RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01860
            INDEX CODE:  131.09

            COUNSEL:  FRED L. BAUER

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His grade of 0-5 be restored, with full back pay and allowances.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The way that the officer grade determination (OGD) was handled in this
case was illegal due to the fact that the policy on expanding the  OGD
program was changed after the Air Force had made a contract  (Pretrial
Agreement) with him and he had fulfilled his part of the bargain.

In support of his appeal, the  applicant  provided  a  statement  from
counsel, an offer a of pretrial agreement, copies of  affidavits  from
superior officers, a personal statement,  supportive  statements,  and
other documents associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force,
on 29 Jul 74 and voluntarily ordered to extended active duty on 26 Jun
75.  He was integrated into the Regular Air Force on 18 Dec 78 in  the
grade of lieutenant colonel.  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 Jul 91.

On 19 Jul 94,  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, a married man, did, on  divers  occasions,  between  on  or
about 1 Jun 93 and 12 Jul 94, wrongfully have sexual intercourse  with
L--- S---, a married woman not his wife, who  was  then  the  wife  of
Major J--- I. S---, which conduct was  unbecoming  an  officer  and  a
gentleman; the applicant, the commander of Major J---. I.  S---,  did,
on divers occasions, between on or about 1  Apr  93  and  30  Aug  93,
wrongfully use his command position to arrange meeting with L--- S---,
the wife of Major J---.  I.  S---,  in  furtherance  of  his  improper
relationship with her, which conduct was unbecoming an officer  and  a
gentleman; and he did, on or about 14 Jul 94, with intent to  deceive,
make to Colonel M---O. C--- an official statement that  he  has  never
had sexual relations with L--- S--- at any time, which  statement  was
totally false, and was then known by him to be false.   The  applicant
indicated that  he  desired  to  make  an  oral  presentation  to  the
commander and submitted written comments for review.  On  22  Jul  94,
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  $2222.00  per  month  for  two
months.  However, the amount over $750.00 per month for two months was
suspended until 21 Jan 95.

On 16 Mar 95, the Air Force Personnel Board considered  the  case  and
unanimously determined that the applicant did not serve satisfactorily
in the grade of lieutenant  colonel  (0-5),  and  that  he  should  be
retired in the grade of major (0-4).

On 18 Apr 95, 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 95, the applicant was relieved from active duty in the grade
of lieutenant colonel and retired, effective 1 Jul 95, in the grade of
major.  He was credited with 20  years  and  5  days  of  active  duty
service.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Air  Force  Colonel  Matters  Office,   AFDPOB,   reviewed   this
application and recommended denial.  AFDPOB indicated  that  Title  10
U.S.C. 1370(a)(1) provides that an officer shall "be  retired  in  the
highest grade in which he served on  active  duty  satisfactorily,  as
determined by the Secretary of  the  military  department  concerned."
Air Force Regulation (AFR) 35-7, in effect when the applicant  applied
for retirement, required commanders to  notify  members  applying  for
retirement in lieu of administrative or punitive action that  even  if
retirement is approved they may be retired in a grade lower  than  the
one they are currently serving in, if the Secretary of the  Air  Force
determines their service in the higher  grade  was  not  satisfactory.
The chain of  command  did  not  have  the  authority  to  waive  this
requirement in order to affect a pretrial agreement.

According to AFDPOB, there was no violation of the law  or  procedures
in the establishment of  applicant's  retirement  grade.   Applicant's
retirement application was processed IAW AFR  35-7  and  AFI  36-3203.
AFR 35-7 had been in effect since Oct 1987 (well before the  Blackhawk
incident) and its replacement, AFI 36-3203, since  10  Aug  94.   OGDs
have little to do about accountability  and  everything  to  do  about
whether or not an officer served  satisfactorily  in  the  present  or
higher grade.  Due to receipt of the Article 15, evidence  left  doubt
so an OGD was initiated, as required by AFR  35-7.   AFDPOB  indicated
that they found it interesting that in  the  pretrial  agreement,  the
statement indicating that the applicant would be allowed to retire and
no other punishment would ensue out of this incident was lined through
and initialed by all parties.  Since there was much confusion  in  the
area of how long one must serve satisfactorily in their current grade,
a recent decision by the Air Force Personnel Council has attempted  to
articulate the standards by which such cases are judged.  The Court of
Claims has held that the Secretary has wide discretion to determine if
an officer's service in a particular grade is  satisfactory.   In  the
case of the applicant, the Secretary of the Air Force Personnel  Board
reviewed his retirement request  and  determined  he  had  not  served
satisfactorily in the grade of lieutenant colonel.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, counsel indicated that the applicant’s challenges  to
the grade determination program  as  it  is  now  administered  remain
unchanged.  In his view, the Board does not  have  to  rule  that  the
present grade determination program  was  flawed  in  order  to  grant
relief in this case; it only has to find that an  agreement  was  made
and that the government should be held to its word.

Counsel’s complete response and additional documentary evidence are 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 error or  injustice.   The  evidence  of  record
reflects that, subsequent to the applicant’s  receipt  of  nonjudicial
punishment under Article 15, which he accepted as part of a  pre-trial
agreement, a Secretarial determination was made that he 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 over thirty months.  At the  time  the  officer
grade determination package was initiated, the commander  who  imposed
the nonjudicial punishment recommended he be retired in the  grade  of
lieutenant colonel.  The commander indicated that in an attempt to  be
fair and consistent, he took action he  thought  appropriate  for  the
offenses committed, which included the Article 15 with forfeiture  and
reprimand, the filing of the Article 15 in the  applicant’s  selection
records, the removal of the applicant’s name from  the  CY93A  Central
Colonel Selection Board promotion list, the loss of his flight status,
and the loss of his Aviation Career Incentive Pay.  According  to  the
commander, his intention was that these actions were to bring  closure
to the case.  We believe that, being closer  to  events,  his  opinion
deserve considerable deference in this matter.  As a final matter,  it
appears that the cumulative pecuniary loss resulting from the  Article
15 penalty, loss of promotion to the grade of colonel, loss of  flight
pay, and the applicant’s premature retirement  could  be  $500,000  or
more.  In view of  all  these  considerations,  we  believe  that  the
applicant’s retirement in the grade of  major  was  excessively  harsh
and,  therefore,  unjust.   Accordingly,   we   recommend   that   the
applicant’s records be corrected to reflect the Secretary  found  that
he served satisfactorily in the grade of lieutenant colonel, and  that
retired in that grade.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  The Secretary of  the  Air  Force  found  that  he  served
satisfactorily in the grade of lieutenant colonel within the meaning
of Section 1370(a)(1), Title 10, United States  Code,  and  directed
that he be retired in that grade.

      b.  On 30 June 1995, he was relieved  from  active  duty  and,
effective 1 July 1995, 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 Jul 99, under the provisions of AFI 36-2603:

      Ms. Cathlynn Sparks, Panel Chair
      Dr. Gerald B. Kauvar, Member
      Mr. George Franklin, Member

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

     Exhibit A.  DD Form 149, dated 24 Jun 98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFDPOB, dated 17 Sep 98.
     Exhibit D.  Letter, SAF/MIBR, dated 5 Oct 98.
     Exhibit E.  Letter, counsel, dated 27 Dec 98.




                                   CATHLYNN SPARKS
                                   Panel Chair