RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03845;
                                 98-03257
            INDEX NUMBER:  111.00; 113.00
      XXXXXXXXXXXXXX   COUNSEL:  Charles W. Gittins

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for  the  period
16 Jul 96 to 15 Oct 97, be removed from his records.

All information relating to discharge actions initiated  against  him
be removed from his records.

His Mandatory Separation Date (MSD) be adjusted  for  the  period  he
served in the Retired Reserve from the date of  his  discharge,    15
Mar 98 through 17 May 02, his original MSD, in order to permit him to
complete the time he lost from the Reserves.

Based on rebuttal submitted by counsel, applicant is also  requesting
reconsideration of the AFBCMR’s  30  May  00  decision  to  deny  his
request to set aside the punishment imposed on him under  Article  15
on 7 Nov 97.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel in a 15-page brief outlines the applicant’s case.
 He  provides  the  background  of  the  incident  that  led  to  the
applicant’s problems.  He discusses the Article 15  received  by  the
applicant and his commander’s determination that  the  applicant  did
not commit the offenses as alleged and the commander’s decision  that
the applicant only committed a  less  serious  offense  involving  no
sexual misconduct.   He  asserts  that  the  applicant  accepted  the
revised Article 15, in part, because he was advised that  no  further
action would be taken against him. Counsel opines  that  six  serious
errors marred the action against the applicant  and  denied  him  due
process under the governing regulation.

         a.  The  Letter  of  Reprimand  received  by  the  applicant
punished him for unprofessional  relationships  (plural)  with  other
female enlisted members (plural) in the unit.

        b.  Civilian and military counsel were denied access  to  all
evidence against the applicant.

        c.  The applicant accepted the  Article  15  because  he  was
informed that the whole thing was finished, meaning that  no  further
action would be taken.

        d.  The  commander  recommended  the  applicant’s  separation
under a provision of AFI 36-3209 that had changed  by  the  time  the
applicant was discharged.

         e.  The  basis  for  the  commander’s   recommendation   for
separation was improper because the commander  had  previously  found
the applicant not guilty of  the  allegations  “attempted  sex  acts”
during the Article 15 proceedings.

Since the applicant was  erroneously  retired,  he  has  been  denied
approximately four years and two months of Ready Reserve service.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 17 May 74, the applicant was commissioned in the Air Force Reserve
as a second lieutenant.  He was progressively promoted to  the  grade
of lieutenant colonel on 7 Mar 92.

On 6 Aug 97, the applicant was  notified  by  his  commander  of  his
intent to punish him under Article 15 for  wrongfully  attempting  to
engage in sexual intercourse with an enlisted female  and  repeatedly
soliciting her to come to his dorm  room,  wrongfully  attempting  to
engage in sexual intercourse with an enlisted female in the  presence
of other officers, which constituted conduct  unbecoming  an  officer
and gentleman, and wrongfully placing the foot of an enlisted  female
in his mouth in the presence of other officers and enlisted  members,
which also constituted conduct unbecoming an officer  and  gentleman.
After  consulting  counsel,  the  applicant   accepted   Article   15
proceedings and elected to submit a written presentation.  On 11  Sep
97, his commander determined that he had only committed  the  alleged
offense of soliciting an enlisted female to come to  his  room.   The
commander imposed punishment consisting of forfeiture of    $2,564.40
per month for two months and a  reprimand.   The  applicant  did  not
appeal the punishment and the Article 15 was filed in his unfavorable
information file (UIF).

On 9 Jan  98,  HQ  ARPC  initiated  administrative  discharge  action
against the applicant for the above  offense.   On  15  Jan  98,  the
applicant submitted  an  application  for  transfer  to  the  Retired
Reserve in lieu of administrative discharge, requesting an  effective
retirement date of 15 Mar 98.  On 11 May 98, ARPC/CC recommended that
the applicant’s request be  approved.   On  9  Jun  98,  HQ  USAF/JAG
determined that the applicant’s request was legally  sufficient.   On
22 Jul 98, the Secretary of the Air Force Personnel  Council  (SAFPC)
considered the case  and  concluded  that  the  applicant  should  be
allowed to transfer to the Retired Reserve in lieu of  administrative
discharge.  SAFPC also conducted an officer grade determination (OGD)
to determine the grade in which the applicant should  be  allowed  to
retire.  They recommended that the applicant retire in the  grade  of
major.  However, the Director of the Air Force Review  Boards  Agency
determined that the applicant served satisfactorily in the  grade  of
lieutenant colonel and should retire in that grade.

With the exception of the OPR rendered  for  the  period  16  Jul  96
through 15 Oct 97, the applicant’s  OPRs  were  all  rated  as  meets
standards.  The OPR closing 15 Oct 97 was marked as  “Does  Not  Meet
Standards” in the performance factor “Judgment and  Decisions.”   The
OPR was referred to the applicant on 6 Dec 97.

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/DPM recommends that the OPR rendered on the  applicant  for  the
period 16 Jul 96 through 15 Oct 97 be removed from his records due to
the following errors:

        a.  Failure to state  the  underlying  conduct  or  behavior,
which resulted in the applicant’s Article 15, in violation of AFI 36-
2406, paragraph 3.9.1.2.2.

        b.  Failure to state the specific  reason  for  the  referral
OPR, in violation of AFI 36-2406, Figure 3.1.

        c.  The additional  rater’s  decision  not  to  consider  the
applicant’s comments received one day after  the  required  suspense,
given that the OPR was not signed until several weeks later.

They  recommend  denial  of  the  applicant’s  request  to  have  all
information relating to his discharge removed from his records or  to
adjust his MSD.  They provide an opinion from ARPC/JA,  which  states
that discharge proceedings against the applicant  were  initiated  in
accordance with the appropriate provisions of AFI 36-3209, Separation
and Retirement Procedures  for  Air  National  Guard  and  Air  Force
Reserve Members, dated 1 Oct 95.  The applicant requested transfer to
the Retired Reserve in  lieu  of  administrative  discharge  and  was
allowed to retire  as  a  lieutenant  colonel.   The  fact  that  the
separations AFI was later revised and certain  paragraphs  renumbered
does not affect the legal sufficiency of the discharge action against
him, or his transfer to the Retired Reserve.

The complete evaluation, with attachment, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded to the Air  Force  evaluation.   Counsel  indicates
that they take no issue with the recommendation  to  remove  the  OPR
closing 15 Oct 97.  However, regarding the discharge action initiated
against the applicant, counsel  opines  that  the  evaluation  writer
fails to grasp the fundamental  errors  relating  to  the  discharge.
Counsel discusses wording in AFI 36-2909, which applicant was accused
of violating and how the action by the commander striking out  sexual
language originally contained in the Article 15  made  it  impossible
for the applicant to have  violated  AFI  36-2909,  paragraph  5.1.3.
Counsel further asserts that because the  instruction  cited  in  the
reprimand imposed on the applicant under Article 15 was not in effect
at the time of the applicant’s alleged misconduct and  there  was  no
paragraph  5  as  referred  to,  the  reprimand  was  in  error   and
constituted an erroneous basis for the discharge action  subsequently
initiated against the  applicant.   Counsel  also  asserts  that  the
reprimand imposed on the applicant under Article  15  admonishes  the
applicant for misconduct that the commander had already  struck  from
the specification and entered a finding of “not guilty.”

Counsel opines that the legal errors that pervade the Article 15  and
subsequent discharge process are material and  prejudicial  requiring
that the applicant receive the requested relief.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE INFORMATION:

Based on counsel’s rebuttal, it was determined that  a  copy  of  the
memorandum prepared by the SAFPC when it considered  the  applicant’s
case would be reviewed by  the  Board  and  should  be  furnished  to
applicant’s counsel.  It  was  also  determined  that  an  additional
advisory should be requested.

The SAFPC Memorandum lays out their findings and rationale for  their
conclusion to allow the applicant to transfer to the Retired Reserves
in lieu of administrative discharge and their recommendation that the
applicant be retired in the grade of major vice his current grade  at
the time of lieutenant colonel.

The SAFPC memorandum is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s  request,  AFRC/JAJ  provided  an  additional
evaluation of the applicant’s appeal based on counsel’s rebuttal.
In the additional evaluation, AFRC/JAJ notes that  although  AFI  36-
3209 was revised and the  paragraph  cited  in  the  notification  of
discharge renumbered, the language of the paragraph  in  the  revised
version is unchanged  from  the  earlier  one.   The  fact  that  the
paragraph was renumbered does not affect  the  legal  sufficiency  of
either the discharge action or the applicant’s subsequent transfer to
the Retired Reserve.  The applicant also complains that the discharge
action against him was based upon misconduct that had been alleged in
the Article 15 action, but later withdrawn.  However,  the  commander
imposing the Article 15 did find that the applicant had violated  the
fraternization proscription of AFI 36-2909.  The  fact  that  certain
words or phrases contained in the original Article 15  specifications
were  deleted  by  the  commander,   and   the   conduct   unbecoming
specification  completely  withdrawn,  clearly  shows  the  commander
considered matters submitted  by  the  applicant  in  determining  an
appropriate punishment.  AFRC/JAJ also points  out  that  Article  15
action is an administrative, not a  criminal  proceeding.   Therefore
counsel’s  assertion  that  withdrawal  of  the   specifications   is
tantamount to a finding  of  “Not  Guilty”  is  both  inaccurate  and
misleading.  They also note that the applicant  did  not  appeal  the
action.  Therefore the discharge action  was  founded  on  sufficient
evidence.  The applicant had a  right  to  respond  to  the  proposed
discharge action and could have included comment on the withdrawal of
specifications from the Article 15.  However he chose not to do so.

Counsel argues in his rebuttal that the Article 15 action must be set
aside in its entirety because the action “refers to a violation of  a
non-existent regulation.”  Counsel also  argues  that,  “because  the
discharge action  was  premised  upon  the  alleged  violation  of  a
regulation that does not exist, the  discharge  action  must  be  set
aside.”  AFRC/JAJ  considers  this  argument  deceptive.   While  the
reprimand did cite an incorrect date (1  Oct  95)  of  the  AFI,  the
Article 15 specification, upon which the  reprimand  was  based,  did
reflect the correct version of the AFI (1 May 96) that the  applicant
was found to  have  violated.   The  incorrect  date  was  simply  an
administrative error that in no way affected the legal sufficiency of
the Article 15 action.  Since the discharge action was premised  upon
a valid Article 15 action,  the  basis  for  discharge  likewise  was
legally sufficient.

The complete additional evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S  REVIEW  OF   ADDITIONAL   AIR   FORCE   EVALUATION   AND
INFORMATION:

Counsel provided a five-page response to  the  Additional  Air  Force
evaluation.  No reference was made to the SAFPC memorandum.   Counsel
states that in paragraph 2a of their evaluation, AFRC/JAJ provides  a
misleading recitation of some  facts  and  is  incorrect  in  others.
Counsel indicates the applicant was charged with violation of a  very
specific paragraph of Air Force Instruction 32-2909, paragraph 5.1.3.
 This paragraph states  that  officers  will  not  engage  in  sexual
relations with or date enlisted members.   The  reference  to  sexual
relations  was  struck  from  the  specifications  by  the   imposing
commander and only  left  the  statement  “by  repeatedly  soliciting
Technical Sergeant A.F. to come to your dorm room.”   Counsel  opines
that paragraph 5.1.3 provides no prohibition of  solicitation  of  an
enlisted person to come to a dorm room.   Conversely,  unsuccessfully
soliciting someone to come to a dorm room does not cause a  violation
of the regulation because there  was  no  date.   Counsel  references
cases, which he states illustrate that under military law, violations
of punitive regulations  like  penal  statutes  are  to  be  strictly
construed.  Counsel opines that the evidence in this  case  does  not
support a violation of the charged provision of  the  regulation  and
the Article 15 must be set aside.  Counsel also  indicates  that  the
evaluation is incorrect in stating that the applicant did not  appeal
the punishment and discusses actions taken by the applicant to appeal
the punishment.

Next counsel discusses the separation proceedings  initiated  against
the applicant.  He states that nowhere in the notification action was
any particular edition of the instruction cited.  He then points  out
that the instruction was revised  prior  to  the  applicant’s  actual
discharge  and  would  have  governed  the  discharge,  reasons,  and
procedures.  Therefore, counsel  opines,  the  applicant’s  discharge
pursuant to the authority of  the  cited  instruction  was  improper.
Counsel further discusses how the  cited  paragraph  in  the  revised
instruction refers to  a  highly  prejudicial  basis  for  discharge,
homosexual acts.  Counsels discusses how this leads  to  a  factually
inaccurate and illegal conclusion, which is prejudicial to the rights
of the applicant.

Counsel discusses why the AFRC/JAJ advisory  is  incorrect  in  their
view that the revision of AFI 36-2909, subsequent to  the  initiation
of administrative discharge proceedings against the  applicant,  does
not affect the legal sufficiency of the discharge.  He concludes  the
new instruction became effective while the  applicant  was  still  on
active duty and  responding  to  notifications.   Therefore,  a  fair
reading of the  applicable  discharge/retirement  orders  reflect  an
erroneous factual basis for involuntary separation from the Air Force
and one considered abhorrent to the majority of a moral United States
society.

Counsel opines that the statement  by  AFRC/JAJ  that  the  commander
imposing the Article 15 did  find  the  applicant  had  violated  the
fraternization proscription of AFI-2909 is intentionally false.   The
applicant was alleged to have violated a very specific  provision  of
the Air Force instruction  concerning  unprofessional  relationships,
not a fraternization prohibition.  Fraternization was neither alleged
nor mentioned in any of the relevant documents.  Counsel opines  that
after the commander excised all the words relating to sexual conduct,
only  the  nonsensical  allegation  that  the  applicant  violated  a
“dating”  proscription,  by  allegedly  repeatedly   soliciting   the
enlisted member to come to his dorm room, remained.   Counsel  opines
that a rejected invitation is not fraternization  or  dating.   Since
fraternization has nothing to do with the applicant’s  case  and  was
not supported by any finding  on  the  part  of  the  commander,  the
Article 15 and discharge processing on which it is based must be  set
aside.

Counsel discusses how the date of the regulation  referenced  in  the
reprimand is incorrect and is different from the incorrect regulation
referenced in the Article 15.  Counsel points out that the regulation
referenced in the reprimand does not even have a paragraph 5.1.3.

Counsel’s complete response is at Exhibit J.

_________________________________________________________________

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.  Sufficient relevant evidence has been  presented  to  demonstrate
the existence of error or injustice regarding the applicant’s request
to void the OPR rendered on him closing     15  Oct  97.   We  accept
ARPC/DPM’s determination the OPR violates AFI 36-2402,  dated  1  Jul
96, the instruction in effect at  the  time  the  OPR  was  rendered.
However, we note the OPR became a matter of record on 2  Feb  98  and
the applicant was transferred to the retired reserve  on  15  Mar  98
after approval of his voluntary request.  Consequently, the  OPR  was
never considered in the promotion process  and  requires  no  further
action beyond its removal from the applicant’s  records.   Therefore,
we recommend his records only be corrected to  the  extent  indicated
below.

4.  Insufficient relevant evidence has been presented to  demonstrate
the  existence  of  error  or  injustice  regarding  the  applicant’s
requests pertaining to  the  removal  of  all  information  from  his
records related to the discharge action  initiated  against  him  and
adjustment of his mandatory separation date.  We took notice  of  the
applicant's complete submission in judging the merits  of  the  case;
however, we agree with the opinions and recommendations  of  the  Air
Force offices of primary responsibility and adopt their rationale  as
the primary basis for our conclusion that, with the exception of  the
OPR closing 15 Oct 97, the applicant has not been the  victim  of  an
error or injustice.  Additionally, we believe the rationale put forth
in the SAFPC  Memorandum,  dated  22  Jul  98,  which  addressed  the
applicant’s request to transfer to the retired reserve in  the  grade
of lieutenant colonel, provides further  justification  to  deny  the
relief sought in this application.  Although SAFPC  agreed  with  the
applicant’s chain of command  on  his  request  to  transfer  to  the
retired reserve, they determined he should be retired  in  the  lower
grade of  major.   The  Director,  Air  Force  Review  Boards  Agency
subsequently determined the applicant should be retired in the  grade
of lieutenant colonel.  Although counsel now argues the merits of the
administrative discharge action initiated against the  applicant,  we
note the applicant voluntarily requested retirement and  elected  not
to contest the  discharge  action.   Therefore,  in  the  absence  of
evidence to the contrary, we find no compelling  basis  to  recommend
granting this portion of the relief sought in this application.

5.  We further note applicant’s counsel stated this appeal “is not  a
request for reconsideration of the Board’s  decision  of     30  June
2000” to deny the applicant’s request to have the punishment  imposed
upon him under Article 15  set  aside.   However,  we  find  much  of
counsel’s arguments related to this very issue.  As such, we  do  not
find that the evidence submitted  with  this  application  meets  the
criteria for reconsideration of the  Board’s  earlier  decision.   We
also believe  the  Board’s  position  on  this  issue  is  adequately
supported by the rationale previously provided.

6.  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  the  Field  Grade
Officer Performance Report, AF Form 707A, rendered for  the  period  16
Jul 96 through 15 Oct  97,  be  declared  void  and  removed  from  his
records.

_________________________________________________________________

The following members of the Board considered Docket Number  BC-2003-
03845 in Executive Session on 12 May 2004 and 20 October 2004,  under
the provisions of AFI 36-2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Mr. Jean A. Reynolds, Member
      Mr. Richard A. Peterson, Member

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

     Exhibit A.  DD Form 149, dated 10 Nov 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, HQ ARPC/DPM, dated 9 Feb 04,
                 w/atch.
     Exhibit D.  Letter, SAF/MRBR, dated 20 Feb 04.
     Exhibit E.  Letter, Counsel, dated 17 May 04.
     Exhibit F.  Memorandum, SAFPC, dated 22 Jul 98, w/atch.
     Exhibit G.  Letter, AFBCMR, dated 2 Jun 04.
     Exhibit H.  Memorandum, AFRC/JAJ, dated 16 Aug 04.
     Exhibit I.  Letter, AFBCMR, dated 17 Aug 04.
     Exhibit J.  Memorandum, Counsel, dated 9 Sep 04.




                                   DAVID C. VAN GASBECK
                                   Panel Chair

AFBCMR BC-2003-03845


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 XXXXXXXX, XXXXXXX, be corrected to show that the
Field Grade Officer Performance Report, AF Form 707A, rendered for
the period 16 Jul 96 through 15 Oct 97 be, and hereby is, declared
void and removed from his records.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


                          DATE:    12     May     04



                               _______________

MEMBERS PRESENT:

Mr. David C. Van Gasbeck, Panel Chair
____________________________________

Mr. Jean A. Reynolds, Member
____________________________________    CODE:

Mr. Richard A. Peterson, Member   CASE NO.: 1
____________________________________
_______



TYPE OF MEETING: FORMAL            EXEC SESSION  X
                                               _____
  ____

EXAMINER:                  Al                 Walker



APPLICANT:     XXXXXXXXXXXX                    SSAN:
XXXXXXX
                           _________________________
______________

DOCKET NUMBER:  BC-2003-03845

DECISION           OF           THE           BOARD:
_______________________________________________

_____________________________________________________
_________________
Partial Grant.  Remove OPR, deny all other requests.
_____________________________________________________
_________________

_____________________________________________________
_________________

_____________________________________________________
_________________

RATIONALE:
_____________________________________________________
_____

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___________________________________
                                        EXAMINER