RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01015
            INDEX CODE:  126.00
      RORY M. LANEY    COUNSEL:  NONE

      234-80-7436      HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  26 JUNE 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Article 15 he received for violation of  AFI  36-2909,  Professional
and Unprofessional Relationships, be set aside completely.

2.  His highest grade (SMSgt, E-8) and date of rank (DOR) be restored.

3.  His retirement grade and pay be adjusted  appropriately,  and  all  back
pay be restored.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He has always felt  that  his  situation  and  the  case  against  him  were
escalated out of proportion.  As a result, he initially  offered  to  retire
in lieu of punishment in order to save the  Air  Force  time  and  resources
investigating and prosecuting  a  case  that  did  not  require  such  harsh
action.   His  every  attempt  to  have  the  investigation  overturned  was
ignored.  He  and  his  attorney  proved  to  the  commander  there  was  no
inappropriate  relationship  because  no  one  knew  of  the   relationship;
therefore, the  relationship  could  not  affect  the  unit  or  mission  as
required by Air Force Instruction.  No one within the Air Force knew of  the
relationship until after they were married.

Recent similar cases involving high  ranking  officials  resulted  in  their
receiving Article 15 punishment far  less  severe  than  he  received.   His
outstanding 23 year career was cut short,  and  he  is  asking  that  he  be
allowed to reassume the rank he earned and enjoy in  the  retirement  fruits
of his labor for the years he served.

In support of the application, the applicant submits a copy  of  the  Record
of Nonjudicial Punishment Proceedings, a copy of his Appeal  of  Nonjudicial
Punishment with attachments, a copy of  his  rebuttal  to  investigation,  a
copy of an interview transcript, a copy of  his  career  highlights,  and  a
copy of a newspaper article.

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

STATEMENT OF FACTS:

On 18 July 1979, the applicant enlisted in the Regular Air Force.  Prior  to
the events under review, he was  progressively  promoted  to  the  grade  of
Senior Master Sergeant (E-8)  effective  and  with  a  date  of  rank  of  1
December 1999.

The following  is  a  resume  of  his  last  ten  (10)  Performance  Reports
commencing with the report closing 3 December 1993.

            PERIOD ENDING    PROMOTION RECOMMENDATION

             3 Dec 93  5
            23 Nov 94  5
            23 Nov 95  5
            23 Nov 96  5
             1 Sep 97  5
            10 May 98  5
            10 May 99  5
            10 May 00  5
            30 Apr 01  5
            30 Apr 02  2

On 8 March 2002, the applicant received Article 15  punishment  for  failing
to obey a lawful general instruction, to wit:   Air  Force  Instruction  36-
2909, Professional and Unprofessional Relationships, dated 1  May  1999,  by
engaging in an unprofessional relationship with his subordinate.   For  this
incident, he was reduced to the grade of master sergeant (MSgt), with a  new
date of rank of 11 May 2002, and reprimanded.

He retired in the grade of MSgt effective 11 May 2002.   He  had  served  23
years, 6 months, and 13 days on active duty to include  4  years,  5  months
and 14 days of foreign service.

On 9 January 2003, the Secretary of the Air Force found  the  applicant  had
served satisfactorily in the higher grade, and directed he  be  advanced  to
the rank of SMSgt on 17 July 2009.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFLSA/JAJM recommends denial.   JAJM  states  nonjudicial  punishment  is
authorized by Article 15, UCMJ  and  governed  by  the  Manual  for  Courts-
Martial  (Part  V)  and  AFI  51-202.   This  form  of  punishment   permits
commanders to dispose of certain offenses  without  trial  by  court-martial
unless the service member objects.  Service members first must  be  notified
by their commanders of the nature  of  the  charged  offense,  the  evidence
supporting the offense, and of the commander’s intent to impose  nonjudicial
punishment.  The service member may then consult  with  defense  counsel  to
determine whether to accept nonjudicial  punishment  proceedings  or  demand
trail by court-martial.  Accepting the proceedings is  simply  a  choice  of
forum; it is not an admission of guilt.   Nonjudicial  punishment  does  not
constitute a criminal conviction.

JAJM states  AFI  36-2909  establishes  command,  supervisory  and  personal
responsibilities for  maintaining  professional  relationships  between  Air
Force members.  JAJM  explains  relationships  are  unprofessional,  whether
pursued on- or off-duty, when they detract from the authority  of  superiors
or result in, or reasonably create the appearance of favoritism,  misuse  of
office or position, or the abandonment of organizational goals for  personal
interests.  JAJM quotes a “close personal relationship between  officers  or
enlisted members can easily become unprofessional if one member becomes  the
commander, supervisor or rater of the other.”  Furthermore, “differences  in
grade increase the risk that a relationship will be, or  will  be  perceived
to be unprofessional,  because  senior  members  in  military  organizations
normally exercise  authority  or  some  direct  or  indirect  organizational
influence over the duties  and  careers  of  more  junior  members.  ...Once
established, such relationships do not go unnoticed by other  members  of  a
unit.”  JAJM affirms the formation  of  relationships  involving  dating  or
courting “between superiors  and  subordinates  within  the  same  chain  of
command or supervision is prohibited because such  relationships  invariably
raise the perception of favoritism or misuse of position and  erode  morale,
discipline and unit cohesion.”

JAJM opines the applicant’s claim that no one within the Air Force  knew  of
his relationship until after he was married lacks merit.   JAJM  notes  this
claim was not raised during his Article 15 proceedings when  witnesses  were
available and memories were fresh.  Also, the  claim  that  no  third  party
knew of the relationship is defeated by the applicant’s own  evidence.   His
written presentations during the Article  15  proceedings  argued  that  the
relationship had no effect on the squadron, but  did  not  assert  that  the
relationship was unknown.  A witness statement provided  on  behalf  of  the
applicant suggests that the witness was aware of the  relationship  but  was
not bothered by it.  JAJM construes even if the applicant’s  assertion  that
no one in the Air Force knew about the relationship until the marriage  were
true, it would not alter the fact that, during the specified timeframe,  the
applicant was engaged in an unprofessional relationship with  a  subordinate
while he was the Squadron Superintendent.

JAJM notes  the  applicant’s  claim  that  similar  cases  involving  higher
ranking members have resulted in less  severe  punishments  similarly  lacks
merit.  Congress has designated two officials with  the  responsibility  for
determining an appropriate nonjudicial punishment:  the  commander  and  the
appeal authority.  As  long  as  they  act  lawfully  within  the  scope  of
authority granted by them by law, their judgment  should  not  be  disturbed
simply because a different  punishment  might  be  imposed  under  different
facts.  JAJM states commanders “on the scene” have first-hand access to  the
facts and a unique appreciation for the needs of morale  and  discipline  in
their command.  JAJM concludes a reduction in rank is within  the  range  of
lawful punishments, and the applicant provides no evidence  that  there  was
error or  injustice  in  the  administration  of  the  Article  15.   JAJM’s
evaluation is at Exhibit C.

HQ AFPC/DPPPWB recommends denial.  DPPPWB states the demotion  action  taken
against the applicant was procedurally correct  and  there  is  no  evidence
there were any irregularities or  that  the  case  was  mishandled.   DPPPWB
states basic promotion policy is to advance only those individuals who  have
clearly  demonstrated  the  potential  for  more   responsibility.    DPPPWB
explains of those airmen who show this potential  for  promotion,  only  the
best qualified may be promoted  due  to  limited  grade  vacancies.   DPPPWB
opines promotion  selection  is  not  a  reward  for  past  performance  but
necessary in order for the Air Force to complete  its  mission  requirements
and  responsibilities.   DPPPWB   explains   Air   Force   policy   requires
individuals selected to MSgt and SMSgt serve in these grades for  two  years
before they may retire.  Promotions are based  on  vacancies  and  as  such,
individuals selected for the top three  grades  must  fulfill  the  two-year
commitment.  Until a member satisfies this responsibility,  he/she  may  not
assume the higher grade.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were  forwarded  to  the  applicant  for
review and comment on 10 June 2005.   As  of  this  date,  this  office  has
received no response (Exhibit E).

_________________________________________________________________

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.

      a.  Evidence has not been presented which would  lead  us  to  believe
that the nonjudicial punishment, imposed on 15  March  2002,  was  improper.
In cases of this nature, we are not inclined to  disturb  the  discretionary
judgments  of  commanding  officers  absent  a  showing  of  abuse  of  that
authority.  We have no  such  showing  here.   The  reason  the  nonjudicial
proceedings were initiated against the applicant are clearly stated  in  the
records.  While the applicant’s service was exemplary,  this  does  not,  in
our opinion, excuse or overcome the seriousness of the misconduct for  which
he was punished.  Accordingly, we agree with the  assessment  of  AFLSA/JAJM
and find that the evidence provided does not provide  an  appropriate  basis
for favorable consideration of the applicant’s request.

      b.  Since the applicant’s  request  for  restoration  of  his  highest
grade (SMSgt, E-8), retirement grade and pay adjustment, and  all  back  pay
restored is dependent on the removal of the Article 15 punishment,  we  find
no basis to favorably consider these requests.

_________________________________________________________________

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  Docket  Number  BC-2005-00731
in Executive Session in Executive Session  on  18 October  2005,  under  the
provisions of AFI 36-2603:

                 Ms. Charlene M. Bradley, Panel Chair
                 Ms. Renee M. Collier, Panel Member
                 Mr. Richard K. Hartley, Panel Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 15 Feb 05 w/atchs.
      Exhibit B.  Applicant’s Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 6 May 2005.
      Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 17 May 05.
      Exhibit E.  Letter, SAF/MRBR, dated 10 Jun 05.


      CHARLENE M. BRADLEY
      Panel Chair