RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00937 COUNSEL: NONE HEARING DESIRED: NO _______________________________________________________________ APPLICANT REQUESTS THAT: His officer grade determination (OGD) be reviewed and he be allowed to retire in the grade of colonel (O-6). _______________________________________________________________ APPLICANT CONTENDS THAT: Aside from the indiscretion that led to his Article 15 punishment, his service record was exemplary. His commander at the time asked him to resign immediately from the Air Force in exchange for his assurance that he would be able to retire in the grade of colonel. In spite of his commander’s strong support, he was reduced to the grade of lieutenant colonel (O-5) upon his retirement. His retirement in the grade of lieutenant colonel has caused a financial hardship. He strongly believes his career of service with the Air Force merits that he be retired in the grade of colonel. In support of his appeal, the applicant provides a personal statement, a statement from his counsel, Secretary of the Air Force Personnel Council (SAFPC) grade determination, Record of Nonjudicial Punishment, several letters of support, and copies of several officer performance reports. The applicant’s complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: On 2 December 2005, the applicant’s commander appointed an investigating officer (IO) to conduct a Commander Directed Investigation (CDI) into allegations of a possible unprofessional relationship between the applicant and one or more members of his staff. A legal review, dated 7 January 2006, indicates the IO found five allegations against the applicant substantiated. The five substantiated allegations were: (1) violation of Article 92, Uniform Code of Military Justice (UCMJ), through willful dereliction in the performance of duties by failing to obey the provisions of Air Force Instruction (AFI) 36-2909, Professional and Unprofessional Relationships, by having an unprofessional relationship with a civilian employee whom he supervised, that adversely affected morale, discipline and respect for authority; and, that resulted in favoritism, misuse of position, and the abandonment of organizational goals for personnel interest; (2) violation of Article 92, UCMJ, by failure to obey the lawful order by his superior to cease any unprofessional relationship with members of his directorate; (3) violation of Article 92 of the UCMJ, by failing to obey a lawful general regulation, AFI 33- 119, Air Force Messaging, and DoD 5500.7-R, the Joint Ethics Regulation (JER), by using government communication resources for other than official or authorized purposes; (4) violation of Article 107, UCMJ, by lying to superiors regarding whether an unprofessional relationship existed between himself and his secretary; and (5) violation of Article 133, UCMJ, by engaging in all of the above acts which constitute conduct unbecoming an officer and a gentlemen. An Air Force IMT 1160, dated 26 January 2005, indicates the applicant voluntarily requested retirement effective 26 January 2006. On 30 January 2006, the applicant was notified by his commander of his intent to impose Article 15 punishment against the applicant for conducting an unprofessional relationship with his civilian secretary, as it was his duty not to do. On 3 February 2006, his commander found the applicant did commit one or more of the offenses alleged and imposed punishment of forfeiture of $2000 pay and a reprimand. On 20 March 2006, SAFPC found the applicant did not serve satisfactorily in the grade of colonel within the meaning of Section 1370(a)(1), Title 10 United States Code; however, he did serve satisfactorily in the grade of lieutenant colonel within the meaning of the provision of law; and, directed he be retired in the grade of lieutenant colonel. Title 10, United States Code, Section 1370 (a) (1) indicates “Unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.” The applicant was honorably released from active duty on 31 March 2006 and retired effective 1 April 2006 in the grade of lieutenant colonel. He served 26 years, 6 months, and 12 days of active duty. _______________________________________________________________ AIR FORCE EVALUATION: AF/DPO recommends denial of the applicant’s request. DPO indicates they concur with the 20 March 2006 determination by SAFPC. The complete DPO evaluation is at Exhibit C. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 12 June 2009, a copy of the Air Force advisory opinion was forwarded to the applicant 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 an error or injustice. After a thorough review of the available records, we found no evidence the individual’s records are in error. Applicant argues for relief on the basis that he elected to retire because his commander guaranteed he would retire in the grade of colonel. However, the Board majority notes that since the commander was not the final decision authority and could only make a recommendation, such a guarantee would be improper and outside the scope of the commander’s authority. Disturbingly, the applicant’s contentions regarding this matter give the appearance of efforts on the part of his commander to circumvent the procedures in place to deal with circumstances such as the applicant’s. The Board majority also notes that while a grade determination would not have been mandatory had the applicant served two years after receiving the Article 15, the commander still had the option to request such a review. Consequently, it is simply speculation on the applicant’s part as to the outcome had he not retired when he did. At most, it seems reasonable to the Board majority, the applicant, being a senior officer, should have well understood the most his commander could do was to make a favorable recommendation on his behalf, which it appears he did. Additionally, the Board majority notes the applicant has not offered any compelling evidence regarding the conduct, which led to his receipt of the Article 15 and his subsequent retirement, to show the actions taken against him constitute an error or injustice. Therefore, it is the opinion of the Board majority the relief requested should be denied. _________________________________________________________________ THE BOARD DETERMINES THAT: A majority of the Board finds insufficient evidence of error or injustice and recommends the application be denied. _______________________________________________________________ The following members of the Board considered this application in Executive Session on 27 August 2009, under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a majority vote, the Board recommended denial of the application. XXXX voted to correct the record as requested but did not wish to submit a minority report. The following documentary evidence for AFBCMR Docket Number BC-2009-00937 was considered: Exhibit A. DD Form 149, dated 5 Mar 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AF/DPO, dtd 4 Jun 09. Exhibit D. Letter, SAF/MRBR, dated 12 Jun 09. Panel Chair