RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBERS:  01-00377
      INDEX CODES 105.01  129.04  136.00
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His dismissal on 15 Nov 99 be set aside and he be allowed to retire on
that date in the grade of lieutenant colonel (LTC).

_________________________________________________________________

APPLICANT CONTENDS THAT:

There were several  very  significant  errors  in  his  officer  grade
determination (OGD) package. Legal staffs communicated with each other
behind  the  scenes  and  legal  experts  maligned  his  character  to
commanders who did not know him. Once an OGD recommendation  leaves  a
base, it is very hard to change that recommendation up the chain.   He
acknowledged that what he did was wrong.  However,  his  behavior  was
not prejudicial to good order and discipline nor did it result in  any
form of favoritism or partiality. He believes the vigor with which  he
was prosecuted may have  been  due  to  the  era  of  “accountability”
established by the then Chief of Staff and to racial prejudice. He was
a very successful Hispanic male in a  predominantly  white  community,
the charges involved two white women, and the  panel  members  at  his
trial were white.  The Air  Force  went  overboard  following  several
military  public  spectacles  and  he  became  a  victim  of   extreme
prosecution.  The prosecution, punishment, confinement and humiliation
he suffered far outweigh the significance of his  offense.  He  should
not have been subjected to a court martial at all.  Had the Air  Force
followed existing guidance in current regulations, many of which  have
been  updated  to  clarify  appropriate  procedures   for   cases   of
fraternization and adultery, he  would  have  received  some  form  of
administrative punishment for his actions.  Before the  investigation,
he was well-respected  and  had  an  outstanding  record  of  military
service as an enlisted member and an officer.  Further, had he applied
for retirement any time before Apr 96, it  would  have  been  approved
because he was eligible under the early retirement programs in effect.
 He spent his entire life serving the Air Force and should be  retired
in the grade of LTC.

The applicant’s complete submission, which includes a 7-page statement
and 10 attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

In the fall of 1992, Congress enacted legislation and the Secretary of
Defense approved the use of provisions  to  retire  members  from  the
active military  with  as  few  as  15  years  of  creditable  service
(Temporary  Early  Retirement  Authority  or  TERA).  This   temporary
legislation was a force shaping drawdown tool and not an  entitlement.
According to MPFL 95-26 dated 19 Apr 95 (Exhibit A), the  Fiscal  Year
1996 Voluntary Early Retirement Program application period began 1 May
95; retirement effective dates for officers could be no earlier than 1
Oct 95. According to MPFM 96-41, dated 14  Jun  96  (Exhibit  D),  the
requested retirement date could be no earlier than 1  Oct  96  and  no
later  than  1  Sep  97.  Members  under  investigation   or   pending
involuntary separation action, court-martial/civil  charges/procedures
and appellate leave or  dismissal  were  to  be  excluded  from  early
retirement eligibility consideration. Members with approved or pending
early retirement who were placed under investigation, etc., were to be
identified and coded for cancellation of early retirement. If the code
were later cleared, the early retirement could be reinstated.
                                  ________

The following information was extracted from the applicant’s  military
personnel records, the Article 32 Report of Investigation  (ROI),  the
Record of Trial (ROT), available OGD documents, the Air Force Court of
Criminal  Appeals  (AFCCA)  review,  etc.,  which  are   provided   at
Exhibit B.

The applicant  had  prior  enlisted  service  with  the  Nebraska  Air
National Guard (ANG). He was commissioned  as  a  2nd  lieutenant  and
entered active duty on 25 Aug 78.  He was ultimately promoted  to  the
grade of LTC effective 1 Sep 94.

During the period in question, he was stationed at McConnell AFB,  KS,
first as the base comptroller of the 22nd Air Refueling  Wing  (22ARW)
from 1 Jan 94-31 Dec 95, and then as the Comptroller Flight  Commander
from 1 Jan 96-2 May 96.

The 22ARW Judge Advocate disseminated a memo dated 8  Aug  95  to  all
commanders and first sergeants regarding unprofessional  relationships
and fraternization and which included a talking paper on this subject.


Between Oct 95 and Jan 96, the applicant and a senior airman  (SRA H),
a defense  paralegal,  allegedly  had  a  romantic  relationship  that
included dancing and drinking at the combined officers/noncommissioned
officers club and local nightclubs, visiting each other’s  apartments,
kissing, and engaging in sexual intercourse.

After SRA H departed for her new assignment in Jan 96,  the  applicant
allegedly began a relationship with SRA D, whom he knew  from  singing
in the chapel choir and from attending aerobics classes.  In  Feb  96,
they both attended a medical unit-sponsored party, during  which  they
danced closely together. SRA D allegedly started kissing the applicant
on the neck and engaged in  mutual  open-mouthed  kissing.  They  also
danced at the “combined” military club and  off-base  nightclubs.   At
the end of Feb 96, they had a two-hour personal  conversation  in  the
applicant’s van, outside the SRA’s dormitory, in view of other  airmen
entering/leaving the dormitory.

On 29 Apr 96, the McConnell AFB Staff Judge Advocate requested the  AF
Office of Special Investigations (AFOSI) investigate the applicant for
alleged affairs.  Apparently, SRA H had told both her girlfriend  (SRA
S) and her ex-boyfriend (Capt  L)  about  her  relationship  with  the
applicant. [Pursuant to a request from the  AFBCMR  Staff,  the  AFOSI
confirmed that an OSI investigation on the  applicant  was  conducted;
however, the file could not be located. Statements taken by OSI agents
that were included with the Art. 32 ROI and as Exhibits with  the  ROT
are provided at Exhibit B.]

On 2 May 96, the applicant was removed from his position and  assigned
to the wing commander as a special assistant.

On 25 Sep 96, the applicant was  charged  with  misconduct.  Charge  1
included two specifications of fraternization and one specification of
adultery; Charge 2 included two specifications of  conduct  unbecoming
an officer and a gentleman.  A copy of the complete  original  Charges
and their Specifications are provided at Exhibit B.

On 25 Sep 96, the 22ARW commander appointed an  investigating  officer
(IO) to conduct an Article 32 investigation  of  charges  against  the
applicant.  In his 28 Sep 96 ROI,  the  IO  noted  the  actions  taken
against others involved in the case: Capt  L  (SRA  H’s  ex-boyfriend)
received an Article 15; SRA  D  received  a  Letter  of  Reprimand,  a
cancelled assignment and delayed promotion to staff sergeant; and  SRA
H received an Article 15. The  IO  recommended  court-martial,  rather
than administrative action or non-judicial punishment, in view of  the
actions taken against the other parties and because  he  believed  the
evidence  and  the  credibility  issue  required   a   court-martial’s
impartial  review.  The  IO   recommended   that   all   Charges   and
Specifications be referred  to  a  general  court-martial  except  for
Charge 1, Specification 2, which pertained to the applicant’s  conduct
with SRA D.  The IO recommended  its  dismissal  because  of  lack  of
reasonable grounds  to  conclude  the  applicant  violated  the  then-
existing customs for behavior of Air Force officers at McConnell  AFB.
However, all Charges and  Specifications  were  referred  for  general
court-martial.

On 4 Oct 96, the 15th Air Force (15AF) Judge Advocate  recommended  to
the 15AF commander (the convening authority)  that,  contrary  to  the
Article 32 IO’s conclusions, all Charges and Specifications should  be
referred to  trial  by  general  court-martial.   The  15AF  commander
concurred that same day.

In a 26 Nov 96 memo to the 22ARW commander,  the  applicant  requested
retirement  in  lieu  of  court-martial.  At   this   time,   he   had
approximately 18 years and 7 months of active duty.  On 30 Nov 96, the
15AF commander advised the applicant he would not recommend retirement
and returned the application without action until  completion  of  the
court-martial.

On 5 Dec 96, a general court-martial found the applicant guilty of two
amended  specifications  of  fraternization,  one   specification   of
adultery, and two amended  specifications  of  conduct  unbecoming  an
officer.  The applicant  had  pled  not  guilty  to  all  Charges  and
Specifications. He was sentenced to confinement for three  months  and
dismissal.  The  ROT  transcript  and  the  summary  of  the  Charges,
Specifications, Pleas and Findings are at Exhibit B.

On 16 Dec 96, the 15AF commander waived the automatic  forfeitures  of
pay and allowances applicable in this  case  for  a  period  of  three
months and directed that the entire  amount  waived  be  paid  to  the
applicant’s wife.

On 17 Jan 97, the 15AF Judge  Advocate  found  the  sentence  adjudged
appropriate for  the  offenses  committed  and  recommended  that  the
sentence be approved.

On 28 Jan 97, the Officer Performance Report (OPR) for  the  period  1
Jan 96-5 Dec 96 was referred to the applicant.  He  was  marked  “Does
Not Meet Standards” in the following Performance  Factors:  Leadership
Skills, Professional Qualities, and Judgement & Decisions.  The  rater
also  commented  on  the  applicant’s  court-martial  conviction   for
fraternization, adultery  and  conduct  unbecoming  an  officer.   The
additional rater concurred and noted that comments were  not  received
from the ratee within the required period.

On 21 Feb 97, the applicant submitted a clemency package to  the  15AF
commander, asking that the dismissal be changed to a fine  of  between
$5,000-10,000.  The 15AF commander  declined  to  grant  clemency  and
approved the sentence as adjudged on 5 Mar 97.

On 11 Feb 99, the Air Force Court of Criminal Appeals (AFCCA) reviewed
the applicant’s  appeal,  modified  the  findings,  but  affirmed  the
sentence adjudged. According to their opinion, the applicant  asserted
that the military judge erred in failing to grant a  discovery  motion
and  in  instructing  the  court  members.   He  also  raised   issues
concerning his sentence and the argument by the prosecutor.  Regarding
the discovery issue, in an order  dated  24  Jun  98,  the  AFCCA  had
faulted the military judge for failing to review materials  in  camera
which may have indicated SRA  H  was  not  credible.   The  AFCCA  had
obtained and reviewed the material and noted  that,  contrary  to  the
applicant’s  expectations,  the  inquiry   officer’s   findings   were
“inclusive,” not that SRA H was not credible.  The AFCCA did not  find
error, or anything more than harmless error, in the  military  judge’s
instructions.  The  sentence  was  found  appropriate;  however,   the
automatic pay and allowances  forfeitures  that  were  collected  were
improper and would be restored. This was because the AFCCA  could  not
conclude with any certainty that the applicant  had  fraternized  with
SRA D after 1 Apr 96. According to Article 58b  of  the  UCMJ,  if  at
least one of the offenses an accused was convicted by  general  court-
martial of committing occurred on or after 1 Apr 96, and the  sentence
included a punitive  discharge  and  confinement,  the  accused  would
automatically forfeit all pay and allowances during  confinement.  The
AFCCA  further  noted  that  an  accused  cannot   be   convicted   of
fraternization under Article 134 and  conduct  unbecoming  an  officer
under  Article  133  for  the  same  underlying  conduct.  Where   the
misconduct  alleged  in   the   specifications   is   identical,   the
fraternization offense is dismissed. Since the fraternization  offense
with SRA D alleged more specific  acts  of  misconduct  than  did  the
conduct unbecoming an officer offense, the AFCCA set aside the conduct
unbecoming an officer offense.

As  a  result  of  the  AFCCA  review,  the  findings  of  guilty   of
specification  1  of  Charge  I  (fraternization  with  SRA   H)   and
specification 2 of Charge II (conduct unbecoming and officer with  SRA
D) were set aside and dismissed,  all  forfeitures  already  collected
were to be restored, and the sentence was affirmed.

On 22 May 99, the applicant applied for retirement.  At this time,  he
had approximately 21 years of active duty.

On 24 May 99, the commander, 22nd Comptroller Flight (of  the  22ARW),
advised the applicant that, as a result of his general  court-martial,
an officer grade determination, as required by Title 10, USC,  Section
1370, would be made by the  Secretary  of  the  Air  Force  (SAF),  or
designee. On 24 May 99, the applicant submitted a written presentation
for consideration.  On 30 May 99, he submitted a  letter  to  the  Air
Force Personnel Board requesting that he be allowed to retire  in  the
grade of LTC.

On 8 Jun 99, the 22nd Comptroller Flight commander recommended to  the
22ARW commander that the applicant be retired in  the  grade  of  LTC,
believing he had been sufficiently punished for his actions. On 14 Jun
99, the 22ARW Staff Judge Advocate recommended to the 22ARW  commander
that the applicant not be allowed to retire and, if he were allowed to
retire, it should be in the rank of major. By first indorsement to the
8 Jun 99 letter,  the  22ARW  commander  nonconcurred  with  the  22nd
Comptroller   Flight   commander’s   recommendation   and,    instead,
recommended to HQ Air Mobility Command (AMC)  that  the  applicant  be
dismissed from the Air Force, citing what he believed were aggravating
circumstances that justified the adjudged dismissal.

On 14 and 16 Jul 99, the applicant submitted rebuttal letters  to  the
22ARW commander and HQ AMC, respectively.  On 26 Jul 99,  the  HQ  AMC
Office of the Staff Judge Advocate recommended  that  the  applicant’s
dismissal should stand or, in the alternative,  he  be  retired  as  a
major.

On 11 Aug 99, the AMC vice commander recommended that the SAF  execute
the  court-martial  sentence  of  dismissal  and,  if  not,  that  the
applicant not be allowed to retire in  the  grade  of  LTC.  The  vice
commander indicated that the applicant served less than three years as
a LTC and his misconduct spanned for more than half that time.

[An unsigned 10 Sep 99 decisional memo from the SAF Personnel Board to
the Director  of  the  Review  Boards  Agency  recommending  that  the
applicant’s request for retirement be denied and he  be  dismissed  as
adjudged is provided by the applicant at Atch 2 of Exhibit  A.   On  6
Aug 01, the SAF Personnel Board Staff advised the  AFBCMR  Staff  that
the file containing their decisional memo was no longer available.] On
13 Sep 99, the SAF Personnel Board recommended that the  applicant  be
dismissed from the service, but that if he was allowed to  retire,  it
be in the grade of major. On 19 Oct 99, the SAF denied the applicant’s
request for retirement and directed his dismissal. By GCM No. 2, dated
19 Oct 99, his dismissal, effective 15 Nov 99, was executed.

On 15 Nov 99, the applicant was dismissed from the Air  Force  with  a
bad conduct discharge.  He had 21 years,  2  months  and  20  days  of
active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, AFLSA/JAJM, reviewed the appeal and provided  his
rationale for recommending denial.

A complete copy of the evaluation is at Exhibit C.

The Retirement Programs & Policy Section, HQ AFPC/DPPRRP, notes  that,
at the time the applicant submitted his request in Nov 96 to retire in
lieu of court-martial, he was not eligible for retirement.  Because he
was under investigation  or  pending  involuntary  separation  action,
court-martial/civil  charges/procedures   and   appellate   leave   or
dismissal  he  was  not  eligible  for  Fiscal  Year  Temporary  Early
Retirement Authority (TERA) program. Denial is recommended.

A complete coy of the evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant takes  exception  to  the  legal  staffs’  labeling  his
behavior as “egregious.”  The wing commander would not have taken  the
positive actions he  did  if  his  [the  applicant’s]  reputation  and
behavior were that blatant and egregious.  The actions  for  which  he
was convicted occurred between Oct 95-Feb 96.  The  investigation  did
not commence until the end of Apr 96.  The AF Personnel Board reported
to the SAF that  he  was  not  retirement  eligible  at  the  time  he
committed the offenses and therefore the only  appropriate  resolution
in his case was  to  dismiss  him.   He  believes  he  was  retirement
eligible before the offenses occurred and the investigation  began  in
Apr 96 and could have retired effective Oct 95 had he applied for  the
program. Any time during the investigation, the commanders could  have
issued him a Letter of Reprimand (LOR), closed the  case  and  allowed
him to retire.  Further, the one condition where  retirement  “should”
not be allowed is the “under investigation” category, which implies it
is possible but not recommended. None of the other 12 conditions  even
opens the possibility.  He stands convicted of a  single  incident  of
adultery, one specification of fraternization and one specification of
conduct  unbecoming  an  officer.  There  was  never  any  favoritism,
partiality,  or  disruption  to  good  order  and   discipline.    The
government invested a lot of time and money to  “throw  the  book”  at
him.  His  actions  were  wrong,  but  his  punishment  was  far  more
excessive than it should have been.   He  asks  that  his  outstanding
performance record be considered and he be allowed to retire.

A complete copy of applicant’s response is at Exhibit F.

_________________________________________________________________

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 setting  aside
the applicant’s dismissal and allowing him to retire in the  grade  of
LTC.  The applicant argues, in part, that the sentence he received for
his offenses was unduly harsh compared to similar cases  and  was  the
result of extreme prosecution likely driven by racial prejudice.  This
Board weighs the merits of each appeal before its consideration on  an
individual basis; we  are  not  privy  to  the  particulars  of  other
fraternization cases to which the applicant  apparently  wants  to  be
compared and which have  not  come  under  our  purview.   We  do  not
disagree that the penalty the applicant paid for  his  misconduct  was
severe; however, the majority of the Board does not believe that  this
inherently renders it unjust or improper. The majority notes that  the
applicant’s misconduct was not an isolated incident, apparently having
occurred over several months with two junior female enlisted  members.
He disregarded the training he undoubtedly received over more than  18
years of service as an officer.  He was married at  the  time  of  his
offenses, his indiscrete conduct often took place  in  view  of  mixed
ranks and, as a superior officer, he set an unacceptable  example  for
those under his command. Further, the AFCCA considered the  sentencing
issues raised by the applicant.  As  indicated  in  their  brief,  the
AFCCA gives individualized consideration to the nature and seriousness
of the offenses and the character of the  offender.  The  AFCCA  noted
that the applicant ignored several signals  that  he  should  end  his
illegal conduct. After careful consideration, the AFCCA found that the
collection  of  automatic  forfeitures  of  the  applicant’s  pay  and
allowances during his confinement was improper and should be restored,
that the findings of guilty of fraternization with SRA H  and  conduct
unbecoming an officer with SRA D should be set aside and dismissed  as
multiplicious, and that the sentence was appropriate and correct.  The
applicant also asserts that he was retirement eligible and should have
been allowed to retire in the grade of  LTC.   He  adds  that  had  he
applied, he could have retired effective Oct 95. The fact is  that  he
didn’t, and even if he had, Attachment 2 to MPFL 95-26, dated  19  Apr
95, stipulates that in order to retire in the grade of LTC, the member
had to be in that grade for two years. With a date of rank to LTC of 1
Sep 94, the applicant did not meet the time in grade  requirements  in
Oct 95. Subsequent to that, he  was  under  investigation.  Given  the
seriousness of the charges being investigated and tried, the  majority
believes that approval of his retirement application would  have  been
inappropriate.  The majority of the Board  is  not  persuaded  by  the
applicant’s essential belief that he was entitled to retirement merely
because he may have been eligible and requested  it.  The  applicant’s
numerous  contentions  were  reviewed  at  several  levels  and  found
insufficient to overturn the actions taken against him.  There  is  no
question that he paid a high price for his  misbehavior.  However,  in
the final analysis, he has not provided a compelling basis upon  which
the Board majority could  conclude  that  his  court-martial,  officer
grade determination, and ultimate dismissal were in error  or  unjust.
Therefore, the majority of the Board concludes that this appeal should
be denied in its entirety.

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(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 August 2001 under the provisions  of  AFI  36-
2603:

                 Mr. Patrick R. Wheeler, Panel Chair
                 Mr. Philip Sheuerman, Member
                 Ms. Martha Maust, Member

By a majority vote, the Board recommended denial of  the  application.
Ms. Maust voted for  partial  relief  in  the  form  of  allowing  the
applicant to retire in the grade of major and has submitted a Minority
Report, which is at Exhibit G. The following documentary evidence  was
considered:

   Exhibit A.  DD Form 149, dated 30 Jan 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 21 May 01.
   Exhibit D.  Letter, HQ AFPC/DPPRRP, dated 18 Jul 01, w/atchs.
   Exhibit E.  Letter, SAF/MIBR, dated 20 Jul 01.
   Exhibit F.  Letter, Applicant, dated 2 Aug 01.
   Exhibit G.  Minority Report.



                                   PATRICK R. WHEELER
                                   Panel Chair

AFBCMR  01-00377




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                        FOR CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendations of the Board members, including the dissenting
member’s Minority Report.  A majority found that the applicant had not
provided sufficient evidence of error or injustice and recommended the
case be denied.  I concur with that finding and the majority’s
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                  JOE G. LINEBERGER
                                  Director
                                  Air Force Review Boards Agency
AFBCMR 01-00377


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                                         CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  Minority Report - AFBCMR Application of


      The applicant was dismissed from the Air Force on November 15,
1999, following a general court-martial in which he was convicted of
fraternization with two junior enlisted members, adultery, and conduct
unbecoming an officer. The applicant appeals for his dismissal to be
set aside and he be allowed to retire in the grade of lieutenant
colonel (LTC). In Executive Session on August 30, 2001, a majority of
the Board determined that his request should be denied.  I disagree
and instead recommend that partial relief be granted in the form of
allowing the applicant to retire in the grade of major.

      I do not believe this appeal can be considered in a vacuum.  As
a civilian with many years of experience interacting with Air Force
military personnel and as a participant in the correction of records
process on this Board, I can’t help but contrast how harshly the
applicant was punished compared to other fraternization cases of which
I am aware.  The applicant, an otherwise stellar officer, was removed
from his position and given a referral officer performance report.
His career for all intents and purposes was already over.  Even
conceding the merit of the Article 32 Investigation Officer’s opinion
that a trial was probably the best arena in which to impartially
evaluate the credibility of the participants and witnesses, the
sentence imposed did not fit the “crime.” The applicant was confined
with hardened criminals for three months.  Surely, this was sufficient
humiliation and punishment.  In fact, the 22nd Comptroller Flight
commander supported the applicant’s retirement in the grade of LTC,
citing his outstanding service and already ample punishment.  The
commander pointed out that others similarly situated were allowed to
retire in the grade held.  Also noteworthy were the statements by
senior officers who had personal knowledge of the applicant’s
performance during the period involved included in the applicant’s
clemency package.  While not disagreeing with the court findings and
sentencing, one of the jury members of the applicant’s court-martial
supported the applicant being allowed to retire in view of his years
of service, family situation and having already served three months’
confinement.  In addition, the former 22nd Air Refueling Wing vice
commander indicated that, given all of the circumstances, some
leniency was warranted by allowing the applicant to retire.

      The applicant contends, in part, that the severity of his
sentence may have been driven by racial prejudice.  I do not believe
he has established his case on this basis, but I am convinced that he
could have been the victim of overzealous accountability.  Following
the Navy Tailhook publicity and the Black Hawk shootdown, the demand
for strict accountability over the next few years was pursued with
such zeal that fairness and equity were sometimes left behind.  I
think to a certain degree that’s what happened here.  Similarly, there
was considerable publicity about other Air Force and Army
fraternization cases that led to a climate of overreaction.   I would
also note that the most well publicized cases did not result in a bad
conduct discharge.  In this case, contrary to the others, the
applicant did not mount a media defense and instead trusted the Air
Force command structure and military legal system. While the
applicant’s misbehavior should not have gone unpunished, I suspect
that in another time it would not have had such devastating, long-term
consequences.  Not only was he denied retirement, he continues to be
denied the opportunity to pursue civilian employment to the fullest
extent of his abilities due to the bad conduct discharge.

      Accountability in this instance ought to be shouldered in part
by his senior leadership.  Based on the available evidence, the
applicant’s actions were witnessed by members of the senior command
staff and others at the social events cited as evidence, yet his
superiors apparently did not take any preliminary steps such as
counseling him or issuing a direct order to cease his misconduct.  Had
they done so, perhaps the applicant would have rectified his behavior
before it escalated to the point of no return. Instead, their turning
a blind eye on his conduct at the time connotes a level of tolerance
that may have been typical given the combined club/dining facility and
mixed social events on the applicant’s base.  The documentation
available to this Board did not specify what led to the request for an
OSI investigation.  The possibility exists that it may have been the
result of another investigation in which someone “offered up” the
applicant to mitigate their own punishment.  It is disturbing that
documents that should have been available to clarify board members’
questions were not retained as required -- the OSI report and the
SAFPC file with its decisional memo.  Nothing in the available
information indicates that the applicant’s behavior involved
relationships with individuals within the comptroller organization or
chain of command or adversely affected morale, discipline or mission
accomplishment.  Neither were they coercive or were there allegations
of sexual harassment.

      I believe a more equitable punishment would have been to allow
the applicant to retire in the grade of major.  In this regard, I note
the applicant was promoted to LTC effective September 1, 1994.  The
investigation revealed that his misconduct began between October 1995
and January 1996. Consequently, I do not believe he served
satisfactorily in the grade of LTC and should not be allowed to retire
in that grade.  However, given his otherwise outstanding performance,
the nature of his offenses, the heightened sense of accountability at
the time, the lack of command intervention prior to the investigation,
the atmosphere of the base, and the atypical punishment he received, I
strongly recommend that the dismissal portion of his punishment be set
aside and he be allowed to retire in the grade of major effective
November 15, 1999.




                             MARTHA MAUST
                             Board Member