RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-02638

	COUNSEL: NONE
	
	HEARING: YES

APPLICANT REQUESTS THAT:The officer grade determination (OGD) reducing his retired rank to major (O-4) be overturned, and he be retired at the rank of lieutenant colonel (O-5), and he be reimbursed all retirement pay lost since he was retired as an O-4.  

APPLICANT CONTENDS THAT:

The convening authority’s (ADFW/CC) refusal to set aside his 2013 court martial conviction—the event that triggered his OGD—constituted material error and his retirement in the grade of O-4 represented an injustice.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 9 Jul 93, the applicant initially entered the regular Air Force.

On 1 Nov 08, the applicant was promoted to O-5, effective same date.

On 15 Feb 13, a general court-martial found the applicant guilty of two specifications of conduct unbecoming an officer and gentleman for engaging in the “threesomes” with a first lieutenant and 
captain, occurring in 2007.  The court-martial found him not guilty of the sexual assault and assault allegations involving the captain.  It sentenced the applicant to “no punishment.  

According to AFPC/SP2STM-Transissions, an OGD was initiated on 1 Apr 13.  

On 10 May 13, the received a referral Officer Performance Report (OPR); he did not meet standards for Professional Qualities, Judgement and Decisions.  

According to SAF/MRBP, the OGD file arrived at their office on 9 Sep 13.  The Secretary of the Air Force Personnel Council (SAFPC) considered the case twice, on 18 Oct 13, and 26 Feb 14.  On both occasions, SAFPC recommended the applicant be retired in the grade of O-5.

On 16 May 14, the Secretary of the Air Force exercised her authority, found the applicant did not serve satisfactorily as a O-5, and determined he should be retired in the grade of O-4.  

On 31 Aug 14, the applicant was honorably discharged, and retired effective 1 Sep 14 in the grade of O-4, having served 21 years, 1 month, and 22 days of active service. 
 
For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION:

AFPC/DP2STM-Transitions recommends denying the application.  In Feb 13, the applicant was convicted by general court-martial of two specifications in violation of Article 133, UCMJ, Conduct Unbecoming an Officer and a Gentleman. For these offenses, he was sentenced to “No Punishment”.  He requested for retirement on 11 Mar 13 with a retirement effective date of 1 Aug 13.  Upon submission of the application to the commander, it was determined that the applicant had a court-martial conviction requiring an OGD.  The applicant was properly notified in writing that an OGD would be initiated on 1 Apr 13 and he submitted comments on his behalf.  The OGD package forwarded to the SAFPC on 9 Sep 13 included the applicant’s retirement application along with supporting documents.  Based off of 10 USC §1370(a), which allows the Secretary of the military department to determine whether an officer’s service is satisfactory in the highest grade held on active duty to determine the grade in which the officer will retire.  On 16 May 14, the Secretary of the Air Force determined the applicant would be retired in the grade of O-4 by virtue of not serving satisfactorily in the higher grade of O-5.  The complete advisory is at Exhibit E.

SAF/MRBP recommends denying the application.  In Feb 13, a general court-martial of officer members found the applicant not guilty of rape and assault, but guilty of conduct unbecoming an officer for “engaging in contemporaneous sexual conduct” with two other individuals on consecutive days in May 07.  The misconduct was not reported to military authorities until 2012. The court-martial sentenced the applicant to no punishment.  The Commander, 11th Force Support Squadron (11 FSS/CC), initiated a mandatory OGD on 1 Apr 13, pursuant to 10 U.S.C. §1370 and AFI 36-3203, Service Retirements, for violating two specifications of Article 133, Uniform Code of Military Justice (UCMJ).  

The Secretary of the Air Force (deciding authority on his OGD) received recommendations that the applicant be retired in the grade of captain (AFDW/CC)), major (11 FSS/CC), and lieutenant colonel (SAF/MRB).  On 16 May 14, the Secretary of the Air Force directed his retirement in the grade of major.  The applicant has not submitted evidence or made argument showing that the Secretary’s decision was erroneous, arbitrary, or unjust.  The OGD process was procedurally sound, including the Secretary’s decision.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 12 Jul 18 for comment (Exhibit E), and the applicant replied on 8 Aug 18.  In his response, the applicant contended the Secretary of the Air Force’s decision that he retire in the rank of O-4 was “arbitrary, capricious, and an abuse of discretion.”  He reiterates his service to the Air Force throughout his career was nothing short of exemplary.  In support of his contention, he submitted a letter of support from his civilian defense counsel during his GCM trail.  The applicant’s complete response is at Exhibit F.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error and injustice.  After reviewing the totality of the evidence presented, the Board concurs with the rationale and recommendation of AFPC/DP2STM and SAF/MRBP, and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the applicant has not submitted evidence that the Secretary’s decision was erroneous, arbitrary, or unjust.  In the absence of evidence to the contrary, we find the applicant is not a victim of an error or injustice.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-02638 in Executive Session on 4 Sep 18:

, Panel Chair 
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 29 Jun 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM-Transissions, w/atchs, dated 19 Sep 16.  
Exhibit D:	Advisory opinion, SAF/MRBP, dated 19 Jan 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Jul 18.
Exhibit F:	Applicant’s response, dated 8 Aug 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9, pertaining to . Docket Number BC-2016-02638.