RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-02287
                 INDEX CODE 113.01 134.02 131.09
                 COUNSEL:  James R. Klimaski

                 HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The 21  November  1997  order,  modified  on  14  January  1998,
curtailing his Air  National  Guard  (ANG)  Statutory  Tour  Title  10
Program on 1 July 1998 be rescinded.

2.    The 1 April 1996 order extending him on active  duty  until  his
active duty retirement date of 31 October 2002 in  the  ANG  Statutory
Tour, or similar duty in its Air Force Reserve (AFRes) counterpart, be
reinstated effective 2 July 1998.

3.    All references to the incident that led to his curtailment  from
the Statutory Tour be expunged from his records.

4.    He be promoted to the grade of lieutenant colonel (LTC).
_________________________________________________________________

APPLICANT CONTENDS THAT:

The basis for the 21 November 1997 order was  solely  the  applicant’s
marriage to MSgt W---,  also  an  ANG  member.  She  was  not  in  the
applicant’s direct chain of command nor  did  she  work  in  the  same
directorate or state. The Report  of  Investigation  (ROI)  failed  to
consider (1) the advice of Brigadier General (BG)  W---,  then  Deputy
Director, ANG, and Col  E---,  Chaplain,  concerning  the  applicant’s
decision to  marry  MSgt  W---;  (2)  the  confusing  AFI  36-2909  on
Professional  and  Unprofessional  Relationships;  (3)   the   Guard’s
arbitrary and capricious enforcement of the [AFI]; and  (4)  the  fact
that the marriage  has  not  disrupted  the  Guard’s  good  order  and
discipline.

A copy of counsel’s 19-page brief, including  24  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant apparently separated from his  wife  in  February  1995.
During the period  in  question,  he  and  MSgt  W---  were  both  ANG
personnel serving on a Title 10 active duty tour. He had been in  this
status continuously since March 1993.  The  relationship  between  the
applicant and MSgt W--- appears to have begun in November 1995.

On 13 December 1995, LTC I--,  Chief,  Education  &  Training  Branch,
recommended that the applicant be retained on the  statutory  tour  in
his current position for an additional four years,  effective  7 March
1997.

On 9 February 1996, the applicant acknowledged receipt of a Letter  of
Counseling (LOC) from LTC I---. The  letter  states:  “While  personal
relationships  between  military  members  are  normally  matters   of
individual choice  and  judgment,  they  become  matters  of  official
concern when they prejudice  the  good  order  and  discipline  of  an
organization. As such, your personal  relationship  with  an  enlisted
female  member  of  this  branch  violates  the  customary  bounds  of
acceptable behavior and  professional  conduct.  In  spite  of  verbal
counselings, this  unprofessional  relationship  has  continued.  This
letter serves as an official counseling and reminder that, as a  field
grade officer, you are expected to maintain the highest  standards  of
professional conduct and to lead by example. Failure to adhere to  Air
Force policies will result in immediate administrative action.”

Special Order AA-261, dated 1 April  1996,  extended  the  applicant’s
statutory tour until 31 October 2002 unless sooner relieved.

The AFI 36-2909 became effective 1 May 1996.

On 31 July 1996, the applicant signed an order from LTC  C---,  Deputy
Director of Training, ANG, which stated: “You are  hereby  ordered  to
comply with the Air  Fore  policy  on  Professional  Relationships  as
established in AFI 36-2909. You will terminate any  relationships  you
may have in violation of  that  policy.  This  order  applies  to  any
relationship you may have at ANG/MPT, ANGRC, Andrews Air  Force  Base,
or  anywhere  else.   You  are  further  ordered  to   terminate   any
relationship that may constitute adultery in violation of Article  134
of the Uniform Code of Military Justice. You will conduct yourself  in
a professional manner to avoid the  appearance  of  any  relationships
that might be prejudicial to Good Order and Discipline.”

That same day the applicant signed a statement: “I hereby  acknowledge
that I have received a copy of the Air Force  policy  on  Professional
Relationships, AFI 36-2909 and that I have read and understand  it.  I
understand that it applies to me as  a  member  of  the  Air  National
Guard.  I  also  understand  that  it  may  be  enforced   by   either
administrative action  or  Military  Justice  action  since  I  am  on
statutory tour.”

The applicant and his wife’s divorce became  final  in  February 1997.
The applicant and MSgt W--- got married on 27 June 1997.

An  investigation  by  Col  H---,  investigation  officer  (IO),   ANG
Readiness Center, was conducted from 22 July 1997 to  5  August  1997.
Transcripts of 18 witnesses’ recorded testimonies  are  included  with
the 5 August 1997 ROI. The following information  was  extracted  from
the ROI:

       --- Between  13  November  1996  and  15   January   1997,   an
investigation was conducted by the Office of  the  Inspector  General,
National Guard Bureau (NGB-IG), into anonymous  allegations  that  the
applicant was continuing an adulterous relationship  with  MSgt  W---.
The inquiry found that the applicant had  engaged  in  fraternization,
adultery, conduct unbecoming an officer, and failure to obey a  lawful
order, all as a result  of  his  relationship  with  MSgt  W---.  That
investigation concluded  the  relationship  had  not  continued  after
31 July 1996. On 28 July 1997 the applicant  was  notified  by  E-mail
that  the  investigation  was  closed.  BG  W---   advised   him   the
investigation was closed on 9 June 1997. That evening,  the  applicant
asked MSgt W--- to marry him.

      --- On 16 June 1997, the applicant informed BG W--- that he  had
proposed to MSgt W--- and asked the general whether he would be fired.
The applicant testified BG W--- said he would not lose his job  if  he
married;  BG  W---  testified  he  said  that  because  the  applicant
threatened suicide if he did lose his job. Chaplain E--- contacted the
applicant on 17 June 1997 at BG W---’s request. Coworkers subsequently
reported that the applicant and MSgt W--- had married on 27 June 1997.
BG  W---  requested  an  investigation  into  the  allegations  of  an
unprofessional relationship between the applicant and MSgt W---.

      --- The subjects, who were advised of  and  subsequently  waived
their rights under Article 31 of the UCMJ, admitted  to  the  IO  they
were ordered to cease their unprofessional  relationship  by  superior
officers in their chain of command, including  LTC  I---’s  LOC  on  9
February 1996, an oral order by Col  Bronson  in  March  1996,  and  a
written order from LTC C--- on 31 July 1996.  After 31 July 1996,  the
[then] current supervisor of the applicant, Col D---,  orally  advised
the applicant that it would be wrong to have a relationship with  MSgt
W---  and  the  applicant  repeatedly  advised  him   that   no   such
relationship existed. In a 16 June 1997 meeting the applicant  assured
BG W--- that he had not had any contact with  MSgt  W---  since  being
ordered to stop the relationship in 1996. This was not true, as he had
made  telephone  calls  to  her  after  being  ordered  to  stop   the
relationship.  MSgt W--- had complained to her supervisors about these
calls. Two days after the meeting with BG W---, the  applicant  called
the general at home, saying he planned to marry MSgt  W---  after  she
left active duty and asked if he would lose his job if he married her.
The applicant repeatedly threatened to commit suicide if he  lost  his
Guard position and the general assured him he would not lose  his  job
at the very outset of the conversation. The applicant then related  he
had asked MSgt W--- to quit her job so that she would  be  a  civilian
prior to marriage. The applicant had also told Col D--- in  June  1997
of his intention to ask MSgt W--- to marry him. Col D--- had responded
that one of them would have to get off tour,  meaning  leave  the  ANG
first.  In his interview with  the  IO,  Col  D---  related  that  the
applicant  knew  what  he  meant.  When  interviewed,  the   applicant
accurately related what Col D--- had said but stated he  believed  the
colonel meant one of them would have to leave  the  Guard  after  they
were  married.  MSgt  W---  indicated  she  believed  the  applicant’s
representations in  June  1997  that  BG  W---  had  sanctioned  their
marriage and attempted  to  verify  these  representations  through  a
chaplain.

      --- Interviews with supervisors of MSgt W--- indicated that good
order and discipline  were  affected  by  the  initial  unprofessional
relationship which occurred from November 1995 to  the  end  of  March
1996. Interviews with Col L---, 201  Mission  Support  Squadron  (MSS)
Commander,  and  MSgt A---,  1st  Sergeant,  201  MSS,  indicated  the
subsequent marriage also affected good order and discipline.

      --- Interviews with a cross  section  of  ANG  Readiness  Center
staff members made it apparent  that  AFI  36-2909  greatly  clarified
their responsibilities  in  regard  to  unprofessional  relationships.
Those who attended Commanders Calls in  which  BG W---  addressed  the
issues raised in that AFI were more certain of  this  than  those  who
were absent.

      --- Nearly all  personnel  in  the  Readiness  Center  who  were
interviewed believed fraternization and resulting officer and enlisted
marriages are openly tolerated among  the  traditional  Guard  in  the
States and not allowed once one is in a Title 10 status. However,  all
of the personnel holding this view came to work in Title 10 status  at
the Readiness Center prior to the publication and dissemination of AFI
36-2909 to the traditional Guard in the States and they  may  well  be
unaware of the efforts of commanders in State units to eliminate  this
disparity, assuming one exists.

      --- Chaplain E--- was not  interviewed  in  the  course  of  the
investigation because the subjects had shared confidential information
with  him  which,  if  included  in  the  ROI,  might  jeopardize   or
contaminate possible action under the UCMJ.

      --- The issue of adultery was not relevant to this investigation
since it was dealt with in the prior IG investigation and there was no
evidence of sexual activity occurring after the  orders  to  cease  in
March 1996 until after the applicant was in fact divorced.

      --- Conclusions:  The evidence established the subjects  engaged
in a dating  and  sexual  relationship  and  married;  their  superior
officers acted to halt this relationship when  it  affected  the  good
order and discipline in the unit; the applicant violated Article  134,
UCMJ, Conduct Unbecoming an Officer, and AFI 36-2909 by engaging in an
unprofessional relationship with an enlisted member pursued on and off
duty which detracted from the authority of his  superior  and  created
the appearance of the abandonment of organizational goals for personal
interests; and MSgt W--- violated Article 92, UCMJ, Failing to Obey  a
Lawful  Order,  and  AFI  36-2909  by  maintaining  an  unprofessional
relationship with an officer and marrying the officer.

      --- Recommendations: Command should consider  early  termination
of the applicant’s Title 10 tour and  disciplinary  action  under  the
UCMJ.  MSgt  W---  should  be  verbally  counseled  on  unprofessional
relationships.

On 20 August 1997, the 5 August 1997 ROI was found legally sufficient.

By Special Order AA-118, dated 21 November  1997,  the  applicant  was
involuntarily released from serving on voluntary active duty per Title
10, USC, effective 20 February 1998. In the 21 November 1997 Notice of
Curtailment signed by MG S---, the ANG  Director,  the  applicant  was
advised  that  the  curtailment  of  his  tour  was  due  to  behavior
unbecoming an officer and failure to obey a direct order.  The  Notice
referenced the 9 February 1996 LOC and the 31 July 1996  direct  order
to comply with AFI 36-2909.  However, another memo and  Special  Order
AA-189, both dated 14 January 1998 and signed by MG S---, extended the
applicant’s date of separation (DOS) to 1 July 1998.

The applicant is currently  serving  in  the  grade  of  major  as  an
Individual Mobilization Augmentee (IMA),  assigned  as  the  Assistant
Executive Officer to  the  Director,  Defense  Logistics  Agency,  Ft.
Belvoir, VA.

_________________________________________________________________

AIR FORCE EVALUATION:

The Director, Personnel & Training,  ANG/DP,  states  the  applicant’s
behavior over an extended period  of  time,  notwithstanding  numerous
warnings and considerable forbearance, resulted in prejudice  to  good
order, discipline, and morale through violation of  the  standards  of
AFI 36-2909.  The basis of the curtailing order  was  the  applicant’s
conduct unbecoming an officer and failure  to  obey  a  direct  order,
i.e., the February 1996 LOC signed by his supervisor and the July 1996
written order by LTC C---. The ROI found no evidence that advice given
to the applicant  by  BG  W---  and  Chaplain  E---  was  intended  to
supersede the July 1996 direct order for the  applicant  to  terminate
his relationship with MSgt W---. BG  W---  testified  that,  during  a
phone call in which the applicant threatened to commit suicide  if  he
were fired, he told the applicant he would not be fired  in  order  to
calm him and prevent a suicide.  In July 1996 the applicant  signed  a
statement acknowledging that he had received, read, and would abide by
the AFI. As to the applicant’s argument that the  Guard’s  enforcement
of  the  AFI  is  arbitrary  and  capricious,  there  is  insufficient
information about other relationships to determine whether  they  were
similarly prejudicial to good order and discipline.  The author opines
that the applicant’s relationship  with  MSgt  W---  violated  morale,
discipline,  unit  cohesion,  respect  for   authority   and   mission
accomplishment.  Denial is recommended.

A copy of the complete Air Force evaluation,  with  attachment  is  at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the evaluation and provides a 19-page  rebuttal  with
16 exhibits, most of which are supporting statements. Counsel  asserts
the applicant did obey the February LOC and  LTC  C---’s  questionable
July order, the latter constituting little more than harassment. LTC C-
--’s order may not even be valid because he was not in the applicant’s
chain of command or in a command position at the time  of  the  order.
BG W---’s assertion that he promised no retribution if  the  applicant
married MSgt W--- in  order  to  prevent  the  applicant’s  threatened
suicide is contrived.  This  is  an  after-the-fact  explanation;  the
general did  not  communicate  the  threat  with  anyone.   The  ANG’s
enforcement of the fraternization rule  is  confusing,  arbitrary  and
capricious.   Counsel  provides  a  list  of  ANG  members   who   had
relationships and/or  married  before,  during  and  after  the  AFI’s
issuance without any penalty. The applicant’s marriage to  MSgt   W---
had no adverse impact on the Guard’s mission;  attached  letters  from
ANG  personnel  confirm  the  “disruption”  claim  is  spurious.   The
applicant was open and honest with his superiors and did not  make  or
take any action without their endorsement and approval.   He  believed
in his chain of command, asked for and received permission,  and  then
was unjustly and unfairly terminated from his Title 10 Statutory  Tour
position. Counsel asks that the applicant be  granted  the  originally
requested relief and promotion to LTC.

A copy of the complete rebuttal, with attachments, 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.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice to warrant rescinding the
21 November 1997 curtailing  order.  The  applicant  and  his  counsel
contend, in part, that the statutory tour was curtailed solely on  the
basis of the applicant and MSgt W---’ marriage. However, they have not
provided convincing evidence to support their assertions. Was the  ANG
Director’s decision to curtail the applicant’s Title 10 tour arbitrary
and capricious?  After an exhaustive review of the available evidence,
we do not believe  so.   We  note  the  21  November  1997  Notice  of
Curtailment signed by MG S---  states  that  the  curtailment  was  “a
result of a pattern of behavior unbecoming an officer and  failure  to
obey a direct order.”  It referenced the 9 February 1996 LOC  and  the
31 July 1996 direct order to comply with  AFI  36-2909,  dated  1  May
1996. On 31 July 1996, the applicant signed a statement  acknowledging
that he had received, read and would abide by AFI 36-2909.   Paragraph
5.1.3.1. of the  Instruction  states  that  “. . . the  fact  than  an
officer is married to an enlisted member is not, by  itself,  evidence
of misconduct. When evidence of fraternization  exists,  however,  the
fact that the officer and enlisted member subsequently marry does  not
preclude   appropriate   command   action   based   on    the    prior
fraternization.” Further, Paragraph  8  indicates  that  relationships
which have had an adverse impact  on  the  Air  Force  should  not  be
excused simply because the members subsequently marry or one  of  them
leaves the service. The Instruction also stipulates  that  “commanders
and supervisors at all levels have the authority and responsibility to
maintain good order, discipline and morale  within  their  units”  and
that they may be held accountable for failing to  act  in  appropriate
cases.  The commander in this case had  to  make  a  judgement  as  to
whether  good  order  and  discipline  had  been  disrupted   by   the
applicant’s actions. His decision to curtail the applicant’s  tour  is
sustained by evidence that disruption occurred.  The  details  of  the
other  relationships  discussed  or  referred  to  in  the   available
documentation are not known to this Board,  nor  are  they  under  our
consideration. The pertinent  Instruction  indicates  that  corrective
action in different  cases  need  not  be  identical,  but  should  be
measured in terms of the nature of the violation and the  severity  of
its impact on morale, discipline, and unit cohesion. While  there  may
have been differing  perceptions  with  regard  to  the  Instruction’s
application towards traditional Guard members and members on Title  10
tours, this does do  not  overcome  the  commander’s  actions  in  the
instant appeal. In the final analysis, we are not persuaded  that  the
commander exceeded his discretionary authority  or  acted  arbitrarily
and capriciously when he rescinded the applicant’s statutory tour.  We
believe the commander was in  the  best  position  to  determine  what
action was necessary and the available documentation does not  provide
a basis  to  usurp  his  decision.  Inasmuch  as  we  have  found  the
curtailing order within the  commander’s  authority,  the  applicant’s
other requests are rendered moot. We therefore conclude that the  case
should be denied in its entirety.

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 legal 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 26 October 1999, under the provisions of AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Panel Chair
                  Mr. Joseph A. Roj, Member
                  Ms. Dorothy P. Loeb, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 14 Aug 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ANG/DP, dated 9 Mar 99, w/atch.
   Exhibit D.  Letter, AFBCMR, dated 29 Mar 99.
   Exhibit E.  Letter, Counsel, dated 25 May 99, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair