ADDENDUM TO
                            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
      XXXXXXXXXXXXXXXX COUNSEL:  Charles W. Gittins

      XXXXXXX    HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  9 Aug 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

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.

The Article 15 punishment imposed on him under Article 15 on      7  Nov  97
be set aside.

_________________________________________________________________

RESUME OF CASE:

On 20 Oct 04, the Board considered and denied  the  requests  stated  above.
The Board also considered and granted the applicant’s request  to  void  the
OPR rendered on him for the period 16 Jul 96 to 15 Oct 97.  After  receiving
the  Board’s  decision,  applicant’s  counsel  noted  that  a  key  document
considered by the Board was a SAFPC memorandum, dated  22  Jul  98.   AFBCMR
records indicate the document was mailed to counsel on 2 Jun  04.   However,
after receiving the Record of Proceedings, dated  17  Nov  04  (Exhibit  K),
counsel responded in a 7 Dec 04 letter (Exhibit L) that neither he, nor  the
applicant, ever received the SAFPC  memorandum  and,  thus,  never  had  the
opportunity to respond to the discrepancies contained  within.   A  copy  of
the SAFPC memorandum  was  again  mailed  to  counsel  on  14  Dec  04.   In
response,  counsel  submitted  a  “report”  of  factual  discrepancies   and
requested the Board convene a new and  different  panel  to  reconsider  its
earlier decision (Exhibit N).

In his submission counsel notes that SAFPC  in  their  memorandum  correctly
identifies the allegations against the applicant.  However, he  states  that
SAFPC inaccurately concludes the applicant must have admitted guilt  because
he accepted responsibility and apologized.  Counsel states this is not  true
and was the reason the applicant requested  a  personal  appearance  in  the
Article 15 action.  Counsel states the applicant made it perfectly clear  he
was “not guilty” of the offenses accused and as  a  result  the  Article  15
authority completely struck two  of  the  alleged  offenses  and  materially
altered the remaining allegation to allege the applicant violated  paragraph
5.1.3 of AFI 36-2909 by repeatedly soliciting the female NCO to come to  his
room.  Counsel further states that SAFPC expressed their  confusion  in  the
statement that “for reasons not  clear  from  the  case  file,  respondent’s
commander determined that respondent had only committed one of the  offenses
alleged against him….” Counsel opines that if SAFPC  had  investigated  this
matter, “rather than speculating,”  they  would  have  determined  that  the
reasons for the actual findings related to the applicant’s  presentation  at
his personal appearance.

Counsel opines that even as the commander finally framed it,  by  repeatedly
soliciting the female NCO to come to  a  dorm  room  did  not  constitute  a
violation of AFI 36-2909.  Counsel states the applicant did not violate  the
Air Force instruction because he did not date or engage in sexual  relations
with the NCO as the AFI stipulated as a violation.  Counsel argues  that  in
military law a punitive regulation, like a penal statute, is to be  strictly
construed.  Conduct of a similar nature to the  proscribed  conduct  is  not
sufficient to constitute a violation of the punitive regulation.  He  argues
that the evidence demonstrates that the applicant neither engaged in  sexual
relations  nor  dated  the  NCO  and,  therefore,  did   not   violate   the
proscriptions of AFI 36-2909.  Therefore, the  Article  15  and  involuntary
discharge must be set aside.

Counsel  argues  that  the  SAFPC  memorandum  related  the   reasons   they
recommended the applicant retire in the  lower  grade  of  major.   However,
since the recommendation was rejected  and  the  applicant  was  allowed  to
retire  in  the  grade  of  lieutenant  colonel  with   no   reason   given,
consideration of this information by the SAFPC was improper. Counsel  states
the  applicant  was  never  provided  the  opportunity  to  address  SAFPC’s
allegations and  that  SAFPC  “apparently  sought”  to  hold  the  applicant
responsible for misconduct allegedly  committed  by  others  and  for  which
there is no evidence he was involved or had knowledge  of  such  misconduct.
Counsel opines, “it is  likely”  that  the  SECAF  designee  identified  the
effort to “tar” the applicant with the conduct of others when he refused  to
let the applicant retire in the lower grade.

Counsel further argues that SAFPC argues, without supporting evidence,  that
the  applicant  “sanctioned  the  misconduct”  of   subordinates.    Counsel
requests that they be provided any evidence relied on by the Board  that  is
claimed to support “this specious and entirely false” allegation.

Counsel’s complete submission is at Exhibit N.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  After reviewing counsel’s response to the SAFPC  memorandum,  the  Board
still does not find sufficient evidence of an error or injustice  warranting
the relief requested.  We do not find counsel’s basis  for  requesting  that
this case be reviewed by a “new and different  panel”  sufficient  to  grant
his  request.   In  accordance  with  the  Board’s  established  procedures,
requests for  reconsideration  are  normally  returned  to  the  panel  that
originally considered the case, with new members  substituted  as  necessary
when the original members are no longer assigned to the Board.

2.  We also do not agree with counsel’s assertion that the Board should  not
consider some of the content of the  SAFPC  memorandum  in  considering  the
merits of applicant’s request.   We  note  that  while  counsel  states  the
applicant was never afforded the opportunity to respond to  the  allegations
contained in the SAFPC memorandum; neither applicant nor  counsel  has  been
precluded from submitting such evidence and  response  to  this  Board.   We
further note that while counsel has interpreted the decision by  the  “SECAF
designee”  to  allow  the  applicant  to  retire  in  the  higher  grade  as
reflecting favorably on the applicant regarding the allegations that led  to
the Article 15 and discharge  action,  there  is  insufficient  evidence  to
support such a position.  If we were to speculate, as counsel has, we  would
find it just  as  likely  this  decision  was  made  on  the  basis  of  the
applicant’s overall career or in keeping  with  decisions  made  in  similar
cases, rather than the alleged misconduct  in  question.   Counsel  has  not
raised any new issues and has  not  presented  sufficient  new  evidence  to
support his view regarding the legitimacy of the Article  15  and  discharge
actions.  We believe the Board has  previously  adequately  addressed  these
actions.  Therefore, we find no basis to recommend granting  the  additional
relief sought in this request for reconsideration.

3.  It still has not been shown that a personal appearance with  or  without
counsel will materially add to our understanding of the issues  involved  in
this case.  Therefore, the request for a  hearing  is  still  not  favorably
considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 30 March 2005, under the provisions of AFI 36-2603:

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

The following additional documentary evidence was considered:

      Exhibit K.  Record of Proceedings, dated 17 Nov 04,
                with Exhibits.
      Exhibit L.  Counsel’s Letter, dated 7 Dec 04.
      Exhibit M.  Letter, AFBCMR, dated 14 Dec 04.
      Exhibit N.  Counsel’s Letter, dated 9 Feb 05, with
                attachments.



                                   DAVID C. VAN GASBECK
                                   Panel Chair