RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                    DOCKET NUMBER:  96-02760

            INDEX NUMBER:  108.00, 129.04
            COUNSEL:  DAV

            HEARING DESIRED:  NO
___________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he was medically retired  as  a
lieutenant colonel or, alternatively, his records be  corrected  to
reflect he was retired under the early retirement  program  in  the
grade of lieutenant colonel rather than major.
___________________________________________________________________

APPLICANT CONTENDS THAT:

Late in 1994, the recommendation for  medical  retirement  and  the
referral to an administrative discharge board were forwarded to Air
Force  Headquarters  under  a  procedure  referred  to   as   “dual
processing.”  He understood that the Air  Force  Personnel  Council
was free to approve either recommendation, the  medical  retirement
or the referral to an administrative discharge board.  The  Council
did neither.  Rather, informally it solicited  an  application  for
early retirement from him.  At the time he  was  not  advised  that
such an application would involve a grade determination.

The solicitation of the early  retirement  application  was  itself
unjust and inequitable.  In early 1994, he submitted an application
for early retirement but it was rejected and he was  informed  that
the early retirement program was not applicable to  anyone  subject
to certain other administrative actions including AFR  36-2.   When
the Air Force Personnel Council  was  confronted  with  the  choice
between approving a medical retirement and  convening  a  discharge
board, what had been inapplicable became applicable.

In  support  of  his  request,  applicant  provided  his   expanded
comments,  with  15  attachments,  which   included   documentation
associated  with  his  Physical  Evaluation  Board  (PEB)  and  his
response  to  the  notification  of  Secretarial  Determination  of
Satisfactory Service.  Also included  were  copies  of  performance
reports, and letters of character reference  from  his  pastor  and
former nurse.  His complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

On 29 May 1970,  applicant  was  appointed  as  second  lieutenant,
Reserve of the Air Force.  He was voluntarily ordered  to  extended
active duty on 1 February 1974 for an indefinite period.   On  that
same date, he was designated as a Judge  Advocate.   On  3  October
1978, he was honorably released from active duty and transferred to
the Air Force Reserve.

He was voluntarily ordered to extended active on 31  July  1980  in
the grade of captain.  He was designated as  a  Judge  Advocate  on
4 August 1980.  He served on continuous active duty, was integrated
into the Regular component  on  6 August  1981,  and  progressively
promoted to the grade of lieutenant colonel, with a date of rank of
1 June 1987.

A resume of  applicant’s  OERs/OPRs  subsequent  to  his  voluntary
return to active duty on 31 July 1980 follows:

     PERIOD CLOSING    OVERALL EVALUATION

      26 Dec 80  1-1-1
      26 Dec 81  1-1-1 (w/LOE)
      26 Dec 82  1-1-1
      23 Jul 83  1-X-1
      31 Aug 84  Education/Training Report (TR)
      31 Aug 85  1-1-1
      27 Jan 86  1-1-1
      31 Jul 86  1-1-1
      31 Jul 87  1-1-1
      15 Jul 88  1-1-1
      29 May 89  Meets Standards (MS)
      29 May 90  MS
       1 Jan 91  MS
       9 Jul 91  MS
       9 Jul 92  MS
       9 Jul 93  MS
       9 Jul 94  Does Not Meets Standards
            (Referral)
       9 Jul 95  MS

The following facts pertaining to this case were obtained from  the
evaluation provided by the BCMR Medical Consultant at Exhibit D:

In January 1994, applicant pled guilty  to  a  charge  of  indecent
exposure in civilian court for  an  arrest  that  had  occurred  on
17 December 1993.  When an investigation disclosed that this arrest
was the result of a pattern of behavior dating back several months,
administrative action toward dismissal followed.  In February 1994,
around the time  that  administrative  action  was  initiated,  the
applicant was seen in the Mental  Health  Clinic  and  subsequently
admitted because of a  diagnosis  of  major  depression.   After  a
period of evaluation and treatment, the  applicant  was  discharged
from the hospital on 1 April 1994.  A subsequent Medical Evaluation
Board found him unfit for worldwide duty.  The case was referred to
the Informal Physical Evaluation Board  which  found,  on  18  July
1994, the applicant  to  be  unfit  for  further  military  service
because of the diagnosis of major depression, single episode,  with
considerable social  and  industrial  impairment.   The  disability
rating for this  under  the  VASRD  code  is  fifty  percent.   The
applicant concurred with this finding.  The case was then  sent  to
the Air Force Personnel Council (AFPC) as a dual-action case.

On 18 October 1994,  applicant’s  commander  notified  him  that  a
Secretarial determination of satisfactory service, as  required  by
10 USC 1370, would be made  by  the  Secretary  of  the  Air  Force
Personnel Council in deciding the grade in which applicant would be
retired.  On 28 October 1994, applicant provided his response, with
attachments,  for  consideration.   On  8  November   1994,   after
reviewing the applicant’s  response,  his  major  command  (MAJCOM)
commander recommended the applicant be  retired  in  the  grade  of
lieutenant colonel.  On 18 November 1994, the  MAJCOM  Staff  Judge
Advocate (SJA) recommended applicant be retired  in  the  grade  of
lieutenant colonel.  On 30 November 1994,  the  wing  SJA  reviewed
applicant’s submission and recommended that he be  retired  in  the
grade of major.   On  that  same  date,  the  wing  commander  also
recommended retirement  in  the  grade  of  major.   The  case  was
processed  through  his  MAJCOM  commander  who  recommended   that
applicant’s  request  for  voluntary  retirement  be   disapproved;
however, if allowed to retire, that he be retired in the  grade  of
major.   On  10  August  1995,  the  Secretary  of  the  Air  Force
terminated the involuntary discharge  action  under  AFR  36-2  and
approved applicant’s request for early retirement.   The  Secretary
further found that the applicant did not  serve  satisfactorily  in
the grade of lieutenant colonel, and directed that he be retired in
the grade of major.

Effective 31 August 1995, applicant was relieved from  active  duty
and retired effective 1 September 1995 in the grade of  major.   At
the time of his retirement,  he  was  credited  with  19  years,  9
months, and 19 days of active service for retirement.

The  DVA  rating  of  27  December  1995,   diagnosed   applicant’s
conditions as service-connected  for  major  depression,  30%  from
1 Sep 95;  residuals,  bunionectomy,  right,  0%  from  1  Sep  95;
residuals,  bunionectomy,  left,  0%  from  1  Sep  95;  residuals,
fracture, right leg, 0% from 1 Sep 95; with a  combined  rating  of
30% from 1 Sep 95.

___________________________________________________________________

AIR FORCE EVALUATION:

The Programs and  Procedures  Branch,  AFMPC/DPPRP,  reviewed  this
application  and  deferred  to  the  BCMR  Medical  Consultant  for
comments  and  recommendations  pertaining  to  the   dual   action
processing and applicant’s concerns.

DPPRP noted that Title 10, USC, 1370 provides  for  the  retirement
grade of officers and authorizes the determination of  satisfactory
service by the Secretary of the military department concerned.  AFI
36-3203, para 7.2, describes the conditions and procedures used  to
process these officer grade determinations for retirement purposes.
 A grade determination was accomplished  in  applicant’s  case  and
announced on 10 August 1995.  This grade determination resulted  in
his retirement in the grade of major.

The complete evaluation is at Exhibit C.

The BCMR Medical Consultant, reviewed this application  and  opined
that no change in the records is warranted and  recommended  denial
of the request.

The BCMR Medical Consultant stated  that  evidence  of  record  and
medical examinations prior to January 1994 indicate  the  applicant
was fit and medically qualified for continued military service  and
did not have any physical or  mental  condition  which  would  have
warranted consideration under the provisions of AFI  36-3212.   His
service record indicates that he was functioning at a high level of
capability  with  no   deterioration   of   mental   functions   to
substantiate a pre-existing or chronic depression.

The medical conditions which occur as a result  of  misconduct  are
not compensable for purposes of medical retirement.  The  case  was
considered under  the  dual-action  process  to  determine  if  the
medical condition (depression) contributed  to  the  cause  of  the
misconduct or was the result of the misconduct and  the  subsequent
administrative actions.

The evidence of record  clearly  supports  the  latter  case,  and,
therefore, the evaluations of the MEB and  IPEB,  though  medically
accurate, are irrelevant to the subsequent  discharge  proceedings.
It appears that the applicant was allowed a face-saving  exit  from
the service by being allowed to retire with an honorable discharge.
 Evidence of record  shows  that,  while  the  applicant  did  have
depression while on active duty, this condition was the  result  of
his arrest and conviction for indecent exposure and the  subsequent
administrative actions.  Evidence of record establishes beyond  all
reasonable doubt that his separation was proper, and that no  error
or injustice occurred in this case.

The complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant took exception to the  opinions  expressed  by  the  BCMR
Medical Consultant and provided additional arguments in support  of
his request.  He reiterated his contentions that he was deprived of
having the SAF Personnel Council make one of two decisions  it  was
called  upon  by  regulation  to  make,   medical   retirement   or
administrative discharge action.  It did so by making available  to
itself an option, Temporary Early Retirement Authority,  an  option
for which the regulations did not provide.  The service declined to
make that option available to  him  at  a  time  when  his  medical
condition was not known.  It chose to make that option available at
a time when his disability was known and it could have approved the
recommendations of the Physical Evaluation Board.

Applicant’s 10-page statement, with attachment, is at Exhibit F.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Staff Judge Advocate, AFPC/JA, reviewed  this  application  and
recommended  denial,   stating   that   the   Secretary   had   the
discretionary authority to retire the applicant  in  the  grade  of
major.

After providing a history of the processing of the applicant’s case
and the considerations he received at each step in the process,  JA
stated the applicant has failed to show there was any  legal  error
or injustice.  Likewise, and contrary to any assertions  otherwise,
there is substantial evidence and justification to support  all  of
the actions taken against the applicant.

JA noted that applicant challenges first, the authority of the  SAF
Personnel Council to take the actions it did,  and  then  questions
the validity of the officer grade determination  in  light  of  his
otherwise good and unblemished military record.

As to whether SAFPC overstepped its authority when it approved  the
applicant’s request for early retirement,  JA  stated  it  was  Air
Force policy at the time  (and  still  is  for  that  matter)  that
individuals, if  otherwise  meeting  the  threshold  qualifications
under the TERA, were ineligible  to  retire  if  they  were  facing
adverse  administrative  action.   That  policy  was  set  by   the
Secretary of the Air Force and  the  Secretary  of  the  Air  Force
(acting through SAFPC) has the authority to waive  that  policy  as
long as it is not done arbitrarily, it is supported by  substantial
evidence, and there is some articulated rational  basis  for  doing
so.  Without question, SAFPC’s actions were not arbitrary.

As to the validity of the officer grade  determination,  JA  stated
applicant’s current file  is  much  the  same  as  the  package  he
initially submitted to the SAFPC  when  it  conducted  the  initial
officer grade determination.  He has added  two  current  character
references from  a  nurse  and  a  clergyman  and  has  attached  a
newspaper article regarding his family.  JA is of the opinion  that
however  laudatory  the  applicant’s  current   conduct,   it   has
absolutely nothing to do with whether the SAFPC actions were legal,
and supported by substantial  evidence  then  existing.   Applicant
provided his performance report to substantiate the high quality of
his duty performance and maintains that under 10 USC 1370(a) he has
served the requisite three years in grade and minimum six months of
satisfactory service, thereby compelling a retirement in the  grade
of lieutenant colonel.  JA disagrees that retirement in that  grade
is compelled.

While language in the statute in question  is  arguably  confusing,
the  legislative  history  and  the  case  law   interpreting   its
predecessor provision (10 USC 8963) are clear  that  the  Secretary
has broad discretion in determining  whether  the  service  in  the
highest grade held has been satisfactory,  and  the  Secretary  may
consider the officer’s record during  his  entire  tenure  in  that
grade is so determining.  The six month  period  merely  represents
the minimum time necessary for an officer to  serve  in  the  grade
before the Secretary is in the  position  to  make  a  satisfactory
service determination.

In this case, applicant’s first seven years as a lieutenant colonel
were marked by excellent efficiency  reports  and  two  Meritorious
Service Medals.  However,  his  service  from  April  1993  through
December 1993,  is  marked  by  repeated  misconduct  -  misconduct
sufficiently serious to have warranted a criminal conviction.  Even
when considered in the context of the officer’s entire record as  a
lieutenant colonel, this misconduct provides more than a sufficient
basis to support a Secretarial characterization  of  unsatisfactory
service as a lieutenant colonel.  There is no evidence  to  support
applicant’s assertion that he was  asked,  informally,  to  request
early retirement and that he was not informed of the possibility of
an officer grade determination.  In  JA’s  opinion,  the  applicant
effectively took this issue off the table when he admitted that  it
wouldn’t have made any difference.

The complete evaluation is at Exhibit G.

___________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant again disagreed with the evaluation provided by the  BCMR
Medical Consultant (Exhibit D) and provided his comments as to  why
the evaluation should be disregarded in its entirety.

In response to the AFPC/JA evaluation, he  restated  his  arguments
that the service chose not to play by the rules and that it did so,
not at the member’s request or for his  benefit,  but  at  its  own
behest for its own purposes (reasons).  He states that what  is  at
issue is the propriety of  soliciting  his  application  for  early
retirement after having previously refused to  consider  a  similar
application from him and  after  having  been  presented  with  the
medical facts of his condition which showed a fifty percent medical
disability and a recommendation for medical retirement.

Applicant provided additional discussion on the issue  of  fairness
(justice) of the finding, based on  his  entire  record,  that  the
grade of major was the highest grade to which he was  entitled  for
purposes of retirement.

Applicant’s 25-page statement, with attachment, is at Exhibit I.
___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  After carefully reviewing the evidence of record,  we  are  not
persuaded that the applicant has been the victim  of  an  error  or
injustice.  We believe that the actions taken by the Air Force were
the  result  of  a  thorough  consideration  of   the   applicant's
circumstances  and  that  there   was   sufficient   evidence   and
justification to support the actions taken against him.

4.   The  applicant  alleges  that  it  was  unjust  to  disapprove
retirement with a medical disability; that it was unjust  to  offer
him an opportunity to retire voluntarily; and that it was unjust to
conclude that he did not serve honorably as a  lieutenant  colonel.
The Board is not  persuaded  of  this.   The  applicant's  repeated
misconduct was of a  kind  for  which  the  Air  Force  has  little
tolerance.  Even so, the applicant was strongly supported  by  both
immediate  and   former   commanders,   and   various   extenuating
circumstances were extensively considered (although their relevance
and weight  were  also  debated).   The  April  20,  1995,  SAF/MIB
memorandum approved  by  the  Secretary  and  the  case  file  that
accompanied  it  convince  us  that  thoughtful  and  compassionate
consideration was given at multiple levels of the Air Force to  the
applicant's situation and past service, including  his  application
for early  retirement.   We  also  disagree  with  the  applicant's
characterizations of the various actions taken by  the  Air  Force.
For example, where the applicant sees himself as having been forced
to make a choice that he should not have been required to make,  we
see the applicant as having been offered a choice he did not  think
he had -- and one that  proved  attractive  to  him.   Insufficient
evidence has been presented to persuade us that the Air Force acted
unjustly in this matter.

5.    Additionally, the November 7, 1997 advisory from  HQ  AFPC/JA
persuades us that the evidence before the Air Force Personnel Board
and the Secretary was sufficient for their  actions  and  that  the
procedures followed in this case were in accordance with applicable
law.  We therefore  agree  with  the  recommendation  from  the  HQ
AFPC/JA advisory and adopt the rationale expressed in it.[1]

6.  We conclude that the applicant has failed to sustain his burden
of establishing the existence of either an error or  an  injustice.
Accordingly, we find no basis upon  which  to  recommend  favorable
action on this application.


THE BOARD DETERMINES THAT:

The applicant be notified  that  the  evidence  presented  did  not
demonstrate the existence of probable material error or  injustice;
that the application was denied without a personal appearance;  and
that 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 this  application  in
Executive Session on 11 August 1998, under the provisions of AFI 36-
2603:

      Mr. Douglas J. Heady, Panel Chair
      Mr. Joseph G. Diamond, Member
      Mr. Henry Romo Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Sep 96, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFMPC/DPPRP, dated 16 Oct 96.
    Exhibit D.  Letter, BCMR Medical Consultant, dated 6 Feb 97.
    Exhibit E.  Letter, SAF/MIBR, dated 10 Mar 97.
    Exhibit F.  Letter from Applicant, dated 10 Apr 97, w/atch.
    Exhibit G.  Letter, AFPC/JA, dated 7 Nov 97.
    Exhibit H.  Letter, SAF/MIBR, dated 24 Nov 97.
    Exhibit I.  Letter from Applicant, dated 23 Feb 98, w/atch.




                                   DOUGLAS J. HEADY
                                   Panel Chair


-----------------------
[1] We do not adopt, nor have we relied upon, the February 6, 1997
advisory to the Board from the BCMR Medical Consultant.