RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-02431
            INDEX CODE 129.04
            COUNSEL:  Michael D. Schag

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Grade Determination (OGD) be changed so  that  he  may  be
retired in the grade of lieutenant colonel (LTC) rather than major.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Secretary of  the  Air  Force  (SAF)  decision  to  terminate  his
appointment, transfer him to the Retired Reserve  (RR)  and  establish
his retired grade as major directly contradicts the determinations  of
a hearing  body.  Although  distinctions  can  be  drawn  between  the
findings and recommendations of a discharge  board  and  an  OGD,  the
distinctions are illusionary and unimportant in this case. A discharge
board consisting of seasoned officers, considering a voluminous record
of live testimony and documentary exhibits  determined  that,  despite
findings of  misconduct,  an  honorable  characterization  of  service
should attach to his service. This  determination,  which  necessarily
included an assessment of performance  in  the  last  grade  held,  is
tantamount to finding that  his  service  in  the  grade  of  LTC  was
satisfactory. There is no basis in the  record  to  reach  a  contrary
conclusion. Consequently, the SAF, acting through a delegate, issued a
decision that is arbitrary, against the weight of  the  evidence,  and
lacking  legally  sufficient  justification.  His  record  warrants  a
reversal of the SAF’s action.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, an Individual Mobilization Augmentee (IMA) and a former
US Customs Agent, was promoted to the Air Force Reserve (USAFR)  grade
of LTC effective 14 Sep 96.

During the period in question, he was assigned to HQ Air  Intelligence
Agency (AIA), Kelly AFB, TX,  attached  to  the  Defense  Intelligence
Agency  (DIA),  Washington  DC,  as  an   intelligence   officer   for
operations. He also served as a human  resource  intelligence  officer
with the Joint Integrated Agency Task Force (JIATF) in Key West, FL.

According to an Orange County Sheriff’s Office  Investigative  Report,
on 29 Apr 97, a woman (Ms. J) reported that she had been the victim of
harassing phone calls at her place of employment from  the  applicant,
her former boyfriend. She believed she had been targeted after he  was
acquitted of aggravated stalking charges in Seminole County. According
to Ms. J, the applicant’s employment with the US Customs  Service  was
terminated following an internal investigation into  her  allegations.
The applicant appealed the termination and overturned the firing.  The
US Customs Service determined he was chargeable for  his  actions  and
changed the termination into a suspension and  transfer.  Following  a
phone call on 21 Apr 97 allegedly from the applicant, Ms. J wrote  the
US Customs Service Internal Affairs. A joint surveillance using agents
of the Sheriff’s Office  Felony  Squad  and  the  US  Customs  Service
ensued. The applicant  was  arrested  on  21 Jul  97.  He  denied  any
knowledge of the incidents involved and believed Ms. J was retaliating
against him because he  was  acquitted  of  the  charges  in  Seminole
County.

On 27 Oct 97, the applicant entered  active  duty  and  was  honorably
released on 13 Mar 98 for completion of required  active  service  and
transferred to the USAFR.

On 29 May 98, the applicant was  convicted  of  willfully  stalking  a
former girlfriend (Ms. J) in Florida. He was sentenced to pay  $295.50
in fines and court costs, serve 15 days in the Orange County jail, was
placed on 350 days of supervised  of  probation  and  ordered  not  to
contact the victim during the probation period.

On 24 Aug 98, the applicant received  a  Letter  of  Reprimand  (LOR),
dated 20  Jul  98,  for  the  conviction  and  resultant  local  media
coverage. The applicant rebutted the LOR and asked that it be held  in
abeyance until his legal proceedings were concluded.  However,  on  17
Sep 98 the issuing officer (DIA Director of Operations)  rejected  the
applicant’s request. The LOR was placed in the applicant’s Unfavorable
Information File (UIF) 29 Sep 98.

According an Osceola County, FL Charging Affidavit Continuation  dated
1 Oct 98, a Ms. G called  the  Sheriff’s  Office  in  reference  to  a
violation of an injunction complaint. She  advised  she  had  received
numerous harassing phone calls allegedly from the  applicant,  he  had
driven by her house and stopped near her mailbox. Ms. G apparently had
a permanent injunction against the applicant, which had been served on
7 May 98 and instructed him to  stay  away  from  her,  her  place  of
employment and at least 500 feet from her residence. The agency  noted
the applicant had a history of harassment and stalking: arrests in  95
for aggravated stalking, in Apr 96 for harassing telephone  calls,  in
Aug 97 and May 98 for stalking; a 6 Apr 98 harassment report, and a 20
Aug 98 report for harassment.

A 2 Oct 98 Affidavit Violation of Probation  indicated  the  applicant
had violated the 29 May 98 probation he  was  placed  on  for  willful
stalking with a new violation of aggravated stalking on  or  about  30
Sep 98.

On 30 Dec 98, a commander-directed Officer  Performance  Report  (OPR)
for the period 13 Mar-14 Oct 98 was referred to the applicant. The OPR
reflected he did not meet standards  in  the  performance  factors  of
Leadership Skills, Professional Qualities, and Judgment  &  Decisions.
The rater also commented on the LOR and UIF for civil court conviction
for stalking. The applicant provided a rebuttal,  but  the  additional
rater concurred with the rater.

On 17 Jun 99, he was found to have violated, on or around 30  Sep  98,
an injunction ordering him not to contact Ms. G, which  was  deemed  a
violation of the terms of his probation. He was ordered to serve  nine
months in the Orange County jail with credit for 27 days time served.

On 16 Aug 99, HQ AIA advised the applicant  he  was  being  reassigned
from his  DIA  billet  to  the  Non-obligated  Nonparticipating  Ready
Personnel  Section  (NNRPS)  for  failure  to  meet  military  conduct
standards; specifically, his court conviction  for  willful  stalking.
This rendered the applicant ineligible to participate  until  a  final
decision had been reached. The applicant responded by letter dated  16
Sep 99. However, on 24 Sep 99, HQ AIA requested HQ ARPC  reassign  the
applicant to NNRPS  and  consider  him  for  discharge  based  on  the
misconduct that led to his conviction for willful stalking.

On 5 Oct 99, the applicant was relieved from HQ AIA and reassigned  to
HQ ARPC.

HQ ARPC/JA’s legal review on 4 Nov 99 recommended discharge action  be
initiated based on conviction by civilian authorities, with an  under-
other-than-honorable-conditions (UOTHC) characterization of service.

On 16 Nov 99, HQ ARPC/DPPS notified the  applicant  of  initiation  of
proposed discharge from his appointment as a USAFR  officer  based  on
his civilian conviction in May 98 for willful stalking and  his  being
ordered on 17 Jun 99 to serve nine months in jail  for  violating  the
conditions of his probation.

On 22 Dec 99, the applicant requested transfer to the RR  in  lieu  of
involuntary administrative discharge action. HQ  ARPC/JA  nonconcurred
on  20  Jan  00  and  recommended  the  involuntary  discharge  action
continue.  On  4  Feb  00,  the  HQ  ARPC  commander  disapproved  the
applicant’s request. On 2 Mar 00, the  SAF  declined  the  applicant’s
request for transfer to the RR.

An Administrative Discharge Board (ADB) convened on 14 Mar 00. The ADB
recommended the  applicant  be  discharged  from  the  USAFR  with  an
honorable discharge.

On 15 Mar 00, the applicant’s counsel requested the execution  of  the
discharge be  held  in  abeyance  pending  his  appeal  regarding  the
misdemeanor conviction. However, on 5 Jul 00, the  applicant’s  appeal
of his conviction to the Circuit Court for the Ninth Circuit in FL was
denied. Apparently, he further appealed to the FL Supreme Court, which
dismissed his Petition for Review.

On 3 Aug 00, HQ ARPC/JA determined the ADB  proceedings  were  legally
sufficient and recommended the  ADB  findings  for  discharge  due  to
civilian conviction, with an honorable characterization, be approved.

On 7 Aug 00, the HQ ARPC commander approved the recommendation of  the
ADB and forwarded the case to HQ USAF/JAG  for  referral  to  the  SAF
Personnel Council (SAFPC). On 11 Aug 00, the applicant was provided  a
copy of the ADB’s decision, as was his counsel, and advised  that  his
case was being forwarded to SAFPC.

Per Reserve  Order  HB-0160,  dated  28  Sep  00,  the  applicant  was
reassigned from the Non-obligated,  Non-participating  Ready  Reserves
(NARS) to the Inactive Status List Reserve Section (ISLRS),  effective
25  Sep  00,  for  ineligibility  to  earn  the  required  points  for
retention.

On 14 Mar  01,  HQ  USAF/JAG  found  the  ADB  determinations  legally
sufficient. They recommended to SAFPC that the  applicant  be  removed
from active status and transferred to the  RR.  On  1  May  01,  SAFPC
referred the case back to HQ ARPC/JA so that an OGD  action  could  be
initiated.

On 17 May 01, HQ ARPC/CC advised the applicant that an OGD  was  being
initiated in accordance with Title 10, USC, Section 12771 and AFI  36-
3209, para. 5.14.6, which authorizes a commander to recommended an OGD
be effected where an officer failed to hold the highest grade attained
satisfactorily. The commander  believed  that,  given  the  facts  and
circumstances of the applicant’s case, a recommendation for an OGD was
warranted.

The applicant responded on  11  Jul  00,  maintaining  his  innocence,
asserting he was still pursuing an appeal of the criminal proceedings,
and questioning the propriety  of  the  OGD  action  because  the  ADB
recommended an honorable characterization of service.

On 12 Jul 01, HQ ARPC/JA  advised  HQ  ARPC/CC  that  the  applicant’s
argument regarding the propriety of the OGD action  was  unpersuasive.
All of the misconduct for which he was prosecuted  occurred  while  he
was in a civilian  status.  It  was  deemed  serious  enough  that  it
provided the basis for other adverse administrative  actions  in  both
his federal civilian employment and from his  Reserve  unit.  The  ADB
also determined it significant enough to warrant a recommendation  for
discharge. HQ ARPC/JA added that while they could not know the  reason
the  ADB  recommended  an  honorable  service  characterization,  such
decisions, in cases based solely upon civilian convictions, must  look
at issues other than the reprehensible nature of the crime  committed.
Therefore, HQ ARPC/JA did not believe such a recommendation  detracted
from the propriety of an OGD. They found no legal  impediment  to  the
OGD action and recommended the action be forwarded to the SAF with the
recommendation that, should the applicant be transferred to the RR, it
be in the grade of major.

HQ ARPC/CC forwarded the OGD to SAFPC on 8 Aug  01,  indicating  since
the applicant was recommended for discharge, there was doubt he served
satisfactorily in the grade of LTC. HQ ARPC/CC recommended the highest
grade satisfactorily held be major.

On 24 Aug 01, by direction of the President, the SAF Designee  ordered
the applicant transferred to the RR. The SAF  Designee  further  found
the applicant had not served satisfactorily in the grade of  LTC,  but
had served satisfactorily in the grade of major, and  directed  he  be
transferred to the RR in the grade of major.

As a result, the applicant was transferred to the RR in the  grade  of
major effective 24 Aug 01. He is eligible for retired pay upon age 60.


_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPP asserts  that  the  ADB  is  responsible  for  determining
character of service for the discharge action; however, it is not  the
authority for determining the highest grade  satisfactorily  held  for
the purpose of retirement.  Contrary  to  the  applicant’s  arguments,
there is definitely a rational connection between the facts  found  by
the ADB and the SAF’s determination that the highest  grade  in  which
the applicant served satisfactorily was the grade of major. The  ADB’s
findings can clearly form a basis for the SAF’s determination that the
applicant did not serve satisfactorily in the grade  of  LTC.  Besides
the findings of the ADB, his record contained evidence  his  commander
had issued him an LOR, UIF and referral OPR.  Also,  there  was  press
coverage identifying the applicant as a USAFR officer arrested for and
convicted of willful stalking. Additionally, the applicant’s  security
clearance  was  revoked.  There  is  ample  evidence  that  the  SAF’s
determination was not arbitrary, but was supported by the evidence  of
record. Disapproval is recommended.

A complete copy of the evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel does not dispute the SAF has the authority  to  determine  the
highest grade satisfactorily held or that the ADB had the power  under
law to render a grade  determination.  Rather,  the  SAF’s  delegate’s
decision was arbitrary, capricious and an abuse of discretion  because
the delegate failed to render a rational judgment under Title 10, USC,
Section 12771, in light of  the  findings  and  recommendations  of  a
discharge board examining the same factual circumstances set forth  as
a basis for the grade determination action. The delegate  also  failed
to articulate a rational justification explaining how the satisfactory
service test leads to a determination of unsatisfactory service in the
grade of LTC.


A complete copy of counsel’s response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ  USAF/JAA  asserts  the  decision  whether  an  officer  should  be
discharged and the corresponding service characterization is  separate
from whether that officer served satisfactorily in a particular grade.
The issues are not related. The records do not indicate  why  the  BOI
recommended the applicant receive an honorable  characterization,  but
it is apparent they took into account his 24 years of service, most of
which appears commendable, and determined that on the whole he  served
satisfactorily. The decision as to the officer’s grade at the time  of
retirement is left to the discretion of the SAF or designee.  The  SAF
designee is compelled by law to determine whether  the  applicant  had
served satisfactorily in his highest held  grade.  In  doing  so,  the
designee determined that the applicant’s service as a LTC did not meet
standards, and his decision is clearly justified. It was while serving
in his grade of  LTC  that  the  applicant  committed  the  misconduct
resulting in his discharge. The designee could  legitimately  conclude
that while the applicant’s overall career was honorable,  his  service
in the grade of LTC was not satisfactory. Characterizing an  officer’s
term  of  service  upon  discharge  requires  an  evaluation  of  that
individual’s entire career, to include  periods  wherein  the  officer
performed both satisfactorily and otherwise. There is  no  bright-line
test for the board to apply in formulating a characterization.  A  24-
year career  of  excellent  service  can  outweigh  a  single  act  of
misconduct such that an honorable discharge is  perfectly  acceptable.
Conversely, one  act  of  misconduct  may  be  so  egregious  that  it
overrides the otherwise laudable portions  of  the  officer’s  career,
resulting in a general or other than honorable  discharge.  The  board
members are entrusted with conducting this balancing act by  utilizing
their experience and judgment to arrive at a commonsense and  rational
decision.  The  completely  different  issue  of  determining  if   an
officer’s performance in a particular grade is  satisfactory  requires
the SAF to look only at the period of time the officer held a specific
grade, not at the officer’s entire career. The resolution of discharge
characterization and the OGD are made for different purposes  and  the
outcome  is  independent  of  each   other.   Therefore,   denial   is
recommended.

A complete copy of the additional evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

Counsel asserts that, notwithstanding the incisiveness  of  the  issue
presented in the AFBCMR Staff’s request, HQ USAF/JAA  addressed  other
areas, including the factual background and substantive merits of  the
case, and made crucial errors that  deserve  further  comment.  Merely
pointing  to  the  SAF’s  final  agency  authority  resolves   nothing
important about this  case  because  it  is  the  SAF’s  judgment  (as
exercised through a delegate) that is directly at issue. The  advisory
further sidesteps the issue of whether the  satisfactoriness  standard
is an easier standard to meet than the honorableness standard. Counsel
restates his arguments presented earlier on this  issue.  Essentially,
satisfactoriness is an easier standard to meet than honorableness;  at
a minimum, the satisfactoriness standard could not possibly be  harder
[italics counsel’s] to meet than the honorableness standard. The facts
underlying the grade determination and  the  service  characterization
review were the same, and a panel of senior officers who examined  the
case in an adversarial hearing had found the applicant’s service as  a
LTC to be honorable. Counsel re-emphasizes his  understanding  that  a
grade determination and  a  discharge  characterization  are  distinct
actions; this has never been  in  dispute.  However,  HQ  USAF/JAA  is
incorrect in saying that the two  standards  are  unrelated.  The  two
standards are frequently applied within  the  context  of  a  member’s
departure from an active service status, are set  forth  in  the  same
Reserve discharge regulation and, as  in  this  case,  the  SAF  often
renders a final action on them  simultaneously.  A  discharge  board’s
service characterization itself becomes a relevant fact that  the  SAF
must consider when weighing  “the  substantial  evidence”  in  a  non-
arbitrary and non-capricious manner.  The  advisory  admits  that  the
SAF’s delegate did not give any weight at all to the ADB’s finding  by
positing that it is irrelevant to the issue  of  grade  determination.
Thus, the SAF’s delegate failed to adequately  weigh  the  substantial
evidence. Contrary to HQ USAF/JAA’s speculation, it is  more  probable
that the ADB found the applicant’s service as a LTC honorable  despite
the misconduct also present in  that  grade.  There  is  no  authority
suggesting that the SAF is  immune  from  the  agency  requirement  to
articulate a rational justification for a  decision.  The  SAF  action
memorandum issued was devoid of any justification at all, articulating
only the final  decision  rendered.  Counsel  contends  the  applicant
understands the Air Force’s decision to discharge him and is at  peace
with that decision. The applicant does, however, believe  his  retired
grade should reflect the substantial weight of  the  evidence  in  his
grade determination case and be consistent with the decision  rendered
on the subject of service characterization. This latter point is  well
supported in the law.

Counsel’s complete response 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 OGD should be changed and he be retired in the grade  of
LTC. Counsel’s contentions are duly noted; however,  we  do  not  find
these assertions, in and by  themselves,  sufficiently  persuasive  to
override the evidence of record and the rationale provided by the  Air
Force. The ADB reviewed the applicant’s entire career to determine its
characterization and whether he should be discharged; the SAF designee
considered whether, as a LTC,  the  applicant’s  performance  in  that
particular grade was satisfactory. The applicant was promoted  to  LTC
effective 14 Sep 96 and shortly thereafter in Apr 97, if not  earlier,
complaints of harassment and stalking surfaced. He received an LOR and
referral OPR as a result of his civil conviction in 1998 for stalking.
We agree  with  the  SAF  designee  that  this  misbehavior  does  not
constitute satisfactory service in the grade of LTC, especially  given
how soon it occurred after his elevation to that grade.  If  we  found
anything inconsistent, it is the ADB’s recommendation for an honorable
discharge. Presumably, the ADB concluded that, despite his  misconduct
as a LTC and  the  resultant  civil  conviction  which  supported  his
discharge, the applicant’s military service was honorable. While we do
not necessarily agree with this conclusion, we  are  neither  inclined
nor authorized to take detrimental action against an applicant. In our
view, the applicant’s retirement in the grade of major was appropriate
and legitimate and not inconsistent and arbitrary as counsel contends.
 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 issues 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 10 March 2004 under the  provisions  of  AFI  36-
2603:

                 Ms. Brenda L. Romine, Panel Chair
                 Ms. Ann-Cecile M. McDermott, Member
                 Ms. Kathleen F. Graham, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2003-02431 was considered:

   Exhibit A.  DD Form 149, dated 23 Jun 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ ARPC/DPP, dated 27 Aug 03, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 5 Sep 03.
   Exhibit E.  Letter, Counsel, dated 22 Sep 03.
   Exhibit F.  Letter, HQ USAF/JAA, dated 8 Dec 03.
   Exhibit G.  Letter, AFBCMR, dated 16 Dec 03.
   Exhibit H.  Letter, Counsel, dated 13 Jan 04.




                                   BRENDA L. ROMINE
                                   Panel Chair