct. The commander’s decision and subsequent punishment were both within the discretionary limits of his authority. The applicant was afforded all rights under Article 15, UCMJ, and there is no evidence the commander acted arbitrarily or capriciously, or that he violated the applicant’s due process rights. The complete JAJM evaluation is at Exhibit B. AFPC/DPSOR recommends denial. DPSOR states the SecAF had sufficient evidence to make a determination whether or not the applicant’s service in the grade of colonel was satisfactory. The applicant has provides no evidence to reverse the Secretary of the Air Force’s determination of retiring him in the grade of lieutenant colonel based upon the Article 15, UCMJ, in which the applicant accepted his commander’s judgment as to guilt or innocence. The DPSOR complete evaluation, with attachment, is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 15 Apr 11 for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ 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 opinions and recommendations of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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 issues 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 AFBCMR Docket Number BC-2011-00354 in Executive Session on 20 Sep 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence for Docket Number BC-2011- 00354 was considered: Exhibit A. DD Form 149, dated 27 Dec 10, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 22 Mar 11. Exhibit C. Letter, AFPC/DPSOR, dated 28 Mar 11. Exhibit D. Letter, SAF/MRBR, dated 15 Apr 11. Panel Chair