RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2014-01033
			COUNSEL:  TIMOTHY M. MACARTHUR
			HEARING DESIRED:  YES


APPLICANT REQUESTS THAT:

The Officer Grade Determination (OGD) be overturned and his 
retired grade be changed from major to lieutenant colonel.


APPLICANT CONTENDS THAT:

The proper procedures for completing his OGD were not followed 
correctly and in a timely manner.

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


STATEMENT OF FACTS:

On 15 May 2013, the Secretary of the Air Force determined the 
applicant did serve satisfactorily in the grade of major, but 
did not serve satisfactorily in the grade of lieutenant colonel.  
As a result the SAF directed the applicant retire in the grade 
of major.

On 30 June 2013, the applicant retired in the grade of major 
after serving 24 years, 5 months and 4 days on active duty.

The remaining relevant facts pertaining to this application, 
extracted from the applicant’s military records, are contained 
in the letter prepared by the appropriate office of the Air 
Force at Exhibit B.


AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial.  It appears the applicant received 
proper consideration during the OGD process.  The 
recommendations made by his immediate supervisor and the former 
PEO were part of the correspondence presented to the Personnel 
Council, and the decision on his retired grade was made based on 
valid information by the appropriate authority.  While the OGD 
was initiated a few months after the non-judicial punishment 
occurred, it is not unusual for there to be a delay in 
processing.  OGDs are rare and, due to their significance, often 
require lengthy consideration and deliberation.  It does not 
appear that this delay was extremely excessive.

AFI 36-3203, paragraph 7.5 requires an OGD be accomplished when 
an officer applies for retirement in lieu of court-martial or 
administrative separation action; when the officer has a court-
martial conviction; when the officer has a civil court 
conviction for misconduct involving moral turpitude or in which 
the sentence includes confinement for one year or more without 
regard to suspension or probation; when the officer received 
non-judicial punishment within two years of the date of 
retirement application; or when the commander or other 
appropriate authority believes an OGD is appropriate.  
Typically, the commander or designated representative would 
identify the OGD requirement during the retirement application 
process; however, in this case, the non-judicial punishment did 
not occur until after the application was approved.  As stated 
in AFI 36-3203, table 2.1, note 1, and paragraph 7.5.9, when it 
is later determined that an OGD is required - the retirement is 
suspended, which occurred when AFPC/DPSOR received the OGD 
package from HQ AFMC/CV.

In determining whether an officer has provided satisfactory 
service, the SAF considers the nature and length of the 
officer’s misconduct, the impact the misconduct had on military 
effectiveness, the quality and length of the officer's service 
in that grade, past cases involving similar misconduct, and the 
recommendations of the officer's command chain.  In the 
directive, dated 15 May 13, the SAF found the applicant did 
serve satisfactorily in the grade of Major, but did not serve 
satisfactorily in the grade of lieutenant colonel.  As a result, 
the SAF directed the applicant be retired in the grade of major.

The complete DPSOR evaluation, with attachments, is at Exhibit 
B.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states the evaluation focuses on facts that demonstrate 
why an OGD was legal and in accordance with regulation in this 
case.  It does not address the thrust of the argument - that the 
overwhelming evidence in this case supports retirement in the 
rank of lieutenant colonel.  For instance, the contention is not 
whether his superior had authority to request the OGD.  The 
proper question is why didn’t the applicant’s chain of command 
request the OGD at the time of his non-judicial punishment?  The 
chain of command did not initiate an OGD because they did not 
consider it appropriate in this matter.

The applicant has accepted responsibility for his mistake.  His 
misconduct was brief in duration.  As pointed out in his initial 
brief, the OGD appears to have made a determination that any 
misconduct as a lieutenant colonel invalidated all honorable and 
credible service in that rank.  This is simply not the case and 
is not a proper interpretation of the statute in question.  He 
served in the rank of lieutenant colonel for seven years.  He 
had a brief affair that he ended after one month.  He paid 
dearly for his mistake.

The interests of justice will be served by overturning the 
decision of the OGD as the evidence has established that its 
decision is an unfair characterization of his service as a 
lieutenant colonel   Also, he believes this to be unduly harsh 
punishment that unfairly hurts his family.

The counsel’s complete response is at Exhibit D.


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application is timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  After a 
thorough review of the facts and circumstances of this case and 
given the seriousness of his misconduct, the Board does not 
believe that the findings of the OGD constitute an injustice.  
In our view, the applicant’s behavior was incongruent with the 
highest standards expected of a senior field grade officer in 
the United States Air Force.  The applicant has not submitted 
evidence showing that the statutorily required OGD action was 
inappropriate or that the determination of the Secretary’s 
designee was erroneous.  Therefore, we agree with the opinion 
and recommendation of the Air Force office of primary 
responsibility and adopt the rationale expressed as basis for 
our conclusion that the applicant has failed to sustain his 
burden of proof of the existence of either an error or injustice 
in this case.

4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.






THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of an error or injustice; the 
application was denied without a personal appearance; and 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 AFBCMR Docket 
Number BC-2014-01033 in Executive Session on 8 January 2015, 
under the provisions of AFI 36-2603:

The following documentary evidence was considered:

  Exhibit A.  DD Forms 149, dated 26 February 2014, w/atchs.
  Exhibit B.  Letter, AFPC/DPSOR, dated 20 April 2014.
  Exhibit C.  Letter, SAF/MRBR, dated 22 September 2014.
  Exhibit D.  Letter, Applicant, dated 22 October 2014, w/atchs.