RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01094
            INDEX NUMBER:  131.00; 129.04
      XXXXXXXXXX COUNSEL:  Fred L. Bauer

      XXX-XX-XXXX      HEARING DESIRED:  Yes

________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Grade Determination (OGD) that required him  to  retire  in
the grade of captain be overturned, his retirement grade  be  corrected
to reflect the grade of  major,  and  he  be  paid  all  back  pay  and
allowances.

________________________________________________________________

APPLICANT CONTENDS THAT:

In an eight-page brief of counsel,  with  17  attachments,  applicant’s
counsel indicates that the Article 15 the applicant received  that  led
to his retirement and  the  OGD  action  was  not  justified.   Counsel
discusses the background of the Article 15 action and why  it  was  not
warranted.  Counsel next asserts that the OGD process  was  misused  in
the applicant’s case.  He provides statistical data to support his view
that prior to 1995 the OGD  process  was  used  sparingly,  usually  in
courts-martial  cases,  and  normally  did  not  result  in  a  reduced
retirement grade.  Counsel further asserts that  while  the  number  of
OGDs resulting from courts-martials remained relatively stable,  single
Article 15s were increasingly being used to justify penalties  that  it
would take multiple courts-martials to impose (it  would  take  several
courts-martial to impose $200,000 in forfeitures, while  a  single  OGD
can easily do it).

The law on grade determination actions, 10 USC 1370, requires only  two
years of satisfactory service in grade.  The applicant  had  more  than
the required number of years of outstanding service  in  the  grade  of
major, had several outstanding OPRs  as  a  major,  and  had  earned  a
Meritorious Service Medal (MSM) in that grade.  Counsel also  addresses
the reason the applicant’s appeal is beyond the three-year  statute  of
limitation.

Counsel indicates that the Board may be familiar with other  OGD  cases
that were more egregious than the applicant’s, yet the respondents were
allowed to keep their grade.  Counsel cites examples referred to  in  a
Personnel Council Memo issued around the time of the applicant’s  case.
He highlights a case involving an officer  at  the  same  base  as  the
applicant that was of a more serious and embarrassing  matter  for  the
Air Force.  He claims that the officer was allowed to retire in grade.
As a final matter, counsel states that while the  applicant  was  being
advised by the local area defense counsel (ADC) concerning  whether  he
should accept Article 15  proceedings,  the  ADC  did  not  advise  the
applicant about the possibility  of  an  OGD  action.   Since  the  OGD
penalty is hundreds of times greater than the Article 15 penalty,  this
amounts to a denial of counsel and a lack of due process.

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

________________________________________________________________

STATEMENT OF FACTS:

According to information taken from applicant’s personnel  records,  he
is a graduate of the Air Force Academy and was commissioned in May 1981
and entered active duty on 27 May 81.  Applicant’s duty performance was
considered excellent until July 1995 when he was given  an  Article  15
for reprisal.  His last OPR closing in Nov 95 was a referral due to the
Article 15 action.  All other OPRs received by the applicant were rated
“meets standards.”  After receiving the Article 15,  applicant  applied
for retirement under the early retirement program in Nov  95.   Due  to
the Article 15 action and approval  for  his  retirement,  an  OGD  was
required.  AFMC/CV recommended that the applicant  be  retired  in  the
grade of major.  On 31 May 96, the Secretary of the Air Force Personnel
Council determined that the applicant should be retired in the grade of
captain.  At the time the applicant had two years seven months time  in
grade as a major.  The applicant was retired in the  grade  of  captain
effective 1 Aug 96.

The  remaining  relevant  facts  pertaining  to  this  application  are
contained in the evaluations prepared by the appropriate offices of the
Air Force found at Exhibits C and D.

________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM addressed the issue of whether the  applicant’s  Article  15
action should be set aside.  They recommend that the applicant  not  be
provided any relief regarding the Article 15, which  formed  the  basis
for the OGD.

Although the applicant alleges he never committed an  act  of  reprisal
against  his  subordinate,  there  was  sufficient  evidence  for   the
commander to determine the offense had been committed.  The applicant’s
arguments failed to convince  either  the  commander  who  imposed  the
punishment or the appellate authority.  While  different  fact  finders
may have come to a different conclusion, the commander’s  findings  are
neither arbitrary nor capricious and should not be disturbed.

The complete evaluation is at Exhibit C.

AFPC/DPPRR recommends that the applicant’s request that he  be  retired
in the grade of  major  be  denied.   They  believe  no  injustices  or
irregularities occurred in the processing of the applicant’s retirement
request.

The complete evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responds to the Air Force evaluations by indicating  that  they
disagree with their recommendations to deny relief.  Counsel points out
that they stated previously why the applicant’s reduction in grade  was
not consistent with the law in contrast to AFPC/DPPRR’s assertion  that
it was.  Counsel notes that the copy of the statute provided  by  DPPRR
regarding the rule for retirement in highest grade held  satisfactorily
only requires six months  satisfactory  service  in  that  grade.   The
applicant served  satisfactorily  in  his  highest  grade,  major,  for
several years.

In regards to the evaluation prepared by AFLSA/JAJM, counsel  addresses
the timeliness of the applicant’s appeal and why timeliness  should  be
waived in the applicant’s case.

Counsel states that the evaluation prepared by JAJM is notable for what
it does  not  discuss  rather  than  what  it  does.   He  specifically
references a case involving an officer at the same base during the same
time as the applicant that  he  asserts  was  guilty  of  more  serious
misconduct than that alleged against  the  applicant.   Counsel  states
that this officer was allowed to retire in his highest grade.   Counsel
asks, rhetorically, why would JAJM avoid  discussing  this  case.   The
only answer must be the difference in treatment of these two  cases  is
so grossly inequitable that it is beyond the skills of JAJM to  explain
it away.  On this basis alone, he states that  the  applicant  deserves
relief.  Counsel also responds that JAJM failed to address the evidence
of other cases they submitted in which the AFBCMR  decided  against  an
OGD despite the fact that worse misconduct than  that  alleged  against
the applicant was involved.

In regards to  the  Article  15  the  applicant  received  for  alleged
reprisal against a staff  sergeant  by  downgrading  his  EPR,  counsel
states that the applicant was not the only person that had  observed  a
decline in the sergeant’s performance.  JAJM does not address the  fact
that the staff sergeant still received an overall “5” on his  EPR  and,
therefore, did not have his promotion chances negatively impacted.

Counsel states that the allegation against the applicant that he became
angry and cut off a conversation with another officer involved in  this
case is not true.  Counsel addresses the issue  of  why  the  allegedly
aggrieved staff sergeant was not  submitted  for  an  award.   He  also
discusses  why  the  applicant  talked  about  the   staff   sergeant’s
performance with his (applicant’s) successor.

Regarding the allegation that the  applicant  called  in  an  anonymous
Fraud, Waste and  Abuse  complaint  against  another  officer,  counsel
questions how the IG was able to verify that  the  applicant  committed
this offense.  The  IG’s  actions  constitute  a  breach  of  faith…  a
reprisal in itself.

Counsel states that JAJM points out that in Tab 18 of  the  applicant’s
OGD file the Area  Defense  Counsel  apparently  provided  a  statement
admitting that he failed to inform the applicant of the possibility  of
an OGD.  Counsel requests that they be provided  a  copy  of  any  such
statement.  Assuming  that  what  JAJM  says  about  the  statement  is
correct, this means that while the ADC was advising the applicant about
the potential penalties of the Article 15, he failed to advise  him  of
the potential for a much more severe penalty through the OGD process.

Counsel reiterates their request that the  OGD  action  be  set  aside.
They also request that the  Article  15  action  be  set  aside.   They
believe they have submitted more than enough evidence to support  their
requests.  However, counsel emphasizes that  relief  from  the  OGD  is
their main concern.

Finally, they request that the Board take a look at  the  MAJCOM  legal
review and its’ strongly held negative opinions about the  government’s
case against the applicant.

Counsel’s complete 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  not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate
the existence of error or injustice regarding the  applicant’s  request
to set aside the Article  15  he  received.   We  took  notice  of  the
applicant's complete submission in judging  the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air  Force
office of primary responsibility and adopt their rationale as the basis
for our conclusion that the applicant has not been  the  victim  of  an
error or injustice.  Therefore, in  the  absence  of  evidence  to  the
contrary, we find no compelling basis to recommend granting the  relief
sought in this application.

4.  Notwithstanding  the  above  determination,  we  believe  there  is
sufficient evidence of an error or injustice regarding the  applicant’s
retirement in the grade of captain.  We note the strong  recommendation
by the applicant’s Headquarters Squadron Section Commander that  he  be
allowed to retire in the grade  of  major.   We  note  the  commander’s
assessment that other than the incident leading to the Article 15,  the
applicant had an exceptionally strong record of performance as a major.
 We also note the recommendation of the MajCom Vice Commander, a three-
star general officer, to allow the applicant to retire in the grade  of
major.  Finally, we are concerned  that  the  applicant  may  not  have
received adequate legal advice regarding the impact of an Officer Grade
Determination, as  verified  by  his  Area  Defense  Counsel.   If  the
applicant had been aware of the potential impact of an OGD, he may have
delayed his voluntary  request  for  retirement  until  two  years  had
passed, negating the requirement for an OGD.  While it cannot  be  said
with certainty what the applicant’s actions would have been, we believe
the doubt should be resolved in his favor.  Therefore, in the  interest
of equity and justice, we recommend that  the  applicant’s  records  be
corrected as indicated below.

5.  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 issues involved.  Therefore,
the request for a hearing is not favorably considered.

_______________________________________________________________

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 higher grade  of  major  within  the  meaning  of
Section 1370(a)(1), Title 10, United States Code, and directed that  he
be retired in that grade.

        b.  On 31 July 1996, he was  relieved  from  active  duty  and,
effective 1 August 1996, he  was  retired  under  the  Temporary  Early
Retirement Authority in the grade of major.

_______________________________________________________________

The following members of the Board considered Docket Number 02-01094 in
Executive Session on 13 September 2002, under the provisions of AFI 36-
2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Mr. John E.B. Smith, Member
      Ms. Brenda L. Romine, Member

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

     Exhibit A.  DD Form 149, dated 7 Mar 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 21 Jun 02.
     Exhibit D.  Letter, AFPC/DPPRR, dated 9 Jul 02.
     Exhibit E.  Letter, SAF/MIBR, dated 19 Jul 02.
     Exhibit F.  Letter, Applicant, dated 20 Aug 02.




                                   ROSCOE HINTON, JR.
                                   Panel Chair


AFBCMR 02-01094




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXXXXXX, XXX-XX-XXXX, be corrected to show
that:

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

              b.  On 31 July 1996, he was  relieved  from  active  duty
and, effective 1 August 1996, he was retired under the Temporary  Early
Retirement Authority in the grade of major.







            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency