RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-03281
            INDEX CODE:  131.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The retirement grade determination allegedly made by the Secretary  be
declared null and void; and,  his  records  be  corrected  to  reflect
retirement as a lieutenant colonel  with  all  rights,  benefits,  and
entitlements to include award of any back pay  or  other  entitlements
denied him.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Personnel Council’s decision was not based on facts.  They did not
consider the information which he had submitted in rebuttal, and worse
still, included information about actions and events for which he  had
never been charged.  It is important to note that his chain of command
apparently had access to much of this material (although he did  not),
and  it  elected  not  to  charge  him   with   wrongdoing   on   many
specifications upon which the Personnel Council relied.  He should not
be found guilty by hearsay, innuendo, and speculation.  He should  not
be denied the right to rebut the information.  He certainly hopes this
is not the  case  as  the  outcome  of  the  Secretary’s  finding  was
financially devastating to him and to his  family  and  denigrated  25
years of faithful service.

There was no evidence which demonstrated clear abuse of discretion,  a
lack of integrity, and an  inability  to  responsibly  and  faithfully
execute the duties entrusted to him, just as  there  was  no  evidence
that he conveyed nonappropriated funds (NAF)  money  to  his  personal
benefit.  There was  also  no  evidence  that  his  improper  behavior
demonstrated that he did not perform satisfactorily  as  a  lieutenant
colonel.

In view of the evidence, which he is convinced demonstrates  not  only
probable error, but evidence which proves error  or  injustice  beyond
any doubt.

In support of his appeal, the applicant provides a personal  statement
and documents contained in the grade determination package.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

At the time the events  under  review  commenced,  the  applicant  was
serving on active duty in the grade of lieutenant colonel, with a date
of rank of 1 January 1992.  Available documentation reflects that,  on
20  Nov  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 1 Oct 94 and or  about  21 Oct  96,
without proper authority, dispose of a Perazzi  trigger  group,  of  a
value of about  $560.00,  military  property  of  the  Unites  States;
between on or about 21 Aug 95 and 24 Aug 95, without proper authority,
wrongfully dispose of military property, specifically  nonappropriated
funds in the amount of about $400.00, in that he improperly  purchased
a shadow box as a  gift  for  Colonel  S---  R---‘s.  retirement,  and
improperly used nonappropriated funds to  reimburse  himself  for  the
purchase of dinners for all those attending Colonel R---‘s  retirement
party at County Line restaurant; and, between on or about  26  Mar  96
and on  or  about  21 Oct 96,  without  proper  authority,  wrongfully
dispose of military property, specifically,  a  shooting  vest,  of  a
value of about $200.00, in that he gave the shooting vest to a federal
civilian employee.  He indicated that  he  desired  to  make  an  oral
presentation to the  commander  and  submitted  written  comments  for
review.  On 3 Dec 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.

On 10 Jan 97, 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:  The commander indicated that  the  applicant’s
misconduct resulting in punishment pursuant to Article  15,  Uniformed
Code  of  Military  Justice  (UCMJ)  had  prompted  the   review   and
determination.  The applicant    acknowledged    receipt    of     the
notification.  On 15 Jan 97, the applicant provided a statement in his
own behalf concerning the officer grade determination action.

On 2 Apr 97, the Air Force Personnel Board  considered  the  case  and
unanimously determined the last  grade  in  which  the  applicant  had
satisfactorily performed was major and that he should  be  retired  in
that grade.

On 8 Apr 97, the Secretary of the Force found that the  applicant  did
not serve satisfactorily in the  grade  of  lieutenant  colonel  (0-5)
within the meaning of Section 1370a(1), Title 10, United States  Code.
However,  the  Secretary  found   that   the   applicant   did   serve
satisfactorily in the grade of major (0-4), within the meaning of  the
above provision of law and directed that he be retired in that grade.

On 30 Jun 97, the applicant was relieved from active duty in the grade
of lieutenant colonel and retired, effective 1 Jul 97, in the grade of
major.  He was credited with 25 years,  10  months,  and  23  days  of
active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Retirements Branch,  AFPC/DPPRR,  reviewed  this  application  and
recommended denial.  DPPRR indicated that they cannot presume to  know
why the Personnel Council determined that the applicant’s  service  in
the grade of lieutenant colonel was deemed unsatisfactory.   According
to  DPPRR,   the   applicable   statute   provides   for   Secretarial
determination concerning satisfactory service.  The Personnel Council,
on behalf of the Secretary, determined  that  the  applicant  had  not
served  satisfactorily  in  the  grade  of  lieutenant  colonel   and,
therefore, directed retirement in the grade of major.  In their  view,
no error or injustice occurred during the officer grade  determination
(OGD) processing.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that, as his performance  was
unquestionably (and indisputably) exceptional for the first 42  months
of service as a lieutenant colonel, there was no basis to  invoke  the
“grade determination” provisions of 10 USC § 1370(a).  More egregious,
however, is the fact that the Personnel Council  used  secret,  extra-
record evidence against him, and unbeknownst to him.   He  noted  that
the Personnel Council chose to “destroy its evidence” against  him--in
clear violation of 44 USC § 3101.  He only asks the  Board  to  assess
the facts from the record.  The evidence of  injustice  was  profound.
There were manufactured charges, extra record accusations,  and  false
statements of fact.  He also asks the Board to review  the  statements
by his commanders--each very familiar with  his  situation,  and  each
recommending that he be retired as a lieutenant colonel.   Applicant’s
response is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable injustice.   The  evidence  of  record  reflects
that, subsequent  to  his  receipt  of  nonjudicial  punishment  under
Article 15, a Secretarial determination was made  that  the  applicant
had not served satisfactorily in the grade of lieutenant colonel,  and
that he should be retired in the grade of major.  While we have  found
no evidence which has shown to our satisfaction that  the  Article  15
punishment was improper or an abuse of discretionary authority, it  is
our opinion that approval of the requested relief would be appropriate
based on the following considerations.  After a thorough review of the
available evidence, we note that the applicant had an outstanding  Air
Force career and prior to the grade determination, with the  exception
of the infractions which led to the imposition of the Article  15,  he
had  performed  his  duties  faithfully  and  well  in  the  grade  of
lieutenant colonel for several years.  At the time the  officer  grade
determination  package  was  initiated,   the   applicant’s   superior
commanders,  including  the  commander  who  imposed  the  nonjudicial
punishment, recommended he be  retired  in  the  grade  of  lieutenant
colonel, noting his “well above  satisfactory”  duty  performance  and
expressing the opinion that a “reduction in his rank (would  have  no)
increased value either for retribution  or  deterrence.”   We  believe
that, being closer to  events,  their  opinions  deserve  considerable
deference in this matter.  As a final matter, we note the  calculation
that retirement in the lower grade resulted in a net loss of more than
$6,000 in retired pay per year and a total loss  of  $183,668  over  a
period of 30 years.  In view of all these considerations,  we  believe
that the applicant’s retirement in the grade of major was  excessively
harsh and, therefore, unjust and that the Article  15  was  sufficient
punishment for his misconduct.  Accordingly,  we  recommend  that  the
applicant’s records be corrected to reflect that  he  retired  in  the
grade of lieutenant colonel.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that, on 30 Jun 97, he was
relieved from active duty and, effective 1  Jul  97,  he  retired  for
length of service in the grade of lieutenant colonel.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 13 Apr 99, under the provisions of AFI 36-2603:

      Mr. Terry A. Yonkers, Panel Chair
      Mr. Mike Novel, Member
      Mr. James R. Lonon, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 Oct 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRR, dated 9 Feb 98.
     Exhibit D.  Letter, SAF/MIBR, dated 16 Mar 98.
     Exhibit E.  Letter, applicant, dated 14 May 98, w/atchs.




                                   TERRY A. YONKERS
                                   Panel Chair



AFBCMR 97-03281




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to Applicant, be corrected to show that, on 30 Jun 97,
he was relieved from active duty and, effective 1 Jul 97, he retired
for length of service in the grade of lieutenant colonel.





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency