RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-01638
            INDEX NUMBER:  136.01


            COUNSEL:  JOSEPH W. KASTL


            HEARING DESIRED:  YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Grade Determination Act (OGDA) decision, dated 28 April
1997, be set aside and he be retired in the grade of colonel.

___________________________________________________________________

APPLICANT CONTENDS THAT:

While stationed at xxxx AFB, he  did  something  for  which  he  is
ashamed.  He took a suitcase from the AAFES store  on  base,  which
cost $169.95.  He substituted one price tag for another, approached
the cash register, and paid the lower price.   For  this  lapse  in
judgment, he received an Article 15.  The punishment  consisted  of
forfeiture of $2,400 per month for two months and a reprimand.

To  this  day,  he  has  no  explanation  for  his  behavior.    He
immediately conceded his guilt.  He apologized profusely, noted his
otherwise model career, and explained that  he  had  no  idea  what
caused him to breach Air Force standards.  Without making  excuses,
he cited  several  major  stresses  impacting  his  life.   He  had
numerous counseling sessions with three experts  --  the  Chief  of
Mental Health, a  civilian  psychologist,  and  his  minister.   He
continued to accept full responsibility.  Without rationalizing, he
was under intense stress and hardship.  Cumulatively, all of  these
problems created a situation  where  he  failed  to  think  or  act
properly.

Following the incident, he was removed from his position.  His next
two officer performance reports (OPRs) are crucial to an evenhanded
evaluation of whether he successfully served in the grade  of  O-6.
The report  closing  May  1996,  addressed  the  incident  and  his
judgment and decisions were questioned.   At  the  same  time,  the
report describes him as highly regarded, and he is praised for  his
solid contributions.  The follow-on OPR relates that he once  again
“meets standards”  in  all  categories,  and  is  praised  for  his
“spectacular professionalism.”

The standard of review for an OGD  is  whether  the  member  served
honorably in the rank in question.  He acted honorably in every way
related to his mistake.  There are seven (eight are  listed)  major
reasons supporting this assertion.  (1)  He  made  one  mistake  in
20 years.  (2) He soldiered on and performed to an absolutely  top-
notch standard.  (3)  The  event  happened  16  months  before  his
retirement.  (4) The loss of pay is too high to be  fair.   (5)  He
has paid too much for his mistake.  (6) He was publicly humiliated.
 (7) He  never  whined  or  complained.   (8)  Numerous  impressive
individuals support him.

After a superb 20-year career, the OGD decision should be set aside
and he should be retired in the grade of colonel.  He  had  a  one-
time lapse in an otherwise unblemished career.   That  one  mistake
should not destroy his “Colonelcy” and cost him  over  $185,000  in
retired pay.  He won the right to wear the eagles of an O-6.

Three basic  reasons  establish  that  it  was  wrong  to  withhold
retirement in  the  grade  of  colonel:   His  long  and  honorable
service; the overall OGD practice vis-à-vis due  process;  and  the
application of the OGD here, in comparison with other cases.

Counsel’s complete submission, with attachment, is at Exhibit A.
___________________________________________________________________

STATEMENT OF FACTS:

On 23 May 1977, the applicant was appointed  a  second  lieutenant,
Reserve of the Air Force, and was voluntarily ordered  to  extended
active duty on 17 July 1977.  He was progressively promoted to  the
grade of colonel, with a date of rank of 17 July 1994.

The applicant’s OPRs, except for the report closing 2 May 1996, all
reflect ratings of “meets standards.”

On 12 January 1996, the applicant’s commander initiated Article  15
proceedings against him for, on or about 6 October 1995, stealing a
28-inch black Samsonite suitcase, of a value of about $169.95,  the
property of the  Army  Air  Force  Exchange  Service  (AAFES).   On
6 February  1996,   the   applicant   accepted   punishment   under
Article 15.  Punishment consisted of forfeiture of $2,400 per month
for two months and a reprimand.  The Article 15 was also  filed  in
his officer selection record (OSR).

The applicant initially applied for retirement on 2 December  1996,
to be effective 1 August 1997.  On 16 December 1996, the commander,
xxxx MDG/SG, notified him that he was initiating an OGD due to  his
impending retirement.  He recommended that the applicant be allowed
to retire in the grade  of  colonel.   The  applicant  submitted  a
response to the action on 17 December 1996.  The  OGD  package  was
initiated  based  on  a  misunderstanding  about  the   applicant’s
assignment to  the  xxx  MDG  immediately  after  the  theft.   The
previous AFIA/CC assigned the  applicant  to  the  xxxx  MDG  on  a
temporary duty status.  Therefore, the  xxxx  MDG/SG  was  not  the
applicant’s commander  and  his  16 December  1996  letter  to  the
applicant was without authority.  However, the recommendation could
still be considered in the OGD.

On 3 February 1997, the applicant applied  for  retirement,  to  be
effective 1 August 1997.   On  14  February  1997,  the  commander,
AFIA/CC, notified him that he was  initiating  an  OGD  because  he
received  punishment  under  Article  15,  within  two   years   of
retirement.  The applicant submitted a response to  the  action  on
17 February 1997.

On 28 February 1997, the Major  Command  Judge  Advocate,  AFIA/JA,
found  the  OGD   package   legally   sufficient   to   support   a
recommendation that the  applicant  be  retired  in  the  grade  of
lieutenant colonel.  The applicant submitted a further response  to
the action on 3 March 1997.

On 28 March 1997, the  commander,  AFIA/CC,  recommended  that  the
applicant be retired in  the  grade  of  lieutenant  colonel.   The
commander considered several elements, to include the nature of the
misconduct, the impact of the misconduct on military effectiveness,
the quality and length of service in the highest  grade,  potential
mitigating factors, and  the  history  of  other  OGD  cases.   The
commander evaluated the applicant’s short  time  in  service  as  a
colonel and weighed it against the  misconduct  and  other  factors
mentioned above.  In his view, this decision represented  the  best
outcome between maintaining the high standards of  the  profession,
the purpose of the OGD statute, and a sense of equity and  fairness
to those who have served satisfactorily in the grade of colonel and
enjoy retired status as a colonel.

On 11 April 1997, the Inspector General  agreed  with  AFIA/CC  and
AFIA/JA and recommended to the Secretary of the Air Force Personnel
Council that the applicant be retired in the  grade  of  lieutenant
colonel.

On 25 April 1997, the Air  Force  Personnel  Board  considered  the
case.   Having  given  full  weight  to   the   applicant’s   ample
achievements and contributions as a colonel, both before and  after
the  incident  of  misconduct,  the  Board  recommended  that   the
applicant be retired in the grade of lieutenant colonel.

On 28 April 1997, the Secretary of the Air Force Personnel  Council
determined that the applicant did not serve satisfactorily  in  the
higher grade of colonel and recommended that he be retired  in  the
grade of lieutenant colonel.

On 28 April 1997, the Director, Air  Force  Review  Boards  Agency,
advised that the Secretary found that the applicant did  not  serve
satisfactorily in  the  higher  grade  of  colonel.   However,  the
Secretary found that the applicant did serve satisfactorily in  the
rank of lieutenant colonel, and directed that he be retired in that
grade.  The Secretary further  determined  that  the  applicant  is
required to reimburse the United States Government for any unearned
portions of bonuses.

The applicant was subsequently retired in the grade  of  lieutenant
colonel by reason  of  “Sufficient  Service  for  Retirement.”   He
served 20 years and 14 days on active duty.

___________________________________________________________________

AIR FORCE EVALUATION:

The  Air  Force  Colonel  Matters  Office,  AFCMOB,  reviewed  this
application and recommended denial.  They agreed with the Secretary
of the Air Force Personnel Council decision that the applicant  did
not serve satisfactorily in the grade of colonel.  Criminal conduct
such as theft of property sends a strong  signal  that  the  member
failed to perform satisfactorily in the higher grade.  The complete
evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the evaluation was forwarded to counsel on 4 August 2000,
for review and response within 30 days (D).   Counsel  stated  that
they adhere to their original position, and there is nothing in the
advisory opinion  that  should  legitimately  take  away  from  the
strength of their original arguments (Exhibit E).

A copy of the OGD accomplished by the Secretary of  the  Air  Force
Personnel Council was forwarded to counsel on  28  September  2000,
for review and response within  30  days  (Exhibit  F).   Counsel’s
response, with attachment, is at Exhibit G.

___________________________________________________________________

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.   We
thoroughly reviewed the applicant's complete submission in  judging
the merits of the case;  however,  given  the  seriousness  of  the
applicant’s misconduct and the short period of time he served as  a
colonel, the Board does not find  that  the  findings  of  the  OGD
constitute  an  injustice.   Therefore,  based  on  the   available
evidence of record, we  find  no  basis  upon  which  to  favorably
consider this application.

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  issue   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;
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 9  November  2000,  under  the  provisions  of
AFI 36-2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Mr. George Binks, Member
                 Mr. Jackson A. Hauslein, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Jun 2000, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFCMOB, dated 14 Jul 2000.
    Exhibit D.  Letter, SAF/MIBR, dated 4 Aug 2000.
    Exhibit E.  Letter, Counsel, dated 8 Sep 2000.
    Exhibit F.  Letter, AFBCMR, dated 28 Sep 2000, w/atchs.
    Exhibit G.  Letter, Counsel, dated 22 Oct 2000, w/atch.





                                   RICHARD A. PETERSON
                                   Panel Chair