RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00087
            INDEX CODE:  131.09

            COUNSEL:  NONE

            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  9 JUL 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Grade Determination (OGD) conducted in 2002 be  set  aside
and he  be  transferred  to  the  retired  Reserve  in  the  grade  of
lieutenant colonel (O-5).
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was innocent of the bad check allegations and  has  provided  major
mitigating factors regarding the travel card charges.  His  submission
should show that the  OGD  action  taken  was  excessive,  unfair  and
deserves to be set aside (refer to  his  former  counsel’s  Brief  for
details).

In support of his request, applicant’s former counsel submits a Brief,
with  attachments.   The   applicant’s   complete   submission,   with
attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Federal Commissioned Service Date (TFCSD) is  31
May 1981.  He was appointed a captain in the  MN  Air  National  Guard
(ANG) and Reserve of the Air Force (ResAF), effective on or  about  15
September 1988, contingent upon  Federal  recognition.   Effective  21
April 1990, while serving in the grade of captain, ANG, ResAF (not  on
extended active duty (EAD)), the applicant, was reappointed from  Line
of the Air Force (Category A) to Judge Advocate (JA) (Category J).  He
was promoted to the grade of lieutenant colonel, (ANG) ResAF,  with  a
promotion service date (PSD) of 26 August 1997 and an  effective  date
of 28 January 1998.

Applicant's profile for the last nine reporting periods follows:

            Period Ending    Evaluation

      (Major)    20 Apr 92   Meets Standards (MS)
            20 Apr 93  MS
            20 Apr 94  MS
            20 Apr 95  MS
            20 Apr 96  MS
            20 Apr 97  MS
      (LtCol)    20 Apr 99   MS
            20 Apr 00  MS
            20 Apr 01  MS

The applicant was awarded the Air Force Commendation Medal (AFCM)  for
meritorious service while assigned to the Office of  the  Staff  Judge
Advocate, Grand Forks AFB, ND, during the period 14 April 1998  to  30
June 2001.

The  following  information  was  extracted  from  the  Officer  Grade
Determination (OGD) documentation.

The applicant was issued a Letter of  Reprimand  (LOR)  on  14 January
2002 for his Government Travel Card  (GTC)-related  misconduct,  which
was placed in an Unfavorable Information File (UIF) established on  18
April 2002.  In April 2002, the applicant began to  be  delinquent  on
payments to his GTC account, which resulted in past due balances.   As
of 3 January  2002,  his  account  balance  was  $1,591.63,  of  which
$1,020.51 was delinquent.  On over 80 occasions between November  2000
and January 2002, the applicant improperly used his GTC  when  he  was
not in any duty status.  In October 2000, he wrote two checks, each in
the amount of  $1,495.47,  to  pay  his  GTC  bill--both  checks  were
dishonored for insufficient funds.

On 25 January  2002,  the  applicant  submitted  his  Application  for
Transfer to the Retired Reserve, AF Form 131, with an  effective  date
of 25 July 2002.

Due to the LOR/UIF action and the GTC-related misconduct upon which it
was based, there was some doubt he served satisfactorily in the  grade
of lieutenant colonel  (O5).   On  21  May  2002,  the  applicant  was
notified that his commander was initiating an OGD action.  On  2  July
2002, the applicant submitted his response to the OGD action.   On  15
July 2002, HQ  ARPC/JA  recommended  the  commander  forward  the  OGD
package through command channels to the Secretary of  the  Air  Force,
with a recommendation to transfer the applicant to the Retired Reserve
in the grade of  major.   On  17 July  2002,  the  HQ  ARPC  commander
forwarded the OGD package to the Secretary of the Air Force  Personnel
Council (SAF/PC), with a recommendation that the  applicant’s  highest
grade satisfactorily held  should  be  that  of  major  (O4).   SAF/PC
considered the applicant’s OGD case on 15 August 2002 and  recommended
he be retired in the lower grade of major.  On 3 September  2002,  the
Director of the Air Force  Review  Boards  Agency,  acting  under  the
authority delegated by the Secretary  of  the  Air  Force,  found  the
applicant did not serve satisfactorily  in  the  grade  of  lieutenant
colonel (O5).  However, he did serve satisfactorily in  the  grade  of
major (O4) and directed that he be retired in that grade.  Approval of
this action did not excuse  any  indebtedness  to  the  United  States
Government.  The applicant was relieved from his  current  assignment,
assigned to the retired Reserve section and placed on the USAF Reserve
retired list in the grade of major, effective 4 September 2002.  He is
eligible for retired pay under 10 USC 12731, except for attainment  of
age 60 [10 January 2019].
_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/JA recommends the application be denied.  JA states that  from
April 2000 until January 2002, the applicant’s government travel  card
(GTC) carried a past due balance.  The applicant’s argument concerning
the number of service members with more than 60 days overdue in paying
their GTC debt is irrelevant as it does not address  what  action,  if
any, was taken against other service members or what the circumstances
were for their delinquencies.  With respect  to  applicant’s  argument
that, while his purchases were not “technically” authorized, they were
made in conjunction with Reserve  duty,  JA  indicates  this  argument
fails because the purchases were  unauthorized  in  every  aspect  and
there was nothing “technical” about the lack of authorization.  As  to
applicant’s claim he relied on the words  of  a  pay  technician  that
certain money would be deposited in his account, JA opines that, while
this may account for one check  to  bounce,  once  one  is  on  notice
insufficient funds exist in an account, one is  obligated  to  confirm
that funds later exist.  The claim that  the  GTC  program  is  poorly
administered and many members are delinquent is irrelevant, as it does
not address the fact that the applicant carried balances for months on
his GTC and had every opportunity to clear those balances.  JA  states
the applicant’s argument that he was  not  court-martialed,  nor  even
offered an Article 15, yet will suffer greatly from reduced retirement
pay, ignores the fact that he committed the  offenses  in  a  civilian
status  and  neither  judicial,  nor   nonjudicial   punishment   were
authorized.  The most severe penalty that could be administered was  a
Letter of Reprimand (LOR).  As  to  the  referenced  cases,  they  are
totally unrelated to the present case and of no significance.  The  HQ
ARPC/JA evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The  applicant  reviewed  the  advisory  opinion  and  indicates   the
Government has inappropriately used, as a basis for his OGD, a  Letter
of Reprimand (LOR)--a tool meant  to  encourage  military  members  to
improve their performance.  There is simply no legal authority to  use
an LOR as a basis for imposing a punishment greater than  one  usually
receives only after a court-martial  or  other  judicial  action.   In
order to retire at the rank of lieutenant colonel (O5), he would  have
had to serve three years  in  that  rank.   The  Government  does  not
dispute he served three years as an O5  honorably  and  capably.   His
date of rank (DOR) was 27 August 1997 and his first  alleged  incident
of inappropriate conduct was October 2000.  He relied on the  word  of
an experienced Air Force pay technician before he wrote the checks  in
question.  In hindsight, he should not have done so.   The  Government
never alleges fraud for any of the conduct used as  a  basis  for  the
OGD.  The Government Travel Charge Card (GTC) bills were all paid  and
the insufficient funds checks were cleared in the same month they were
written.

He served as an O5  for  approximately  38  months  before  the  first
insufficient check incident.  There were 15 months in which there were
charges on his GTC when he was not in the appropriate military status.
 In other words, over 60 percent of his service as an O5  was  without
blemish.  Even the  Government  concedes  that  many  of  the  charges
[Nebraska, Iowa  and  Colorado]  occurred  while  he  was  enroute  to
inactive duty training at Buckley AFB, Colorado.  He  made  a  mistake
for which he has paid  dearly--forced  early  retirement,  loss  of  a
possible promotion to colonel (O6), thousands of dollars in legal fees
and public embarrassment.  Therefore, allowing him to  retire  in  the
grade he earned (O5) does not mean he  will  not  have  paid  for  his
errors in judgment.

The applicant’s complete submission is at Exhibit E.


On 31 March 2005, the Air  Force  Board  of  Correction  for  Military
Records (AFBCMR) provided the applicant with a copy of the Secretarial
Officer Grade Determination  (OGD)  letter,  with  attachments,  which
would be provided to the Board for consideration (Exhibit F).   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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case.
However, we agree with the opinion and recommendation of the Air Force
and adopt the rationale expressed as the basis for our  decision  that
the applicant has failed to sustain his burden that  he  has  suffered
either an error or an injustice.  In view  of  the  above  and  absent
evidence to the contrary, we find no basis to recommend  granting  the
relief sought in this application.
_________________________________________________________________

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 Docket  Number  BC-2005-
00087 in Executive Session on 5 May 2005, under the provisions of  AFI
36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Ms. Sue A. Lumpkins, Member
                  Mr. James W. Russell III, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 22 Dec 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ ARPC/JA, dated 11 Mar 05.
   Exhibit D.  Letter, SAF/MRBR, dated 18 Mar 05.
   Exhibit E.  Letter from Applicant, undated.
   Exhibit F.  Letter, AFBCMR, dated 31 Mar 05, w/atch.




                                   RICHARD A. PETERSON
                                   Panel Chair