RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03089

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement grade be changed from major to lieutenant colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He served in grade of lieutenant  colonel  satisfactorily  for  longer  than
minimum time in grade (TIG)  requirements  for  retirement  in  that  grade.
Determination by Air Force Personnel Council to retire him in the  grade  of
0-4 was based solely on the Article  15,  which  occurred  after  sufficient
TIG.  This decision  has  the  practical  effect  of  extending  Article  15
punishment for a lifetime, exceeding statutory  limitations.   He  petitions
for correction of retirement grade on the grounds of  both  (Time  in  Grade
Determination) and injustice (Exceeding Art 15).

In support of his request, applicant has provided a  brief,  copies  of  his
officer performance reports,  officer  pre-selection  brief,  personal  data
sheet, and a copy of his referral officer report.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is a prior active duty lieutenant colonel, who retired as a  major
as a result of an officer grade determination (OGD) conducted in  accordance
with  Title  10,  U.S.C.,  Section  1370.  Prior  to   the   officer   grade
determination, his date of rank to lieutenant colonel was 1 June 1998.   The
applicant served 20 years, 2 months,  and  14  days  of  total  active  duty
service.

On 26 February 2001, the applicant, then a lieutenant colonel,  was  offered
nonjudicial  punishment  for  violation  of  a  lawful  order  and   conduct
unbecoming of an officer and gentleman, in violation of Article 92 and  133,
of the Uniform Code of Military Justice (UCMJ).  The specification  involved
having an inappropriate relationship with a  student,  which  violated  AETC
Instruction  36-2909,  and  developing  an  unprofessional  relationship  of
inappropriate familiarity with the second lieutenant student.   On  1  March
2001, after consulting with military defense counsel, the  applicant  waived
his  right  to  demand  trial  by  court-martial  and  accepted  nonjudicial
punishment.  He submitted a written presentation to his  commander.   Having
considered the evidence and the applicant’s response to the Article 15,  his
commander determined  the  applicant  committed  the  offenses  alleged  and
imposed punishment of forfeiture of $2,818.00 pay per month for  two  months
and a reprimand.  The applicant waived his right to appeal  the  punishment.


On  29  June  2001,  the  Secretary  of  the  Air  Force  Personnel  Council
determined the applicant did  not  serve  satisfactorily  in  the  grade  of
lieutenant colonel, but did serve satisfactorily in the grade of  major  and
would be retired as a major.  The applicant retired from the Air Force on  1
August 2001.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommend no relief be granted and stated  that  the  applicant’s
position is flawed and  without  merit.   In  this  case,  contrary  to  the
applicant’s assertion, the retirement at the grade of major was a result  of
the applicant’s inappropriate relationship with a female  second  lieutenant
student, not a direct consequence of nonjudicial punishment.  The  Secretary
of the Air Force determined the applicant did not  serve  honorably  in  the
grade of  lieutenant  colonel  because  of  the  applicant’s  unprofessional
relationship.  Had the applicant’s actions been addressed in a  forum  other
than nonjudicial punishment, the Secretary of  the  Air  Force  still  could
have found the applicant did not serve honorably and directed retirement  in
the grade of major.

The applicant admitted he  engaged  in  sexual  intercourse  with  a  female
lieutenant  undergraduate  pilot  and  that  his  actions  violated   orders
prohibiting relationships between AETC students  and  instructor  personnel.
The applicant does not question the punishment imposed by his commander;  he
does, however, assert that the consequences of  the  nonjudicial  punishment
was excessive.

A set aside should only be granted when the evidence demonstrates  an  error
or  a  clear  injustice.   The  evidence  presented  by  the  applicant   is
insufficient to warrant setting aside the Article 15 action,  and  does  not
demonstrate an equitable basis for relief.  The applicant  has  provided  no
evidence  of  a  clear  error  or  injustice  related  to  the   nonjudicial
punishment action.

AFLSA/JAJM complete evaluation is at Exhibit C.

AFPC/DPPRR recommended denial and stated  the  member’s  case  was  properly
processed in accordance with established  guidelines.   SAFPC  reviewed  the
case,  to  include  the  documentation  submitted  by  the  applicant,   and
determined that he didn’t serve satisfactorily in the  grade  of  lieutenant
colonel.  Member has not shown that an error or injustice has occurred.

AFPC/DPPRR complete evaluation with attachment is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant on 21 February 2003, for review and comment.  As of this date,  no
response has been received by this office.

_________________________________________________________________

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 an  error  or  injustice.   After  a  thorough  review  of  the
evidence of record and the  applicant’s  submission,  the  majority  of  the
Board is not persuaded that  his  grade  of  lieutenant  colonel  should  be
restored.  Applicant has  provided  no  persuasive  documentation  that  the
officer grade determination process was in error, nor  has  he  demonstrated
that the Air Force Personnel Council’s decision to retire him in  the  lower
grade was unjust and not soundly based  on  the  evidence  of  record.   The
Board majority believes it is not unreasonable to conclude that the  serious
nature of the offense tainted the applicant's entire period of service as  a
lieutenant colonel and the fact that this determination has an  impact  that
appears  to  exceed  the  penalties  specified  under  UCMJ  Article  15  is
incidental and does not constitute either error or injustice.  The  majority
of the Board believes that the applicant’s behavior  was  inconsistent  with
the highest standards expected of  an  officer  in  the  United  States  Air
Force.  Therefore, in the absence of evidence to the contrary, the  majority
of the Board finds no compelling basis  to  recommend  granting  the  relief
sought in this application.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2002-03089
in Executive Session on 17 June 2003, under the provisions of AFI 36-2603:

                       Mr. Robert S. Boyd, Panel Chair
                       Mr. James W. Russell, III, Member
                       Ms. Martha Maust, Member

By a majority vote, the Board recommended denial of  the  application.   Ms.
Maust voted to grant  the  applicant's  request  and  elected  to  submit  a
minority report which is attached at Exhibit G.


The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLS/JAJM, dated 26 Dec 02.
    Exhibit D.  Letter, AFPC/DPPRR, dated 28 Jan 03.
    Exhibit E.  OSI Report, dated 12 Dec 00, WITHDRAWN.
    Exhibit F.  Letter, SAF/MRBR, dated 21 Feb 03.
    Exhibit G.  Minority Report, dated 8 Jul 03.




                                   ROBERT S. BOYD
                                   Panel Chair
MEMORANDUM FOR THE DIRECTOR, AIR FORCE REVIEW BOARDS AGENCY

SUBJECT:  Minority Report in the AFBCMR Application of -----

      The Board for Correction of Military Records met on June 17, 2003.   I
voted in the minority to grant the applicant’s request to change his
retirement grade from Major (O-4) to Lieutenant Colonel (O-5).   After
hearing the discussion, I still believe this request should be granted for
the following reasons.   The incident, which resulted in the determination
to retire the applicant at a lower grade, was a single occurrence in an
outstanding Air Force career.  The applicant had held the higher grade for
over two years prior to the date of the incident.  The applicant had
already requested retirement, he was not trying to “escape” the
consequences of his actions.  While the incident was inexcusable, it was
not based on force or coercion -- implied or overt -- was not public, did
not impact unit morale and was not with a junior member of the Air Force
over which he had any daily contact or control.  The Article 15 punishment
of forfeiture of $2,818 pay per month for two months and a reprimand was
the maximum permitted in that venue.

      I believe the retirement grade reduction was excessive punishment and
was an overreaction in an atmosphere of sexual paranoia.  It was pointed
out in the case information that this was the second of three incidents the
junior officer was involved in, none of which resulted in any adverse
action against her despite her fraudulent assertion of sexual assault.  If
the Air Force is going to punish immoral behavior, bearing false witness
should certainly be grounds for discipline.   If the applicant had not
already applied for retirement he could have, theoretically, stayed on
active duty and continued to perform in the outstanding manner his record
indicates he was capable of doing.  He was denied this opportunity because
he had already submitted his retirement request.  Now he, and his family,
continues to be punished in the form of reduced retirement benefits.

      We hear that this is not a “one mistake Air Force”.  I can see no
reason, or benefit, in continuing to punish this individual for what was
admittedly a serious, yet single, occurrence.  On the basis of injustice I
recommend granting the applicant’s request to have his retirement grade
changed to Lieutenant Colonel (O-5).

                                       Martha A. Maust
                                       Assistant for Policy and Fiscal
                                       Control
                                       Directorate for Budget
                                       Management and Execution