RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  02-00431
            INDEX CODE 106.00 111.02  136.00
            COUNSEL:  VFW

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1995  general  discharge  be  upgraded  to  honorable  and  he  be
authorized a 15-year retirement under the Temporary  Early  Retirement
Authority (TERA) Program.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He made one mistake in his entire Air Force career.   The  turmoil  in
his personal life in the last few years with his late  wife's  illness
for six years and subsequent death had an impact on the errors he made
in judgment.  His discharge was inequitable because the  policies  and
procedures in 1995 regarding professional/unprofessional relationships
were significantly and materially different from the revisions made to
the governing regulation in 1999.  If the new directive  had  been  in
effect, he would  not  have  been  subjected  to  a  court-martial  or
resignation with a general discharge. [The applicant originally had an
other-than-honorable-conditions (UOTHC) discharge, which was  upgraded
by the Air Force Discharge Review Board (AFDRB) in 1996 to  a  general
discharge - See Statement of  Facts.]  He  probably  would  have  been
allowed to remain on duty with a reprimand or been permitted to retire
under the TERA  program.  He  was  treated  much  harsher  than  other
officers who were allowed to  retire  with  full  retirement  pay  and
benefits.   One  counseling  conversation  would  have  corrected  the
situation and saved his entire military career.

The applicant's complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The following information was extracted from the applicant's  military
personnel records, the Article 32 Report of Investigation  (ROI),  his
resignation in lieu of (RILO) court-martial  package,  and  the  AFDRB
file.

The applicant entered extended active  duty  on  28  Sep  79  and  was
ultimately promoted to the grade of major on 1 May 91. His performance
reports from 26 Mar 80 through 22 May 93 reflect the  highest  overall
ratings.

The applicant's wife of 10 years, who had been diagnosed with leukemia
in Mar 87, died of the disease on 31 Mar 93, leaving him with a  young
son. At the time, he  was  the  35th  Comptroller  Squadron  financial
analysis flight chief at Offutt AFB, NE. On 23 Jul 93, he was assigned
as the commander of the 28th Comptroller Squadron  at  Ellsworth  AFB,
SD.

SSgt C-- was the NCOIC of Quality  Examination  in  the  military  pay
section of the 28th Comptroller Squadron and had been in the Air Force
for 11 years. Her best friend had also died of leukemia. Both she  and
the  applicant  were  single  parents  and   African-Americans.   (The
applicant had a one-time date with the  only  female  African-American
officer  on  the  base;  however,  she  was  much  younger   and   the
relationship did not develop.) In Sep 93, SSgt C-- twice  invited  the
applicant out to eat because she thought he seemed lonely. He accepted
the second invitation. In late Nov 93 they had sexual  relations.  The
applicant bought SSgt C-- a number of gifts, including  an  engagement
ring, and on a greeting card asked her to marry him. The applicant and
SSgt C-- were seen at the movies together  in  Jan  94.  A  lieutenant
brought rumors of the relationship to the first  sergeant,  MSgt  J--,
who began to "investigate" by querying others. MSgt J-- spoke  to  the
applicant in Jan and again in Feb 94, telling  him  that  rumors  were
disrupting the squadron and a 3 Feb 94 "Hotline"  complaint  had  been
made to the wing commander.  There  was  a  perception  of  favoritism
because SSgt C-- had received two awards and was being recommended for
a STEP promotion. On both occasions the  applicant  did  not  deny  or
confirm the  relationship.  Apparently,  however,  he  broke  off  the
relationship around 6 Feb 94.

On 10 Feb 94, the applicant was relieved of his command and reassigned
as an information management officer  for  the  28th  Mission  Support
Squadron. Both he and SSgt C-- were given no-contact orders.

On 4 Apr 94, he was charged with violating Article 134 of the  Uniform
Code of Military Justice (UCMJ). Specifically, between 1 Sep 93 and 10
Feb 94, he knowingly fraternized on terms of  military  equality  with
SSgt C--, a subordinate in his direct chain of command, by engaging in
sexual intercourse with her on divers occasions, and by giving  her  a
diamond ring and a coat.  That same day, the 28th Bomb Wing  commander
(28BW/CC) directed an Article 32 investigation.

The Article 32 ROI,  completed  on  6 Apr  94,  recommended  trial  by
general court-martial, which was subsequently scheduled for 30 Jun 94.

On 16 May 94, after consulting with counsel, the  applicant  submitted
his RILO request for the  good  of  the  service.   He  indicated  his
understanding that if  his  resignation  was  accepted,  he  would  be
discharged with a UOTHC characterization unless the Secretary  of  the
Air Force (SAF) determined he warranted a general  discharge.  In  his
letter to the SAF, he asked to retire effective 1 Aug 94  with  a  15-
year retirement under TERA. The applicant's area defense counsel (ADC)
submitted a supporting statement, pleading for compassion and that the
applicant be allowed to honorably retire.

On 23 May 94,  the  vice  commander  (28BW/CV)  and  the  staff  judge
advocate (28BW/JA) recommended to the  28BW/CC  that  the  applicant's
RILO be accepted and he be  separated  with  a  UOTHC  discharge.  The
28BW/CC concurred with their recommendations that same  day,  and  the
case was forwarded to the 8th Air Force (8AF). On 31 May 94 and 6  Jun
94, respectively, the 8AF/JA and the 8AF/CV recommended  the  RILO  be
accepted and the applicant's service be characterized as UOTHC.

On 30 Jun 94, the 28BW/CC advised the applicant that his request for a
15-year retirement needed to be submitted on an AF Form 1160; however,
submission of the form did not entitle him to or guarantee retirement.
The applicant was  also  advised  that  the  28BW/CC  would  recommend
disapproval of the request  for  a  15-year  retirement  or  that  the
applicant be retired in the  grade  of  captain  if  his  request  was
approved.

The applicant submitted his  AF  Form  1160  on  30  Jun  94  with  an
effective retirement date of 1 Aug 94. However, he would not have  had
15 years of active service on that date and therefore would  not  have
been eligible to retire under the provisions of the TERA Program.  The
28BW/CC signed the form on 6 Jul 94 and forwarded  his  recommendation
to deny to the SAF on 6 Jul 94.  At the  same  time,  the  applicant's
requested effective date of retirement was changed to 1 Oct 94.

On  1  Aug  94,  the  Air  Combat  Command  vice  commander   (ACC/CV)
recommended that the applicant's retirement request be disapproved  or
that he be retired in the grade of captain if approved. The  case  was
forwarded to the Air Force Personnel Board for consideration.

On 22 Aug 94, the Officer Performance  Report  (OPR)  for  the  period
23 May 93 through 22 May 94 was referred to the applicant. The  report
indicated he did not meet standards  in  the  performance  factors  of
leadership,  professional  qualities  and  judgment.   The   applicant
submitted a rebuttal, but the additional rater (8AF/CC) concurred with
the rater (28BW/CC).

While agreeing with the Air Force Personnel Board recommendation  that
the RILO should be accepted, the Director  of  the  Air  Force  Review
Boards Agency (AFRBA) disagreed with  their  characterization  of  the
applicant's service as UOTHC. On 2 Dec 94,  the  Director  recommended
that the SAF accept the applicant's RILO and, in view of his otherwise
honorable service, discharge him with a general characterization.

However, on 13 Feb 95, the SAF accepted  the  RILO  and  directed  the
applicant's separation with a UOTHC discharge.

The applicant was discharged in the grade of major on 24 Feb 95 with a
UOTHC characterization. The separation program designator  (SPD)  code
was "DFS" (Resign Triable by Court-Martial). He had 15 years, 4 months
and 20 days of active service.

He subsequently appealed to the  AFDRB  for  an  honorable  discharge;
however, his request was denied on 21 May 96.

The applicant appealed the AFDRB decision and testified  with  counsel
in a personal appearance before the board on  5  Oct  00,  essentially
making the same contentions as in the instant case. The  AFDRB  denied
his request for an honorable  discharge  but  did  upgrade  the  UOTHC
characterization to general. The AFDRB concluded that  the  UOTHC  was
inconsistent with punishments administered to officers  who  committed
similar offenses, but given the serious effect of his offenses on  his
squadron an honorable discharge was not warranted.

The applicant was subsequently issued a new DD Form 214  reflecting  a
general discharge.
_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS concurs with the  previous  decision  of  the  AFDRB  to
upgrade to a general, but not honorable, discharge. The applicant  did
not submit any new evidence or identify any errors or injustices  that
occurred in the discharge  processing.  He  provided  no  other  facts
warranting an upgrade of the discharge.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPRR notes that under the TERA program criteria  outlined  in
the MPFL 94-27, dated Jun 94, members under investigation  or  pending
involuntary separation action, court-martial/civil  charges/procedures
and appellate leave or dismissal were excluded from  being  considered
for the program. The applicant was ineligible to apply  for  the  TERA
program due to his misconduct.  Denial is recommended because  he  was
not eligible for retirement under the TERA program.

A complete copy of the evaluation, with attachment, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reiterates that the policies in 1995 were  significantly
different from those policies enacted in 1999. Based  on  the  revised
policies, the action taken against him would have been the last action
in an eight-step process now employed. He explains why his  appeal  is
timely. He was treated  more  harshly  than  other  officers  who  had
committed similar offenses, as validated by  the  AFDRB  and  enclosed
newspaper clippings.   He  requests  the  same  opportunity  as  these
individuals  who  were  afforded  the  chance  to  retire  with   full
retirement pay and benefits.

A complete copy of  applicant’s  response,  with  attachments,  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  error  or  injustice  to  warrant  upgrading   the
applicant’s discharge and allowing him to retire under the  provisions
of  the  TERA  Program.  We  were  impressed  with   the   applicant’s
outstanding career, and we  could  easily  understand  his  loneliness
following  his  wife’s  tragic  death  and  imagine  his  feelings  of
isolation when reassigned to South Dakota. However, as an officer  and
squadron commander with nearly 15 years in the service,  he  was  well
aware of the Air Force policy  and  custom  regarding  fraternization.
While his grief very likely had an adverse affect on his judgment,  it
did  not  remove  his  responsibility  to  maintain  good  order   and
discipline nor render him powerless to control his actions.  The  fact
remains that he was guilty of knowingly fraternizing with an  enlisted
subordinate in his chain of command. While  it  cannot  be  determined
with any  certainty,  had  he  gone  to  trial  in  all  likelihood  a
conviction  was  probable  given  the  evidence   available   to   the
prosecution. Unit morale was affected by the  rampant  rumors  of  his
affair  with  SSgt  C--.   Although   the   investigation   apparently
established that SSgt  C--  deserved  the  awards  she  received,  the
perception of favoritism clearly added  to  the  disruptive  influence
throughout the squadron. The applicant was  forewarned  twice  by  his
first sergeant, and his impropriety prompted a  hotline  complaint  to
the wing commander. He entered into  this  inappropriate  relationship
before he had accumulated sufficient military service to allow him  to
request early retirement under  the  TERA  Program,  and  he  remained
ineligible when he came under investigation and court-martial charges.
We agree with the comments presented by the Director of the  AFRBA  in
his 2 Dec 94 memo to the SAF, in which he contended--unsuccessfully at
that time--that the applicant should  be  separated  with  a  general,
rather than UOTHC, discharge.  The  applicant’s  UOTHC  discharge  was
ultimately upgraded to general by the AFDRB on 5 Oct  00.  We  believe
this was appropriate and sufficient relief given both  the  mitigating
and extenuating circumstances of this difficult  case.  The  applicant
has not provided convincing evidence that he is entitled to any remedy
beyond that already afforded him by the AFDRB. In view  of  the  above
and absent persuasive evidence to the contrary, we find no  compelling
basis to recommend granting the relief sought.

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.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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, AFBCMR
No. 02-00431, in Executive Session on 9 July 2002 under the provisions
of AFI 36-2603:

                 Mr. Vaughn E. Schlunz, Panel Chair
                 Mr. Michael V. Barbino, Member
                 Mr. Michael Maglio, Member

The following documentary evidence pertaining to AFCMR  Docket  Number
02-00431 was considered:

   Exhibit A.  DD Form 149, dated 22 Jan 00, w/atchs
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 4 Mar 02.
   Exhibit D.  Letter, HQ AFPC/DPPRR, dated 8 Mar 02, w/atch.
   Exhibit E.  Letter, SAF/MRBR, dated 15 Mar 02.
   Exhibit F.  Letter, Applicant, dated 5 Apr 02, w/atchs.



                                   VAUGHN E. SCHLUNZ
                                   Panel Chair