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