RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-00849
                 INDEX CODE 110.03  134.02  131.01
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be reinstated to active duty in the  grade  of  1st  lieutenant
(1Lt), effective and with a date of rank (DOR) of 14 Jan 02, with back
pay and leave, and a  permanent  change  of  station  (PCS)  with  his
spouse.

2.  The Letter of Reprimand (LOR) dated 30 Aug 01 and the  Unfavorable
Information File (UIF) be declared void.

3.  The results from the Commander-Directed Investigation  (CDI),  the
not-qualified-for-promotion (NQP) action,  and  all  other  derogatory
information be expunged from his records.

4.  He be considered for promotion to captain, either directly  or  by
Special Selection Board (SSB) with a DOR of 14 Jan 04.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He knows what he did  was  in  violation  of  Air  Force  Instructions
(AFIs), but there seems to be two different Uniform Codes of  Military
Justice (UCMJ), depending on your pay grade. He was wrongfully charged
and the punishment did not  fit  the  “crime.”  Management  played  an
active role in supporting/condoning his relationship with an  enlisted
member. When the issue became an item of accountability, they  “washed
their  hands”  of  the  situation  and  denied  any  involvement.  The
leadership discriminated against him in the way his case was  handled,
compared to other squadron incidents. The investigating  officer  (IO)
of the CDI may have been biased against him and intimidated witnesses.
The CDI is flawed and warrants dismissal.  Without  it,  there  is  no
reason for the LOR. With no LOR, the  Air  Force  has  no  grounds  to
discharge him. He believes when his “show cause” package was submitted
to higher headquarters, it was not properly reviewed because they  may
have only reviewed the advisory  statements  submitted  by  the  level
below them. The
characterization of his discharge does not reflect his service record.
He is “condemned” to  spend  the  rest  of  his  life  with  the  word
“misconduct” on his DD Form 214 for a crime  that  is  unique  to  the
military.

The applicant’s complete submission, including  a  cassette,  numerous
supporting statements (current and from 2001), and other  attachments,
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force  in  Jan  92  and  was
assigned first to Grand Forks AFB, ND, and then to Holloman  AFB,  NM.
His Enlisted Performance Reports (EPRs) reflect  the  highest  overall
rating of “5.”

He applied for Officer Training School (OTS) in 1999 and graduated  in
Jan 00. He entered active duty as a 2nd lieutenant (2Lt) on 14 Jan 00.
He was assigned to the 319th Comptroller Squadron  (319 CS)  at  Grand
Forks AFB, ND, as the deputy chief for financial analysis.

His Officer Performance Report (OPR) for the period 14 Jan 00  through
13 Jan 01 reflects he met all standards. The rater (Maj M) of the  OPR
was the 319 CS commander and the additional  rater  (Col  G)  was  the
319th Air Refueling Wing (319 ARW) commander.

The applicant was projected for promotion to 1Lt with a DOR of  14 Jan
02.

On 9 Apr 01, Maj  M  gave  a  Letter  of  Admonishment  (LOA)  to  the
applicant, having been informed that  he  had  been  dating  a  female
senior airman (SRA) in the same squadron  and  that  this  was  common
knowledge in the unit. The applicant was advised this  was  in  direct
violation   of   AFI   36-2909,   Professional   and    Unprofessional
Relationships. The letter added that repetition of his behavior  would
not  be  tolerated  and  could  result  in  more  severe  actions  and
jeopardize his career. She further gave both  the  applicant  and  the
female  SRA  written  “no  contact”  orders,  to   include   physical,
telephone, mail/message and surrogative contact. However, testimony in
a subsequent investigation indicated Maj M  verbally  lifted  the  no-
contact orders around 12-16 Apr 01, but told both  members  that  they
were to conduct themselves according to regulation and  have  no  more
personal contact.

The applicant deployed to Turkey on 21 May 01 in support of  Operation
Northern Watch.

According to a 13 Jun 01 email, the commandant of  cadets,  Air  Force
Reserve Officer  Training  Corps  (ROTC)  at  the  University  of  ND,
discovered that  the  female  SRA,  who  apparently  was  planning  to
separate and was putting together an ROTC package, was engaged to  the
applicant.

A new rater (Maj S) assumed the 319 CS command on 29 Jun 01.

The applicant returned to Grand Forks AFB on 13 Jul 01 in  preparation
for his scheduled  permanent  change  of  station  (PCS)  in  Sep  01.
However, he was immediately taken to the base legal  office,  briefed,
and  provided  copies  of   AFI   36-2909   and   UCMJ   Article   134
(Fraternization).

On 17 Jul 01, the applicant and the female SRA were married.

On 24 Jul 01, Maj S appointed an IO to investigate the existence of an
alleged unprofessional relationship between the applicant and his wife
and whether it had impacted the  good  order  and  discipline  of  the
squadron. A Report of Investigation (ROI) was completed on 3  Aug  01.
The IO concluded that  the  applicant  and  his  spouse  were  willing
participants in an unprofessional relationship which began in Jan  01,
possibly as  early  as  Nov  00,  and  continued  through  periods  of
discipline and in spite of  the  effort  to  separate  them  with  the
applicant’s deployment. The IO further concluded that the relationship
was widely known by early Apr 01 and had a detrimental impact  on  the
squadron by lowering morale, unit cohesion and respect for authority.

On 30 Aug 01, the wing  commander  issued  an  LOR,  reprimanding  the
applicant for knowingly cultivating an unprofessional  and  disruptive
relationship despite receiving an LOA  on  9  Apr  01  and  additional
counseling on 13 Jul 01. The wing commander also indicated he had lost
confidence in the applicant’s judgment and  questioned  his  continued
service in the Air Force.

Some time around 6 Sep 01, the commander  apparently  recommended  the
applicant be  found  NQP  to  the  grade  of  1Lt,  according  to  the
applicant’s statement. However, these documents are no longer  in  the
available military records. [Note:  When the applicant was discharged,
the NQP action would have ceased and these documents could  have  been
removed.]

According to  emails  included  in  the  applicant’s  submission,  the
squadron commander (Maj S) contacted  the  former  squadron  commander
(Maj M) on 10 Sep 01  for  clarification  as  to  whether  Maj  M  had
unofficially approved the relationship by allowing the  applicant  and
the enlisted female to have phone contact during his deployment. In an
email dated 11 Sep 01, Maj M responded that she at no time formally or
informally approved the relationship. She added  that  the  no-contact
order was lifted, but she did  not  specifically  remember  addressing
phone conversations. However, she stressed to the  applicant  and  the
enlisted member they were  to  have  no  personal  contact  and  limit
contact in the squadron.
Maj M added she encouraged the enlisted member with the  ROTC  package
because “then she would be out of the military and what she  did  then
[was] her business.”

On 11 Sep 01, the squadron commander (Maj S) recommended to  the  wing
commander that the applicant be involuntarily discharged  for  serious
and  recurring  misconduct   punishable   by   military   authorities,
specifically,  his  knowing  and  willing  engagement  in  an  ongoing
unprofessional relationship with  a  female  enlisted  member  of  his
squadron by dating and maintaining a personal relationship with her on
terms of  military  equality.  The  squadron  commander  asserted  the
applicant’s actions had negatively impacted morale and good order  and
discipline within the squadron. The commander  cited  the  applicant’s
disregard for Air  Force  standards  and  orders  and  disrespect  for
authority.

On 14 Sep 01, the  15th  Air  Force  (15  AF)  commander  advised  the
applicant he was initiating a  show  cause  action  for  retention  on
active duty because of the serious and recurring misconduct  cited  in
the LOA and LOR. The applicant acknowledged his understanding  of  his
rights, options and any necessary recoupment action. The applicant and
his area defense counsel (ADC) provided statements on 1 Oct 01.

On 4 Oct 01, the 15 AF Staff Judge Advocate (JA)  advised  the  15  AF
commander that, as the show cause authority, he could either refer the
case to a Board of Inquiry (BOI) or  the  Air  Force  Personnel  Board
(SAFPC). The JA recommended the case  be  referred  to  SAFPC  with  a
recommendation for a  general  characterization  of  service.  The  JA
believed a general discharge would fairly and accurately describe  the
applicant’s service, i.e.,  service  had  been  generally  honest  and
faithful but was  marred  by  significant  negative  aspects  of  duty
performance or personal conduct that outweighed the  positive  aspects
of the applicant’s record.

On 9 Oct 01, the 15 AF commander forwarded the applicant’s case to  HQ
AFPC/DPPRS  (Separations  Branch),  for  referral  to  SAFPC  with   a
recommendation for a general  discharge  for  misconduct.  The  15  AF
commander cited the applicant’s knowing and willing engagement  in  an
unprofessional relationship with an enlisted member of  his  squadron.
HQ AFPC/DPPRS forwarded the case  to  SAFPC  through  HQ  USAF/JAG  on
18 Oct 01.

HQ USAF/JAG provided  a  17  Dec  01  advisory  to  SAFPC,  confirming
15 AF/JA’s notation that, should the applicant be allowed to  separate
with an honorable discharge as a result of an NQP action, he could  be
permitted to reenlist in the Air Force as a former enlisted member  of
the  Regular  Air  Force.  However,  a  member  was  not  entitled  to
reenlistment if separated for misconduct. HQ USAF/JAG found  that  the
possibility of reenlistment inconsistent with the  best  interests  of
the Air Force, that the  case  was  legally  sufficient,  and  that  a
general discharge was supportable.

On 16 Jan 02, SAFPC recommended the Designee for the Secretary of  the
Air  Force  (SAF/MRB)  discharge  the   applicant   with   a   general
characterization. SAFPC indicated that the Air Force Personnel  Board,
sitting as  the  Air  Force  Probationary  Officer  Board,  noted  the
repeated nature of the fraternization but placed  particular  emphasis
on the  disobedience  of  the  no-contact  order,  and  concluded  the
applicant’s good service as an enlisted man and an  officer  prior  to
his fraternization was outweighed by his willful misconduct.

On  17  Jan  02,  the  Secretarial  Designee  ordered  the   applicant
discharged with a general characterization of service.

On 31 Jan 02, after 10  years  and  3  days  of  active  service,  the
applicant   was   discharged   for   misconduct   with    a    general
characterization in the grade of 2Lt.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPSFM  advises  the  applicant  does  not  deny   having   an
unprofessional  relationship  but  contends  his  chain   of   command
supported the  relationship  and  did  not  consider  his  extenuating
circumstances. DPSFM believes the commander correctly administered the
use  of  the  LOA  and  the  LOR  and,  although  not  included,   the
establishment of a UIF was mandatory. Placement of an LOR  and/or  LOR
in the officer records is within a commander’s  authority.  Denial  is
recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPRS concludes that, based on the documentation in the  file,
the discharge was  consistent  with  the  procedural  and  substantive
requirements of the discharge regulation and within the discretion  of
the discharge authority. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/DPPPO advises that had the applicant remained on  active  duty
and been recommended for promotion by his  commander,  he  would  have
been promoted to the grade of 1Lt on 14 Jan 02. In addition, he  would
have been eligible to meet the Calendar Year 2003C  (CY03C)  Quarterly
Captain Promotion Process, scheduled to convene on 30 Sep  03.  If  he
was recommended for promotion, he would have a projected DOR of 14 Jan
04.

A complete copy of the evaluation is at Exhibit E.

The HQ AFPC/JA  addresses  the  applicant’s  various  contentions  and
summarizes that the decision as to the seriousness of the  applicant’s
misbehavior and the actions that were appropriate in response was  one
of discretion on the part of the commander. They
note the applicant did not raise these  issues  during  the  discharge
process.  The  evidence  in  this  case  reveals  that  the  applicant
participated in a course of conduct serious enough  to  fully  warrant
the actions taken. There is no evidence that the commander abused  her
discretion. In addition, the final decision to discharge the applicant
was subsequently concurred in by higher levels of command and the SAF.
As the applicant has failed to present relevant evidence of any  error
or injustice warranting relief, denial is recommended.

A complete copy of the evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states his ADC directed his response to the  show  cause
notice and told him to be accountable for his actions. He  was  unable
to make a statement on his behalf because  his  ADC  was  hardly  ever
available. He was also ordered  by  his  commander,  under  threat  of
further disciplinary action, not to talk to  anyone  in  the  squadron
about his ordeal. He was not given every opportunity to  research  and
present any rebuttal. The IO was biased against  him  and  overbearing
and   intimidating   towards   witnesses,   who   felt   coerced   and
uncomfortable. The greatest upheaval in the squadron was  provoked  by
the First Sergeant who spread  rumors  and  told  everyone  about  the
relationship. He asks why his commander did not initiate proper action
earlier when she claimed she  knew  he  had  violated  the  order  she
supposedly gave him. He also questions why would management support  a
package to make his fiancée an officer if they were breaking AFIs. The
preponderance of the evidence shows he  and  his  fiancée  were  given
permission to converse on the phone. The relationship did  stop  after
the 9 Apr 01 LOA because they had no personal contact, other than  the
phone calls they were told they could  make,  until  they  married  on
17 Jul 01. He  cites  the  two  Article  15s  he  submitted  on  other
individuals who were not discharged for unprofessional  relationships.
He received an LOR. If his actions were as serious as alleged, why did
he not receive an Article 15 or courts-martial? The LOR was  the  sole
counseling tool used in his case. By comparison,  individuals  in  the
weight management program (WMP) can violate this  Air  Force  standard
three times before separation is even considered. A general  discharge
does not coincide with an LOR.

A complete copy of  applicant’s  response,  with  attachments,  is  at
Exhibit H.

_________________________________________________________________

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. After a thorough  review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded the requested relief  should  be  granted.  The  applicant’s
contentions are duly noted; however, we do not find these  assertions,
in  and  by  themselves,  sufficiently  persuasive  to  override   the
rationale provided by the Air Force and the evidence  of  record.  The
legal reviews of  this  case  indicate  that,  while  the  applicant’s
service had been generally honest and faithful, it was marred  by  his
willful, and acknowledged, fraternization  misconduct.  The  applicant
has not shown that he was the  victim  of  bias,  that  the  commander
abused her discretion, or that the determinations  of  higher  command
levels and the Secretarial Designee were unfounded. We therefore agree
with the recommendations of the Air  Force  and  adopt  the  rationale
expressed as the basis for our decision that  the  applicant  has  not
sustained his  burden  of  having  suffered  either  an  error  or  an
injustice. 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  in
Executive Session on 12 November 2003 under the provisions of AFI  36-
2603:

                 Mr. David C. Van Gasbeck, Panel Chair
                 Ms. Patricia Kelly, Member
                 Mr. James W. Russell III, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2003-00849 was considered:

   Exhibit A.  DD Form 149, dated 6 Mar 03, w/atchs (including
                       cassette).
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPSFM, dated 2 Jun 03.
   Exhibit D.  Letter, HQ AFPC/DPPRS, undated.
   Exhibit E.  Letter, HQ AFPC/DPPPO, dated 18 Aug 03.
   Exhibit F.  Letter, HQ AFPC/JA, dated 29 Aug 03.
   Exhibit G.  Letter, SAF/MRBR, dated 5 Sep 03.
   Exhibit H.  Letter, Applicant, dated 11 Sep 03, w/atchs.





                                   DAVID C. VAN GASBECK
                                   Panel Chair