RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-03817
            INDEX CODE:  100, 126, 128.14,
 136

            COUNSEL:  Disabled American
                                           Veterans

            HEARING DESIRED:  Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His record be corrected to reflect all  of  his  performance  in
every rank as satisfactory.

2.    Correct “Action of the Secretary  of  the  Air  Force”  (officer
grade determination), dated 28 May 96, to indicate retirement  in  the
rank of lieutenant colonel.

3.    Restore all rights, honors,  privileges,  retirement  pay  (with
interest), and all property affected and elimination of any  reference
to any of these proceedings in all records.

4.    Correct and set aside the Article 15 he received in  1995  which
served as the basis for the grade determination proceedings.

5.    Return $3,600 in  fines  (plus  interest)  resulting  from  that
Article 15.

6.    Return $1,800 in legal fees (plus interest) which were  incurred
due to the government’s gross negligence in its handling of this case.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was not guilty of the Government’s allegations.  He claims that his
Area Defense Counsel (ADC) did not accompany him to a single  required
signing or meeting regarding the Article 15 and met with him  on  only
several brief occasions.  He faults the ADC for not knowing about  the
mandatory Officer Grade Determination (OGD) policy in  effect  at  the
time the ADC advised him.  He also makes  numerous  other  allegations
related to his mandatory officer retirement  grade  determination  and
that the dates in Blocks #8 and 9 of the Article 15 were predated.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military  Service  Date  (TAFMSD)
was 17 Jun 73.

Applicant’s  Officer  Effectiveness   Reports   (OERs)   and   Officer
Performance Reports (OPRs) profile since 1985 follows:

            PERIOD ENDING          OVERALL EVALUATION

              1 Jun 85                  1-1-1
              1 Jun 86                  1-1-1
              1 Jun 87                  1-1-1
              1 Jun 88                  1-1-1
              1 Jun 89               Meets Standards
              1 Jun 90               Meets Standards
              1 Jun 91               Meets Standards
             23 Apr 92               Meets Standards
             23 Apr 93               Meets Standards
             23 Apr 94               Meets Standards
             23 Apr 95               Meets Standards

In Nov 94, the applicant contacted an airman at the  Headquarters  Air
Force Military Personnel Center (AFMPC) about updating his Acquisition
Professional Development Program (APDP) Level III  certification.   He
then faxed a copy of a Certified Acquisition Professional Certificate,
dated 15 Nov 94, to the  airman.   AFMPC  then  updated  his  records.
Subsequently, on 8 Dec 94, the applicant told an officer at AFMPC that
he (applicant) had APDP Level III certification.

In Jan 95, the  applicant  contacted  a  Program  Manager  at  Wright-
Patterson AFB, Ohio, about a job opening.  The applicant  subsequently
sent a letter, dated 6 Jan 95, by datafax outlining his experience and
expertise.  In the letter, the applicant stated that he had obtained a
Level III certification.  He also provided the Chief of  Rated/Support
Officer Assignments at Wright-Patterson AFB a letter stating he held a
Level III certification.

In 1995, AFMPC conducted an audit of the APDP and discovered that  the
applicant’s certification  did  not  contain  a  verification  from  a
functional manager  representative  and  that  he  did  not  have  the
requisite experience required for a Level  III  certification.   AFMPC
requested  that  the  applicant  provide  the   appropriate   verified
documents to confirm his  acquisition  experience  and  certification.
The applicant faxed AFMPC the same document he had originally sent  in
Nov 94.

In Feb 95, AFMPC contacted AFPEO/CM to check if the Level III  awarded
by Pacific Air Forces (PACAF) was valid.  AFPEO/CM responded that  the
certification should not have been awarded.

On 2 Mar 95, AFPEO/CM drafted a  staff  summary  sheet  to  SAF/AQ  to
revoke the applicant’s certification and his professional  acquisition
corps membership.

On 6 Mar 95, SAF/AQ revoked the  Level  III  certification  and  corps
membership.  AFPEO/CM faxed the applicant’s package to the Director of
Logistics, PACAF.

On 4 May 95, the applicant requested voluntary  retirement,  effective
1 Nov 95.

In an interview on 17 May 95, the Director of Logistics, PACAF, stated
he never authorized the Level III certification for the applicant  nor
did he ever sign the Level III certification.   However,  he  verified
that the signature on the certification was his but that the date  had
not been written by him.  He further stated  that  he  never  had  the
authority to award a Level III certification, only Levels  I  and  II.
The only offices which could authorize a Level III were SAF/AQ and the
Director of Air  Force  Materiel  Command  (AFMC).   The  Director  of
Logistics, PACAF, related that Level III certifications were rare  and
that no one assigned at Headquarters PACAF,  including  himself,  held
such a certification.  The Director of Logistics, PACAF, then referred
this investigation to the Office of Special Investigations (OSI).

The OSI conducted a criminal investigation.  The  applicant  requested
an attorney when interviewed, thus  no  statement  was  obtained.   On
25 May 95, the OSI searched the applicant’s office after  obtaining  a
search authorization.  The search yielded numerous documents  relating
to the applicant’s acquisition credentials, including, but not limited
to,  resumes,  job  application  letters,  and  memorandums  to  AFMPC
requesting certification upgrades.   A  review  of  the  documentation
revealed  that  prior  to  mid-1994,  the  applicant  stated  he   had
credentials in Program Management Levels  I  and  II  and  Acquisition
Logistics Level I.  However, in various correspondence following  this
time  period,  the  applicant  claimed  to  have  acquired  a  Program
Management Level III certification.

Laboratory  analysis  determined  the  signature  on  the  Level   III
certificate had been reproduced, that the type and print fonts used in
some of the entries made on the documents  were  different,  and  that
there were indications of alterations in portions of the text.

Interviews of officials at AFMPC, AFMC,  and  the  Pentagon  disclosed
that the  applicant  had  been  actively  seeking  employment  in  the
acquisition field  during  this  time.   Many  of  the  jobs  required
substantial  acquisition  experience.   These  officials  stated   the
applicant represented himself as having far more  experience  than  he
actually had.

On 31 May 95, applicant was placed on administrative hold by  the  OSI
due to the ongoing investigation against him and  on  14 Jun  95,  the
original retirement date of 1 Nov 95 was rescinded.

On 24 Jul 95, the applicant’s commander notified him of his  intention
to administer nonjudicial punishment pursuant to Article  15,  Uniform
Code of Military Justice (UCMJ).  The applicant  was  charged  with  4
counts of false official statements in violation of Article 107, UCMJ,
for the following:

      Between on or about 1 Nov 94 to on  or  about  15 Nov  94,  with
intent to deceive, submit to Senior  Airman  C---  C---,  an  official
document, to wit:  A Certified Acquisition  Professional  Certificate,
dated 15 Nov 94, that had been altered by applicant  in  that  he  had
placed “Level III” on the certificate  reflecting  that  he  had  been
awarded this acquisition level, which document was totally false.

      On  or  about  6 Jan  95,  with  intent  to  deceive,  applicant
submitted to Lieutenant Colonel K--- R---, an official  statement,  to
wit:  a letter stating that applicant held an APDP Level  III  Program
Management Certification, which statement was totally false.

      On  or  about  6 Jan  95,  with  intent  to  deceive,  applicant
submitted to Major M--- F---, an official statement, to wit:  a letter
stating that applicant held  an  APDP  Level  III  Program  Management
Certificate, which statement was totally false.

      Further investigation revealed that applicant did, on  or  about
8 Dec 94, with intent to deceive, make to Major M--- C---, an official
statement, to wit:  that applicant held  an  APDP  Level  III  Program
Management Certification, which statement was totally false.

After consulting with an attorney,  the  applicant  indicated  to  the
commander that he was electing to accept nonjudicial proceedings under
Article 15 rather than requesting a court-martial.  The applicant  did
not wish to make a personal appearance before the commander.  He  did,
however, submit a written presentation.

On 8 Aug 95, the commander determined that the applicant committed the
alleged offenses and imposed punishment consisting  of  forfeiture  of
$1,800 pay a month for 2 months and a reprimand.   The  applicant  did
not appeal.  An Unfavorable Information  File  (UIF)  was  established
with respect to the Article 15.  The record of the punishment was also
placed in applicant’s Headquarters USAF Selection Record  and  Officer
Command Selection Record.

On 29 Aug 95, applicant was removed from administrative hold after the
Article 15, UCMJ, action had been completed.

On 7 Sep 95, applicant requested voluntary retirement, effective 1 Sep
96.

On 12 Oct 95, the applicant again applied for retirement from the  Air
Force, requesting a retirement date of 1 Sep 96.  On  30 Oct  95,  the
15th Air Base Wing/CC (ABW/CC) notified  the  applicant  that  he  was
initiating an OGD.  Therefore, his request for retirement on 1 Sep  96
was denied.

On 28 Nov 95, the commander found that the  applicant  did  not  serve
satisfactorily or honorably in his present grade (lieutenant  colonel)
and recommended the applicant retire in the grade of major.

On 5 Mar 96, in a letter to the Secretary of the Air  Force  Personnel
Council (SAF/PC), the commander indicated the  applicant’s  misconduct
as documented by Article 15 action  clearly  indicated  unsatisfactory
service as a lieutenant colonel and that  if  the  Secretary  accepted
applicant’s retirement request, he recommended the applicant retire in
the grade of major.

On 28 May 96, the Secretary of the Air Force found that the  applicant
did not serve satisfactorily in the higher grade of lieutenant colonel
within the meaning of Section 1370(a)(1), Title 10, United States Code
(USC).   However,  the  Secretary  found  the  applicant   did   serve
satisfactorily in the rank of major within the meaning  of  the  above
provision of law and directed that he be retired in that grade.

On 1 Oct 96, the applicant voluntarily  retired  from  the  Air  Force
under  the  provisions  of  AFI  36-3203   (Sufficient   Service   for
Retirement) with an honorable characterization of service in the grade
of major.  He was credited with 23  years,  3  months,  and  14  days’
active service for retirement.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  reviewed
this application and indicated that, regarding  applicant’s  complaint
that the ADC failed  to  accompany  him  to  the  Article  15  signing
sessions, there is no requirement for  defense  counsel’s  to  do  so.
Additionally, defense counsel’s are not  mandatory  by  statute.   The
ADC’s 8 Nov 95 letter in the file indicates that the  ADC  helped  the
applicant prepare his written Article 15 presentation  and  that  they
discussed matters in extenuation and mitigation.

In regard to applicant’s complaint  that  the  ADC  counseled  him  to
accept nonjudicial punishment proceedings under Article  15  otherwise
he would have demanded trial by court-martial had the ADC advised  him
about a  recent  mandatory  policy  that  required  mandatory  officer
retirement grade determinations for any officer punished under Article
15 within 2 years of retirement, they state that in cases such as this
where the evidence  is  so  overwhelming,  it  is  rare  that  defense
counsels recommend a court-martial or counsel defendants on all of the
collateral consequences of nonjudicial punishment.  Tactical decisions
of counsel, unless unreasonable under the circumstances, do not amount
to ineffective assistance of counsel.

Counsel’s failure to inform the applicant about the  mandatory  policy
is not ineffectiveness unless it is  prejudicial  to  the  case.   Not
advising the applicant in question simply was not prejudicial  to  his
case.  The new  policy  also  made  officer  grade  determinations  in
conjunction with retirement mandatory for officers with  court-martial
convictions (AFMPC message, dated Jun 95).  Under Section 1370,  Title
10, USC, which was effective on 15 Sep 81, the SAF, or  designee,  had
the authority to retire an officer in a grade lower than  the  highest
grade  held  when  the  officer  did  not  hold   the   higher   grade
satisfactorily.  One of the general rules regarding retired  grade  is
that where there is doubt that the member served satisfactorily in the
higher grade, the SAF, or designee,  determines  if  the  service  was
satisfactory.  The SAF has the authority to  make  the  determination,
even where no administrative or punitive action is  taken  or  in  the
case  where  a  service  member  is  acquitted  during   court-martial
proceedings.  In summary, all that the AFMPC message did  was  clarify
the need for officer grade determinations to be accomplished.

Regarding applicant’s allegations that the dates in Blocks #8 and 9 of
the  Article  15  were  predated,  nothing  in  Part  V,   Nonjudicial
Punishment Procedure in the Manual for Courts-Martial, discusses  date
requirements on the AF Form 3070.  Assuming arguendo that there was  a
procedure governing the date  requirements  for  different  blocks  on
Article 15s, paragraph 1h of Part V states that failure to comply with
any of the procedural violations of Part  V  shall  not  invalidate  a
punishment imposed under  Article  15,  unless  the  error  materially
prejudiced a substantial right of the service  member.   None  of  the
applicant’s substantive rights were violated as a result of two blocks
in the Article 15 being predated.

JAJM states that the Article 15  was  properly  accomplished  and  the
applicant was afforded all rights granted by statute  and  regulation.
He was given ample opportunity to provide  written  responses  to  the
commander.  (Of note is the fact that in his written  presentation  to
the commander, he does not deny liability.  Instead, he sets forth his
Air Force accomplishments to date and then asks the commander to limit
punishment “to the shortest time possible so that he  can  once  again
proceed with his retirement planning).  There is no evidence that  the
commander was anything but neutral and  objective  and  the  resulting
sentence was within legal limits.  JAJM recommends the Board deny  the
application.

A complete copy of the Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation  and  provided  a  15-page
rebuttal letter.

Applicant’s  complete  response,  with  attachments,  is  attached  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.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice.  Applicant’s contentions
are duly noted; however, we find no compelling  basis  upon  which  to
conclude that he has been the victim of an  error  or  injustice.   In
this respect, we note that the commander determined that the applicant
committed the alleged offenses  and  imposed  nonjudicial  punishment.
After nothing the seriousness of the  offenses  (falsified  documents,
mistated/misrepresented his qualifications, etc.), we do not find  the
conclusion  that  the  Article  15  action  represents  unsatisfactory
service as a lieutenant colonel to  be  either  in  error  or  unjust.
Furthermore, we note that the Military Justice  Division  opines  that
the  applicant  was  afforded  all  rights  granted  by  statute   and
regulation  and  finds  no  merit  to  the  applicant’s   contentions,
including the OGD issue.  Therefore, in  the  absence  of  substantive
evidence to the contrary, we agree with the recommendation  from  that
office and adopt its rationale as the basis for  our  conclusion  that
the applicant has failed to sustain his  burden  of  establishing  the
existence of either an error  or  an  injustice  warranting  favorable
action on his requests.

4.    The documentation provided with this case was sufficient to give
the Board a clear understanding of the issues involved and a  personal
appearance, with or without counsel, would not have  materially  added
to that understanding.  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;
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 15 April 1999, under the provisions of Air  Force
Instruction 36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Grover L. Dunn, Member
                  Mr. Gregory W. Den Herder, Member
                Mrs. Joyce Earley, Examiner (without vote)

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 24 Dec 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 2 Mar 98.
     Exhibit D.  Letter, AFBCMR, dated 19 Mar 98.
     Exhibit E.  Letter from applicant, dated 8 May 98, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair