RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01033 COUNSEL: TIMOTHY M. MACARTHUR HEARING DESIRED: YES APPLICANT REQUESTS THAT: The Officer Grade Determination (OGD) be overturned and his retired grade be changed from major to lieutenant colonel. APPLICANT CONTENDS THAT: The proper procedures for completing his OGD were not followed correctly and in a timely manner. The applicant's complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 15 May 2013, the Secretary of the Air Force determined the applicant did serve satisfactorily in the grade of major, but did not serve satisfactorily in the grade of lieutenant colonel. As a result the SAF directed the applicant retire in the grade of major. On 30 June 2013, the applicant retired in the grade of major after serving 24 years, 5 months and 4 days on active duty. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. It appears the applicant received proper consideration during the OGD process. The recommendations made by his immediate supervisor and the former PEO were part of the correspondence presented to the Personnel Council, and the decision on his retired grade was made based on valid information by the appropriate authority. While the OGD was initiated a few months after the non-judicial punishment occurred, it is not unusual for there to be a delay in processing. OGDs are rare and, due to their significance, often require lengthy consideration and deliberation. It does not appear that this delay was extremely excessive. AFI 36-3203, paragraph 7.5 requires an OGD be accomplished when an officer applies for retirement in lieu of court-martial or administrative separation action; when the officer has a court- martial conviction; when the officer has a civil court conviction for misconduct involving moral turpitude or in which the sentence includes confinement for one year or more without regard to suspension or probation; when the officer received non-judicial punishment within two years of the date of retirement application; or when the commander or other appropriate authority believes an OGD is appropriate. Typically, the commander or designated representative would identify the OGD requirement during the retirement application process; however, in this case, the non-judicial punishment did not occur until after the application was approved. As stated in AFI 36-3203, table 2.1, note 1, and paragraph 7.5.9, when it is later determined that an OGD is required - the retirement is suspended, which occurred when AFPC/DPSOR received the OGD package from HQ AFMC/CV. In determining whether an officer has provided satisfactory service, the SAF considers the nature and length of the officer’s misconduct, the impact the misconduct had on military effectiveness, the quality and length of the officer's service in that grade, past cases involving similar misconduct, and the recommendations of the officer's command chain. In the directive, dated 15 May 13, the SAF found the applicant did serve satisfactorily in the grade of Major, but did not serve satisfactorily in the grade of lieutenant colonel. As a result, the SAF directed the applicant be retired in the grade of major. The complete DPSOR evaluation, with attachments, is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel states the evaluation focuses on facts that demonstrate why an OGD was legal and in accordance with regulation in this case. It does not address the thrust of the argument - that the overwhelming evidence in this case supports retirement in the rank of lieutenant colonel. For instance, the contention is not whether his superior had authority to request the OGD. The proper question is why didn’t the applicant’s chain of command request the OGD at the time of his non-judicial punishment? The chain of command did not initiate an OGD because they did not consider it appropriate in this matter. The applicant has accepted responsibility for his mistake. His misconduct was brief in duration. As pointed out in his initial brief, the OGD appears to have made a determination that any misconduct as a lieutenant colonel invalidated all honorable and credible service in that rank. This is simply not the case and is not a proper interpretation of the statute in question. He served in the rank of lieutenant colonel for seven years. He had a brief affair that he ended after one month. He paid dearly for his mistake. The interests of justice will be served by overturning the decision of the OGD as the evidence has established that its decision is an unfair characterization of his service as a lieutenant colonel Also, he believes this to be unduly harsh punishment that unfairly hurts his family. The counsel’s complete response is at Exhibit D. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application is timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the facts and circumstances of this case and given the seriousness of his misconduct, the Board does not believe that the findings of the OGD constitute an injustice. In our view, the applicant’s behavior was incongruent with the highest standards expected of a senior field grade officer in the United States Air Force. The applicant has not submitted evidence showing that the statutorily required OGD action was inappropriate or that the determination of the Secretary’s designee was erroneous. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as basis for our conclusion that the applicant has failed to sustain his burden of proof of the existence of either an error or injustice in this case. 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 an 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-2014-01033 in Executive Session on 8 January 2015, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Forms 149, dated 26 February 2014, w/atchs. Exhibit B. Letter, AFPC/DPSOR, dated 20 April 2014. Exhibit C. Letter, SAF/MRBR, dated 22 September 2014. Exhibit D. Letter, Applicant, dated 22 October 2014, w/atchs.