RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-02411
            INDEX CODE:  126.04

            COUNSEL:  GEORGE E. DAY

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 initiated on 23 Jul 96 and
imposed on 26 Jul 96 be set aside and removed from  his  records,  and
that all rights, privileges, and benefits taken from  him  because  of
the Article 15 be restored.

His records be corrected to reflect that he retired in  the  grade  of
major, effective 31 Jul 96, vice captain, with retroactive pay, and he
be awarded and any other legal or  equitable  relief  appropriate  and
just.

_________________________________________________________________

APPLICANT CONTENDS THAT:

There was an illegal  breach  of  a  negotiated  plea  agreement  that
resulted in inadequate time for him to prepare a defense  against  the
government charges, and an inadequate opportunity to  obtain  existing
evidence and witnesses, which was to his detriment.   This  caused  an
improper unconstitutional reduction in his retirement grade.

There was an intentional  violation  of  military  and  Department  of
Defense regulations, and a conspiracy as well as collusion to  deprive
him of fair access either  to  the  court  system  or  to  his  earned
retirement pay.

There was prosecutorial misconduct  in  violation  of  Air  Force  and
Department of Defense regulations and the Manual for Courts-Martial.

In support of his appeal, the applicant provided a personal  statement
and a memorandum for record from an Area Defense Counsel.

Applicant’s complete submission is at Exhibit A.

Subsequent to  the  submission  of  the  applicant’s  appeal,  counsel
provided a statement, which is attached at Exhibit C.

_________________________________________________________________

STATEMENT OF FACTS:

By Special Order Number AC-015928, dated 19 Aug 95, the applicant  was
to be relieved from active duty and retired, effective  1 Aug  96,  in
the grade of major.  By Special Order Number AC-011810, the  order  to
the applicant’s date relieved from active duty,  on  31  Jul  96,  and
retirement, on 1 Aug 96, was  rescinded,  to  correct  his  retirement
grade.

Available documentation reflects that, on 23  Jul  96,  the  commander
notified the applicant that he was considering whether  he  should  be
punished under Article 15, Uniform Code  of  Military  Justice  (UCMJ)
based on allegations that the applicant did, between on  or  about  27
Feb 96 and on or about 23  Jul  96,  move  his  and  his  minor  son’s
personal belongings into the home of, reside with, and  engage  in  an
intimate, sexual relationship with B--- K. D---, a married  woman  not
his wife, the wife of Petty Officer First Class J---  R.  D---,  which
conduct was unbecoming of an officer and a  gentleman  in  the  United
States Air  Force.   After  consulting  military  legal  counsel,  the
applicant waived his  right  to  demand  trial  by  court-martial  and
accepted the nonjudicial punishment proceedings under Article 15.   He
indicated that  he  desired  to  make  an  oral  presentation  to  the
commander and submitted written comments for review.  On  26  Jul  96,
after  considering  the  matters  presented  by  the  applicant,   the
commander found that the applicant had committed one or  more  of  the
offenses alleged and imposed punishment.   The  applicant  received  a
reprimand  and  was  ordered  to  forfeit  $1000.00  for  two  months.
Applicant did not appeal the punishment.  A review by legal  authority
found the nonjudicial  punishment  under  Article  15  to  be  legally
sufficient.

By an undated  memorandum,  the  applicant’s  commander  notified  the
applicant  that  pursuant  to  10  USC  1370  and   AFI   36-3203,   a
determination would be made to decide the grade in which he  would  be
retired.  The basis for the action was  as  follows:   Between  on  or
about 27 Feb 96 and on or about 23 Jul 96, the applicant moved his and
his minor son’s personal belongings into the home  of,  resided  with,
and engaged in an intimate, sexual relationship with  the  wife  of  a
Navy enlisted member, which was conduct unbecoming of an  officer  and
gentlemen in the United States Air Force; and on divers occasions from
on or about 27 Feb 96 to on or about 23  Jul  96,  he  wrongfully  had
sexual intercourse with a married woman.  On 24 Jul 96, the  applicant
acknowledged receipt of the notification.

By letter, dated 25 Jul  96,  the  applicant  requested  clarification
regarding the determination of his retirement grade  and  that  he  be
given additional  time  to  prepare  his  response.   The  applicant’s
commander indicated that the processing  of  the  grade  determination
action would be in accordance with applicable statutes and regulations
to which the applicant and his defense counsel had ready  access,  and
that his request for a delay was denied.

On 29 Jul 96, the applicant provided a statement  in  his  own  behalf
concerning the officer grade determination action.

On 29 Jul 96, The Deputy Staff Judge  Advocate  recommended  that  the
case  be  forwarded  to  the  Secretary  of  the  Air  Force  with   a
recommendation that the applicant be retired in the grade of captain.

The Vice Commander, Ninth Air Force, indicated that he had  considered
the retirement grade  determination  case  file  and  the  applicant’s
rebuttal matters.  In his  opinion,  the  applicant’s  misconduct,  as
evidenced in the case file, outweighed his positive accomplishments in
the grade of major.  He recommended that the applicant be  retired  in
the grade of captain.

On 30 Jul 96, the Commander, Air Combat Command, indicated that he had
carefully reviewed the retirement grade determination package  on  the
applicant.  He indicated that the applicant’s adulterous  relationship
with an enlisted member’s wife  was  sufficiently  egregious  that  it
outweighed his otherwise satisfactory service in  his  present  grade.
The commander recommended that the applicant be retired in  the  grade
of captain.

On 31 Jul 96, The Secretary of the Force found that the applicant  did
not serve satisfactorily in  the  grade  of  0-4,  major,  within  the
meaning of Section 1370a, Title 10, United States Code.  However,  the
Secretary found that the applicant did  serve  satisfactorily  in  the
grade of captain, 0-3, within the meaning of the  above  provision  of
law and directed that he be retired as a captain as soon as possible.

On 31 Jul 96, the applicant was relieved from active duty in the grade
of major and retired in the grade of captain, effective 1 Aug 96.   He
had served 20 years and 1 day on active duty.

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AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and recommended denial of the applicant’s request that the Article  15
be set aside and removed from his records.  JAJM  indicated  that  the
applicant did not raise issues as to the propriety of the  Article  15
itself.  Rather, he assumed either that the Article 15 (as opposed  to
the factual information in his files supporting it)  was  prerequisite
to the grade reduction inquiry, or, alternatively, that the person  or
persons conducting the  inquiry  would  have  had  available  to  them
exculpating evidence he would have  submitted  in  opposition  to  the
Article 15, had he been put on notice of the need for such  and  given
the time to  gather  and  submit  it.   JAJM  did  not  address  these
contentions because, in their view, it was beyond the scope  of  their
advisory to address the  alleged  injustices  or  errors  suffered  in
connection with (a) the use of the Article 15 by persons reviewing the
applicant’s record in order to establish his retirement grade, (b) the
adequacy of such review under 10 U.S.C. 1370, and (c) the propriety of
engaging in any such review under the circumstances of the applicant’s
case.  JAJM concluded that there are no legal errors arising from  the
administration of the Article 15 which require corrective action,  and
that granting the applicant’s request on the  basis  of  such  is  not
warranted.  The Article 15  and  resulting  punishment  were  properly
executed and legally sufficient.

A complete copy of the JAG evaluation is at Exhibit D.

The Retirements Branch,  AFPC/DPPRR,  reviewed  this  application  and
recommended denial.  DPPRR indicated that after reviewing the  officer
grade determination (OGD)  package,  they  can  attest  that  all  the
procedures on the OGD package were followed in accordance with policy.
 The applicant was officially notified and given  the  opportunity  to
submit documentation on  his  behalf.   All  proper  coordination  and
recommendation were made from the unit commander (Unit/CC), the  major
command office of the judge  advocate  general  (MAJCOM/JA),  and  the
major  command  commander  (MAJCOM/CC).   According  to   DPPRR,   the
applicable statute provides for Secretarial  determination  concerning
satisfactory service and the Air Force Personnel Council, on behalf of
the  Secretary,  determined  that  the  applicant   had   not   served
satisfactorily in the grade of major—that agency  directed  retirement
in the grade of captain.  In  DPPRR’s  view,  no  error  or  injustice
occurred during the OGD processing.

A complete copy of the DPPRR evaluation is at Exhibit E.

The Defense Finance and Accounting Service - Cleveland Center, Retired
Pay  Operations  Technical  Branch,  (DFAS-CL/FRAB),   reviewed   this
application and indicated that  if  it  can  be  established  that  an
agreement was reached to retire the applicant in the grade  of  major,
they would not object to such a correction (Exhibit F).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded  to  applicant  and
counsel on 16 Feb 98 and 1 Oct 98 for review and response.  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 probable error or injustice.

      a.  The evidence of record reflects that, after considering  all
matters presented by the applicant, his commander determined  that  he
had committed one or more  of  the  offenses  alleged,  and  made  the
decision to impose  nonjudicial  punishment  under  Article  15.   The
applicant elected not to appeal the  punishment.   We  choose  not  to
disturb the discretionary judgments of commanding  officers,  who  are
closer to events, absent a strong showing of abuse of that  authority.
Therefore, in the absence of evidence which shows to our  satisfaction
that the applicant’s substantial rights were violated, he was  coerced
to waive  any  of  his  rights,  or  the  commander  who  imposed  the
nonjudicial punishment abused his discretionary  authority,  we  agree
with the opinion of JAJM regarding this issue and find no evidence  of
error or injustice.  Accordingly, the  applicant’s  request  that  the
Article 15 imposed on 26 Jul 96 be set  aside  and  removed  from  his
records is not favorably considered.

       b.  The  evidence  of  record  reflects  that   a   Secretarial
determination was made that the applicant did not serve satisfactorily
in the grade of major, and that he should be retired in the  grade  of
captain.  After a thorough review of the facts  and  circumstances  of
this case, a majority of the Board  believes  that  the  evidence  was
sufficient to support this  finding.   In  the  absence  of  clear-cut
evidence that the information used as  a  basis  for  the  Secretarial
grade determination was erroneous, or  that  there  was  an  abuse  of
discretionary authority, the applicant’s request that his  records  be
corrected to reflect that he retired in the  grade  of  major  is  not
favorably considered by a majority of the Board.

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  that  the  evidence  presented  did  not
demonstrate the existence of probable material error or injustice with
respect to his request that the nonjudicial punishment  under  Article
15 initiated on 23 Jul 96 and imposed on 26 Jul 96 be  set  aside  and
removed from  his  records,  and  that  all  rights,  privileges,  and
benefits taken from him because of the Article 15  be  restored;  that
this  portion  of  his  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.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice concerning the  applicant’s  request  that  his  records  be
corrected to reflect he retired in the grade of  major,  effective  31
Jul 96, vice captain, with retroactive pay  and  any  other  legal  or
equitable relief appropriate and just, and recommends this portion  of
his application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 1 Apr 99, under the provisions of AFI 36-2603:

      Mr. Vaughn E. Schlunz, Panel Chair
      Mr. Philip Sheuerman, Member
      Ms. Patricia D. Vestal, Member

The Board voted to deny the portion of the application  pertaining  to
the nonjudicial punishment under Article 15.  By a majority vote,  the
Board voted to deny the portion of the application pertaining  to  the
grade in which the applicant retired.  Mr. Schlunz voted to grant  the
request but did not desire to submit a minority report. The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Jul 97, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, counsel, dated 24 Dec 97.
    Exhibit D.  Letter, AFLSA/JAJM, dated 29 Sep 97.
    Exhibit E.  Letter, AFPC/DPPRR, dated 27 Jan 98.
    Exhibit F.  Letter, DFAS-CL/FRAB, dated 3 Apr 98.
    Exhibit G.  Letters, SAF/MIBR and AFBCMR, dated 16 Feb 98
                and 1 Oct 98.




                                   VAUGHN E. SCHLUNZ
                                   Panel Chair