RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04770 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: The Secretary of the Air Force reverse the decision to retire him at the lower grade of O-7. APPLICANT CONTENDS THAT: His punishment is unprecedented in the Air Force for the level of the offense. He was arrested for Driving Under the Influence (DUI); however, the charge was reduced to a traffic citation for Reckless Driving. He also contends that his situation does not rise to the level requiring an Officer Grade Determination (OGD), and it also deviated from OGD results of other retiring officers based on Freedom of Information Act information he obtained. To support his contention, he highlights the cases of twenty-one other officers who were retired in a lower grade: fourteen involved sexual acts, five involved serious lapses in morality, and two cases (other than his) involved an alcohol-related incident. The first violated an order to abstain from alcohol and made a false statement. The second received a DUI, got in an accident, fled the scene, and made false statements. Three other alcohol- related cases involved members who retired in grade. The first case involved an Article 15 and assaulting the spouse. The second case read the same as his with the exception the member received an Article 15 and was pulled over on base. The third case involved a member who was drunk on duty. Finally, his commander at the time of the offense and retirement did not agree that he be retired in a lower grade and submitted two memos on the applicant’s behalf to the Secretary of the Air Force. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to information obtained from the SAF/MRBR advisory and the applicant’s record, the following sequence of events was formulated. The applicant initially entered the Regular Air Force on 31 May 78. On 2 Nov 07, he was promoted to Major General. On 9 Feb 10, while on temporary duty in Nevada, the applicant was arrested for DUI, with a breath alcohol content of over twice the legal limit in Nevada. On 2 Mar 10, the AFMC/CC issued the applicant a letter of reprimand (LOR). On 13 May 10, he pleaded no contest to reckless driving and was sentenced to 60 days in jail (58 days suspended), to complete an online DUI School and Victim’s Impact Panel, as well as indirect supervision for one year. On 25 Jan 11, the AFMC/CC recommended the applicant retire in his current grade to both the Chief of Staff and Secretary of the Air Force. On 4 Mar 11, the AFMC/CC notified him that he would face an OGD. On 21 Mar 11, the AFMC/CC again recommended the applicant retire in his current grade to the Chief of Staff and Secretary of the Air Force. On 21 Jun 11, the Secretary of the Air Force Personnel Council considered the case. The Secretary personally decided the case, and in an instrument dated 29 Jun 11, the Secretary found he did not serve satisfactorily as a major general, directing his retirement as a brigadier general. On 1 Dec 11, the applicant retired from the Air Force. 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 indicating there is no evidence of an error or an injustice. The Air Force Instruction for OGDs at the time was AFI 36-3203, Service Retirements, dated 8 Sep 06. The guidance stated, “The Secretary of the Air Force (SAF) reviews each general officer retirement application to determine whether initiation of an OGC is appropriate. Lower level authorities in the general officer’s chain of command or supervision may also initiate an OGD.” The guidance leaves wide discretion as to when an OGD might be appropriate; however, paragraph 7.5.2, Initiating an OGD, gave factors a commander might consider in such cases to include “misconduct which has fallen short of a criminal conviction or Article 15, UCMJ punishment (such as conduct resulting in a UIF and/or letter of reprimand), or substandard performance of duty which has resulted in a referral officer performance report.” The applicant’s conduct did constitute criminal misconduct and appears to fall squarely within the types of misconduct contemplated. There was no error in the initiating of the OGD and the Secretary was well within the bounds of reason and acted within his discretion to render applicant’s service in the grade of major general as unsatisfactory. A complete copy of the SAF/MRBP evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 1 Dec 15 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. 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. 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 OPR and adopt its rationale as the basis for our conclusion 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 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-2014-04770 in Executive Session on 29 Jan 16 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Nov 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, SAF/MRBP, dated 19 Nov 15. Exhibit D. Letter, SAF/MRBR, dated 1 Dec 15. 1 2