ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2001-00377
INDEX CODE: 129.04,
106.00
COUNSEL: None
HEARING DESIRED: Yes
_________________________________________________________________
APPLICANT REQUESTS THAT:
In his original application, the applicant requested that his
dismissal on 15 Nov 99 be set aside and he be allowed to retire on
that date in the grade of lieutenant colonel (LTC). In his request
for reconsideration, he now asks that he be retired in the grade of
major, with a simple fine or time served, and be afforded a
Presidential Pardon in accordance with the Constitution, Article 11,
Section 2.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant was a LTC with a date of rank (DOR) of 1 Sep 94. On 25
Sep 96, he was charged with misconduct involving a senior airman (SRA)
H and an SRA D. Charge 1 included two specifications of
fraternization and one specification of adultery; Charge 2 included
two specifications of conduct unbecoming an officer and a gentleman.
On 25 Sep 96, an investigating officer (IO) was appointed to conduct
an Article 32 investigation of charges against the applicant. The
IO’s Report of Investigation (ROI) recommended court-martial, rather
than administrative action or non-judicial punishment, in part because
he believed the evidence and the credibility issues required a court-
martial’s impartial review. The IO recommended that all Charges and
Specifications be referred to a general court-martial except for
Charge 1, Specification 2, which pertained to the applicant’s conduct
with SRA D. The IO recommended its dismissal because of lack of
reasonable grounds to conclude the applicant violated the then-
existing customs for behavior of Air Force officers at McConnell AFB.
However, after legal review, the convening authority referred all
Charges and Specifications for general court-martial.
On 26 Nov 96, the applicant requested retirement in lieu of court-
martial. At this time, he had approximately 18 years and 7 months of
active duty. On 30 Nov 96, the 15th Air Force (15AF) commander
advised the applicant he would not recommend retirement and returned
the application without action until completion of the court-martial.
On 5 Dec 96, a general court-martial found the applicant guilty of two
amended specifications of fraternization, one specification of
adultery, and two amended specifications of conduct unbecoming an
officer. The applicant had pled not guilty to all Charges and
Specifications. He was sentenced to confinement for three months and
dismissal.
The Article 32 ROI, Record of Trial (ROT) transcript and the summary
of the Charges, Specifications, Pleas and Findings are at Exhibit B.
On 21 Feb 97, the applicant submitted a clemency package to the 15AF
commander, asking that the dismissal be changed to a fine of between
$5,000-10,000. The 15AF commander declined to grant clemency and
approved the sentence as adjudged on 5 Mar 97.
On 11 Feb 99, the Air Force Court of Criminal Appeals (AFCCA) reviewed
the applicant’s appeal, modified the findings, but affirmed the
sentence adjudged. AFCCA faulted the military judge for failing to
review materials in camera which may have indicated SRA H was not
credible. The AFCCA obtained and reviewed the material and noted
that, contrary to the applicant’s expectations, the inquiry officer’s
findings were “inclusive,” not that SRA H was not credible. The AFCCA
did not find error, or anything more than harmless error, in the
military judge’s instructions. The sentence was found appropriate;
however, the automatic pay and allowances forfeitures that were
collected were improper and would be restored. This was because the
AFCCA could not conclude with any certainty that the applicant had
fraternized with SRA D after 1 Apr 96. According to Article 58b of
the UCMJ, if at least one of the offenses an accused was convicted by
general court-martial of committing occurred on or after 1 Apr 96, and
the sentence included a punitive discharge and confinement, the
accused would automatically forfeit all pay and allowances during
confinement. The AFCCA further noted that an accused cannot be
convicted of fraternization under Article 134 and conduct unbecoming
an officer under Article 133 for the same underlying conduct. Where
the misconduct alleged in the specifications is identical, the
fraternization offense is dismissed. Since the fraternization offense
with SRA D alleged more specific acts of misconduct than did the
conduct unbecoming an officer offense, the AFCCA set aside the conduct
unbecoming an officer offense.
As a result of the AFCCA review, the findings of guilty of
Specification 1 of Charge I (fraternization with SRA H) and
Specification 2 of Charge II (conduct unbecoming and officer with SRA
D) were set aside and dismissed, all forfeitures already collected
were to be restored, and the sentence was affirmed.
On 22 May 99, the applicant applied for retirement in the grade of LTC
under the provisions of the Temporary Early Retirement Authority
(TERA). [See Statement of Facts in Exhibit H for TERA information.]
At this time, he had approximately 21 years of active duty. On 11 Aug
99, the AMC vice commander recommended that the court-martial sentence
of dismissal be executed and, if not, that the applicant not be
allowed to retire in the grade of LTC. The vice commander indicated
that the applicant served less than three years as a LTC and his
misconduct spanned for more than half that time.
On 13 Sep 99, the Secretary of the Air Force (SAF) Personnel Board
recommended the applicant be dismissed from the service, but if he was
allowed to retire, it be in the grade of major. On 19 Oct 99, the SAF
denied the applicant’s request for retirement and directed his
dismissal.
On 15 Nov 99, the applicant was dismissed from the Air Force after 21
years, 2 months, and 20 days of active service.
The applicant’s original appeal was considered and denied by a
majority of the Board on 30 August 2001. The dissenting member
provided a Minority Report recommending partial relief. For an
accounting of the facts and circumstances surrounding the applicant’s
dismissal and the rationale of the earlier decision by the Board
majority, see the Record of Proceedings at Exhibit H, and the Minority
Report at Exhibit G.
On 11 Oct 05, the applicant submitted a request for reconsideration,
asking to be retired in the grade of major. He notes that in 2002,
President Bush signed into law a change in the UCMJ specifically
addressing charges of fraternization and adultery; President Clinton
had tried to accomplish this two years earlier. Under this new law,
he never would have been prosecuted by court-martial. He provides
statistical data he believes proves a definite increase in
prosecutions during 1996 and the first half of 1997. Retirement
eligible officers charged only with minor infractions may be
disciplined but historically not dismissed. He was retirement
eligible before the infractions occurred. He contends the Air Force
appeals court has stated that charges of fraternization are relatively
trivial in comparison with drug use (U.S. v. Hawes). There was never
any evidence his actions prejudiced good order and discipline or
discredited the Air Force. Most importantly, The Judge Advocate
General (TJAG) was allowed to accept non-judicial punishment, avoid
court-martial, and retire despite his fraternization and adultery with
over 13 women in the past 10 years. Additionally, TJAG endeavored to
impede an investigation by deleting email history. TJAG was
personally involved in the decision to prosecute him versus offer
nonjudicial punishment and had a reputation for being overly harsh in
his fraternization and adultery cases when he was the command Staff
Judge Advocate (SJA) at 15AF. The applicant admits his actions were
wrong and he should have been disciplined, but not as harshly as he
was.
The applicant’s complete submission is at Exhibit I.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ USAF/JAA contends there is a reason for the rule that retroactivity
is the exception rather than the norm and that retroactivity must be
specifically authorized in the later legislation/regulations: there
is a strong public policy interest in finalization that is not met if
aggrieved persons are permitted to constantly reopen cases for re-
review under the latest legal and policy changes. The rules in effect
at the time of the misconduct govern. The applicant’s assertion that
he would not have been prosecuted under the new rules is purely
speculative and irrelevant even from a purely equity-based
perspective. HQ USAF/JAA discusses why the cited U.S. v. Hawes case
is irrelevant to the applicant’s situation. The applicant was
retirement-eligible but that is immaterial in light of the Air Force
policy determination that being under investigation disqualified
officers from applying for early retirement. The AFPC and JAJM
advisories made it clear that officers under investigation were not
eligible to apply for the early retirement program in effect at the
time. That ineligibility determination was a commonsense and wholly
appropriate exercise of discretionary authority. In order to prevail,
the applicant would have to show abuse of discretion with
substantially more than conclusory rhetoric that the Air Force abused
its discretion by applying a rule to his detriment. Senior
officer/enlisted fraternization and adultery are inherently
prejudicial to good order and discipline and service discrediting.
The applicant incorrectly insinuates that there is something wrong or
unfair about the [former] Chief of Staff correcting what had become an
overly laissez-faire approach to discipline and accountability. He
cannot complain that his misconduct was judged more harshly than he
expected. TJAG’s case happened nearly a decade after the applicant’s
misconduct. A crucial part of any system based on law and equity is
recognition of the overriding principle that each case is determined
on its own merits and that there are many reasons why the “same facts”
might drive different results. This individual may have been the 15AF
SJA during the early stages of the applicant’s involvement with the
legal process but the SJA at the critical referral of charges and
approval of findings/sentence stages was another colonel, not TJAG.
A complete copy of the evaluation is at Exhibit J.
________________________________________________________________
APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION:
With regard to retroactivity, the applicant asserts that the “new”
rules [governing fraternization etc.] did not really change; there
just has been a progression of more and more guidance on how to apply
the rules. The Air Force did not follow established procedures in
deciding to prosecute him because of the era of increased
accountability fostered by the former AMC Commander and the then Chief
of Staff of the Air Force (CSAF). He really was retirement eligible
before reaching 20 years of continuous service except for the fact
that he was under investigation. The Air Force has historically
allowed retirement-eligible members to retire rather than face court-
martial for relatively minor infractions. He also applied for
retirement twice, once before the court-martial and once after. There
really was no direct evidence to indicate his behavior prejudiced good
order and discipline. He would not have been recommended for
prestigious positions or for clemency if his behavior was that
egregious. The evidence he has submitted establishes that the higher
level of accountability during this time frame led to more courts-
martial. He asserts TJAG, while engaged in unprofessional
relationships, sat in judgment on his case. As the 15AF SJA at the
time, TJAG had a direct influence on the investigative process and
subsequent charges.
The applicant’s complete response, with attachments, is at Exhibit L.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice to warrant allowing the applicant to
retire in the grade of major with a general characterization of
service, effective 1 Dec 99. A Presidential Pardon is not within the
purview of this Board; even if it were, we would be disinclined to
recommend this requested relief. In reviewing this request for
reconsideration, we did not find the applicant innocent of the
misconduct for which he was court-martialed. His inappropriate
behavior rendered his service in the grade of lieutenant colonel
unsatisfactory and was significant enough, in our view, to tarnish the
characterization of his otherwise stellar career. However, we are
persuaded by the arguments for partial relief presented in the
Minority Report that was submitted when this appeal was first
considered. Further, the former 22nd Air Refueling Wing vice
commander recommended leniency by allowing the applicant to retire.
In this regard, we noted the applicant’s performance was superior but
for these episodes. As far as we can determine from the
available documentation, none of these incidents included coercion or
sexual harassment, or involved individuals within the comptroller
organization or chain of command. The applicant’s superiors, who
witnessed his actions, apparently took no preliminary steps to rectify
his behavior, such as counseling or issuing a direct order to cease
his misconduct. A certain level of tolerance seems to have been
typical given the combined club/dining facility and mixed social
events on the applicant’s base. Following several incidents of highly
publicized major military mistakes and fraternization, the zealous
pursuit of strict accountability over the next few years sometimes
left fairness and equity behind. We believe this may have happened in
the applicant’s case. He was removed from his position, given a
referral performance report, tried, confined for three months with
hardened criminals, and dismissed after more than 20 years of service.
The applicant not only lost military retirement benefits, but his
employment opportunities in the private sector must have been severely
impacted. While punishment was warranted, we agree with the Minority
member that the enduring effect of his dismissal was “overkill.”
Weighing all factors of this case in the context in which they
occurred, we conclude the punishment the applicant received was unduly
harsh and he should be allowed to retire in the grade of major. The
applicant was discharged on 15 Nov 99. However, since retirement must
occur on the first of the month, we recommend the applicant’s records
reflect he remained on active duty until 30 Nov 99, and retired in the
grade of major on 1 Dec 99, with a general characterization of
service.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to the APPLICANT, be corrected to show that:
a. He was not dismissed on 15 November 1999, under the
provisions of General Court-Martial Order No. 2, dated 19 October
1999, but was continued on active duty in the Regular Air Force and
ordered permanent change of station to his home of record (home of
selection).
b. On 29 November 1999, competent authority determined, under
the provisions of Secretary of the Air Force Order No. 240.8,
paragraph 3b.17, that the highest grade satisfactorily served by him
was major.
c. On 1 December 1999, he was retired for length of service in
the grade of major with a general characterization of service.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 15 February 2006 under the provisions of AFI 36-
2603:
Ms. Kathleen F. Graham, Panel Chair
Mr. Wallace F. Beard, Jr., Member
Ms. Karen A. Halloman, Member
All members voted to correct the records, as recommended. The
following documentary evidence pertaining to AFBCMR No. BC-2001-00377,
was considered:
Exhibit H. Record of Proceedings, dated 19 Oct 01, w/atchs.
Exhibit I. Letter, Applicant, dated 11 Oct 05, w/atchs.
Exhibit J. Letter, HQ USAF/JAA, dated 16 Dec 05.
Exhibit K. Letter, AFBCMR, dated 22 Dec 05.
Exhibit L. Letter, Applicant, dated 4 Jan 06, w/atchs.
KATHLEEN F. GRAHAM
Panel Chair
AFBCMR BC-2001-00377
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 , be corrected to show that:
a. He was not dismissed on 15 November 1999, under the
provisions of General Court-Martial Order No. 2, dated 19 October
1999, but was continued on active duty in the Regular Air Force and
ordered permanent change of station to his home of record (home of
selection).
b. On 29 November 1999, competent authority determined,
under the provisions of Secretary of the Air Force Order No. 240.8,
paragraph 3b.17, that the highest grade satisfactorily served by him
was major.
c. On 1 December 1999, he was retired for length of
service in the grade of major with a general characterization of
service.
JOE G. LINEBERGER
Director
Air Force Review Boards
Agency
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