RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-02225 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Officer Grade Determination (OGD) which concluded his highest grade satisfactorily held was lieutenant colonel (O-5) be removed from his records. His records reflect he was retired in the grade of colonel (O-6) and he receive the associated pay and benefits. APPLICANT CONTENDS THAT: Applicant, thru counsel, states the OGD board erred in failing to recognize the six years of credible, honorable service from 2006 to 2012 before his extramarital relationship and the over two years of credible, honorable service afterwards (December 2012 to May 2015). He admitted to an extramarital relationship from March to November 2012 and accepted an Article 15 for the relationship. This relationship lasted less than nine months of his 110 months of duty in the grade of colonel. This leaves 101 months, which is eight years and five months of credible service that warrants recognition by the Board. He continued to serve honorably after the relationship ended as evidenced by his performance records, decorations and the assessment of his supervisors and co- workers. In March 2006, he was promoted to the grade of colonel two years below-the-zone. Following his promotion, he had five assignments to include a joint assignment, two command level tours and he voluntarily deployed to Afghanistan. He received two Legion of Merit Medals, a Bronze Star Medal, the Meritorious Service Medal, Afghanistan Campaign Medal, the Korean Defense Service Medal and other awards. His Officer Performance Reports (OPRs) consistently stratified him number one and included recommendations for group and wing commander positions. On a personal level, his wife also forgave him. He has exhausted all administrative remedies provided. He accepted responsibility and is remorseful for the nine month relationship outside of his marriage. The nine months should not erase the other 101 months he served honorably in the grade of colonel. The overwhelming evidence in his record, supported by his leadership, demonstrates he served credibly in the grade of colonel for at least six months as required by 10 U.S.C. § 1370(a)(1) and more than three years as required per 10 U.S.C. § 1370(a)(2)(A) to retire in the grade of colonel. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 May 2015, the applicant retired. He was credited with 29 years, nine months and one day of active duty service. According to the OGD dated 10 February 2015, the Secretary of the Air Force (SECAF) determined the applicant did not serve satisfactorily in the grade of colonel within the meaning of 10 U.S.C. § 1370(a)(1). However, the Secretary determined the applicant served satisfactorily in the grade of lieutenant colonel and directed he be retired in that grade. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force Office of Primary Responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: SAF/MRBP recommends denial. The council was properly convened, the relevant evidence properly considered and the council unanimously recommended retirement in the lower grade of lieutenant colonel. Additionally, the Secretaries, or their delegees, have wide discretion making determinations of satisfactory or unsatisfactory service. The applicant’s exemplary service was overshadowed by having sex on two occasions with a subordinate the applicant rated. The standards for an OGD are cited in 10 U.S.C. § 1370(a)(1), Rule for Retirement in Highest Grade held Satisfactorily and AFI 36-3203, Service Retirements, which state that unless entitled to a higher retired grade under some other provision of law, a commissioned officer shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Military Department concerned. The SECAF or designee may retire an officer in a grade lower than the highest grade held when a determination is made that the officer did not serve satisfactorily in the higher grade. Service Secretaries have broad discretion in making findings of satisfactory or unsatisfactory service. In determining whether an officer has served satisfactorily, the council considers the nature and length of the officer’s improper conduct, the impact the conduct had on military effectiveness, the quality and length of the officer’s service in each grade at issue, past cases involving similar conduct and the recommendations of the officer’s command chain. The council has long held that a single incident of misconduct can render service in a grade unsatisfactory despite a substantial period of otherwise exemplary service. In this case, the applicant’s exemplary service was overshadowed by having sex on two occasions with a subordinate he rated. The OGD was initiated because the applicant received an Article 15 for failure to obey a lawful general regulation for adultery. On 11 September 2014, the applicant was notified an OGD was being initiated and on 30 September 2014, his commander recommended he be retired in the grade of colonel. On 25 November 2014, the Air Force District of Washington Commander (AFDW/CC) recommended he be retired in the lower grade of lieutenant colonel and on 10 December 2014, the Air Force Colonels’ Group (AF/DPO) also recommended retirement in the lower grade. On 29 January 2015, the council unanimously recommended retirement in the lower grade of lieutenant colonel. The applicant had a sexual relationship with a direct subordinate, one he rated. Such conduct alone constitutes a significant departure from acceptable conduct. It is further aggravating that the applicant lied about it in his response to the Article 15. The misconduct of having sex with a subordinate he rated betrayed the trust the Air Force instills in its colonels and overshadowed the positive aspects of his record. The applicant also failed to discuss an additional affair covered in the Report of Investigation (ROI) that supported the OGD, one with a lieutenant colonel he rated and also the misuse of his government issued Blackberry. The council was aware of and discussed the applicant’s extraordinary record. A complete copy of the SAF/MRBP evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant, thru counsel, states the advisory opinion fails to adequately consider his lengthy and exceptional service and solely focuses on an alleged unprofessional relationship with a lieutenant colonel which he steadfastly denies. He admitted to the extramarital affair he participated in. The advisory opinion characterizes an alleged unprofessional relationship with the lieutenant colonel as fact rather than accurately portraying the vague, contradictory recollection made by the lieutenant colonel in the original transcript from the ROI. He continues to maintain his innocence and only addresses the allegation to respond to the advisory opinion. The advisory opinion references collateral concerns with misuse of a government Blackberry which he conceded to. Surely the unintended misuse of a government Blackberry compared to his entire service history cannot be grounds to pile-on and find his overall exceptional service for over eight years in the grade of colonel was less than honorable overall. The advisory opinion fails to consider that the overwhelming number of officers who are retired at a lower grade failed to continue their honorable service following the allegations and did not serve more than nine years of active military service in the grade of colonel. The overwhelming majority of officers who are retired also do not have the extraordinary career service record the applicant has. The advisory opinion refers to a case with similar circumstances in which the individual was allowed to retire in the grade of colonel and describes the colonel as an “outlier.” It would seem the applicant is the outlier who merits retirement in the grade of colonel. The advisory opinion also fails to assign proper weight to the opinion of the Deputy Chief of Staff, Intelligence who acknowledged the gravity of the offenses but noted he was punished and that good order and discipline were not affected. The advisory opinion also fails to address the opinions provided on behalf of the applicant by general officers and senior civilians. The interest of justice will be served by allowing him and his family to receive the benefits they earned over the past 30 years of exemplary service. The applicant’s complete response is at Exhibit E. 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 an error or injustice. After carefully reviewing the evidence of record, to include counsel’s rebuttal response, we are not persuaded that corrective action is warranted. Counsel argues the applicant’s over eight years of service in the grade of colonel should outweigh his misconduct for which he received an Article 15 and that the applicant’s circumstances are similar to a case in which retirement in the grade of colonel was permitted. However, we are persuaded no evidence has been presented to show that the statutorily required OGD action was inappropriate or that the determination was erroneous. Furthermore, we note the broad discretion of the SECAF in making findings of satisfactory or unsatisfactory service per 10 U.S.C. § 1370. Therefore, we agree with the opinion and recommendation of SAF/MRBP and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of either an error or an injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2015-02225 in Executive Session on 10 March 2016 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 May 2015, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, SAF/MRBP, dated 10 August 2015. Exhibit D. Letter, AFBCMR, dated 17 November 2015. Exhibit E. Letter, Counsel, dated 16 December 2015.