RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01610
		INDEX CODE:  111.00, 126.04.
		131.00
		COUNSEL:  Mr. Fred L. Bauer

		HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

a.  His nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) be removed from his records.

b.  His referral Officer Performance Report (OPR) rendered for the period 31 Jul 95 through 25 Nov 96, be declared void, and removed from his records.

c.  He be granted other such relief that would put him in the position he would have been in if the allegations had never been made.

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APPLICANT CONTENDS THAT:

On 16 May 96, the NCO husband of Mrs. -- reported that his wife was raped one to four months earlier.  According to Mrs. --, on 1 Mar 96 she had been drinking heavily with friends when the applicant took her to his billeting room and had forcible oral and vaginal intercourse and that he ejaculated three times in quick succession.  A week later she claimed she was pregnant.  She initially said it was her husband's baby but later said that it was the applicant's baby because the condom broke during intercourse.  The applicant denies her allegations and has passed two polygraphs showing that he did not even have intercourse with her.

The allegations of rape and sodomy are easily discredited.  Aside from the humanly impossible allegation of three quick ejaculations her statements to others were hopelessly inconsistent.  She told her husband two and a half months after the alleged incident that she was raped one to four months earlier but in her statement she said it was the first of March, two and a half months earlier.  She told the Office of Special Investigations (OSI) that she told a friend that it was her husband's baby but stated also that she had not had sex with her husband in the last 5 months.  Her husband refutes this in his statement to the OSI.  Other witnesses noted that she tried to keep in touch with the applicant and have sex with him after the alleged rape.  There is evidence that he tried to avoid her.  A witness that drove her home the morning after the alleged rape stated that she did not claim she was forced to have sex with him but when asked, she smiled and said that she had been with him the previous night.  She boasted to another friend of having sex with him one day and later claimed she was raped and forcibly sodomized by him.  Since she has had an abortion, it is not possible to have a paternity test to prove that the applicant did not impregnate her.

On the evening of the alleged incident the applicant went to a bar to meet with two fellow officers.  Several Asian women were there, two of which were romantically involved with his friends.  A third woman who turned out to be Mrs. --, approached the applicant and asked him if he wanted to dance, he declined.  The two other officers later left with the two females and he remained.  When he went to settle the bar tab he was told by the bartender that the two females that left with his friends were married to enlisted men stationed at Altus.  He felt the need to warn them and asked Mrs. -- if she knew where they went.  He asked her to show him where they went and she volunteered to do so.  After a while it became obvious that she did not know where their friends went and he suggested that they go to their respective homes.  She then asked if she could go to his hotel room and use his phone to try to locate her friends.  While in his room, after unsuccessfully finding her friends she began to sob when he suggested that he take her home and began to tell him about her marital difficulties and abusive relationship.  Trying to establish common ground he shared his marital difficulties with her and offered to help her.  It was getting late and she asked if she could stay for a few hours until her friend came to pick her up.  While realizing letting her stay was awkward, he agreed and let her stay.  She slept on the bed and he slept on a chair.  The next morning she called for a friend of hers to come and pick her up and she left.  What he did not realize at the time was that she had taken an American Express Gold Card application that he had completed from his room.  The application detailed his home address and his wife's information as well.  

About 2 weeks later Mrs. -- called the applicant at his hotel stating that she needed to talk to him about something very important.  They met in a Wal-Mart parking lot and went for a walk where she told him she was pregnant by another man and was afraid of what her husband would do when he found out.  She said that she needed money for an abortion and to fly to the Philippines.  The applicant knew that she was involved with another officer and believed that the other officer was the father of her baby.  When he refused to give her money she told him that she would tell his wife that they had slept together.  The applicant knew the seriousness of this blackmail attempt because of the effect it would have on his divorce settlement and his military career.  In order to buy some more time he told her he would think of a way to help her out.  Over the next few days she made repeated attempts to contact the applicant but he was able to avoid her until she showed up at is room one day repeating the blackmail threat.  He suggested that she submit to a pregnancy test to determine if she was pregnant before the date she came to his room.  She agreed and they went to Dallas to a clinic that he had previously checked with to perform the test.  The test showed that she was 8 weeks pregnant with twins, which proved that she was pregnant more than a month before they met.  He now had concrete proof that she was a liar but because of privacy concerns he cannot get this information from the clinic, only she can.  

At that point her tone changed and she practically begged him for money.  He told the counselor at the clinic that he felt she was in danger.  Mrs. -- said it was true and admitted at that point that the applicant had nothing to do with her pregnancy.  The counselor suggested termination of the pregnancy and asked the applicant if he could bring her back the next morning, which he agreed to do.  After the abortion Mrs. -- was unable to travel and the counselor again asked the applicant if they could stay one more night, again he agreed.  After they returned to Altus AFB she repeatedly made attempts to contact him and on one occasion showed up while he was talking to a mutual acquaintance.  A few days later he returned to Charleston, SC.  

Mrs. -- then told her story to her husband and the OSI.  Not knowing all the facts, his commander initiated Article 15 action alleging adultery.  At the time of the commander's decision, the applicant had not yet taken either polygraph test.  He took one on 15 Aug 98 and passed, yet his commander still refused to set aside the Article 15 despite strong encouragement he received from the staff judge advocate at Charleston AFB.  A second polygraph test was taken on 9 Dec 98 and again he passed.  He subsequently left active duty for the Air Force Reserves under the mistaken belief that his Article 15 would not follow him.

If his commander was confident in the allegations of rape, forcible sodomy, and adultery, court-martial action would have been justified.  However, they knew she was a liar and instead offered nonjudicial punishment.  It is important to realize that accepting Article 15 punishment is not an admission of guilt.  His responses make it clear that he has always denied any wrongdoing.  Since Mrs. -- had no credibility all that was needed was for it to be shown that there were reasonable explanations for her being in his room and accompanying her to Dallas.  There is no doubting the applicant's truthfulness in this matter.  He has done everything humanly possible to prove his innocence including the extraordinary steps of passing two polygraph examinations.

In support of his request, applicant provided his counsel's brief, documents associated with his polygraph examinations, and witness statements.  His complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

On 22 May 88, the applicant was appointed a second lieutenant, Reserve of the Air Force.  He was voluntarily ordered to extended active duty on 24 Sep 88.  He was progressively promoted to the grade of captain, having assumed that grade effective and with a date of rank of 23 Jul 92.  He was integrated into the Regular Air Force on 3 Mar 95.  

On 22 Aug 96, the applicant was notified by his commander of his intent to recommend nonjudicial punishment under Article 15 of the UCMJ for wrongfully having sexual intercourse with a married woman, not his wife.  He was advised of his rights in this matter and acknowledged receipt of the notification on 2 Sep 96.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written and oral presentation to his commander.  On 13 Nov 96, after consideration of all the facts, his wing commander determined that he committed the offense alleged and imposed punishment on the applicant.  He was ordered to forfeit $1,500 pay per month for 2 months and was reprimanded.  The applicant appealed his punishment to 21 AF/CC.  His appeal was denied.  

The applicant resigned his Regular Air Force commission and accepted a commission as a captain, Reserve of the Air Force on 9 Jun 99.

The following is a resume of the recent applicant's OPR profile subsequent to his promotion to the grade of captain:

	PERIOD ENDING		OVERALL EVALUATION
		14 Nov 92	Meets Standards (MS)
	14 Nov 93		(MS)
		14 Nov 94			(MS)
		30 Jul 95			(MS)
		13 Oct 95		Training Report (TR)
	*	25 Nov 96	       Does Not meet Standards
		25 Nov 97			(MS)
		25 Nov 98			(MS)
		08 Jun 99			(MS)
		08 Jun 00			(MS)
		21 Jun 01			(TR)

* - Contested Report

Pursuant to the Board's request, the OSI provided an unredacted copy of a Report of Investigation pertaining to the applicant.  The report is appended at Exhibit I.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and states that because of the untimely nature of the application and his failure to establish his commander's lack of due diligence in determining his findings, denial is recommended.  By electing to resolve the allegation in the nonjudicial forum, the applicant placed the responsibility to decide whether he had committed the offense with the commander.  There was sufficient evidence for the commander to determine the offense had been committed.  His arguments failed to convince either the commander or the appellate authority.  While a different fact finder may have come to a different conclusion, the commander's findings are neither arbitrary nor capricious and should not be disturbed.  

Although Mrs. -- alleged rape and forcible sodomy, his commander decided to offer nonjudicial punishment for adultery, apparently considering the bases for the more serious offenses to be questionable.  The applicant wrongly contends that the commander erred in dismissing the rape and sodomy allegations and yet persisting in the adultery charge.  To the contrary, it is quite reasonable to judge a person capable of engaging in consensual sex with someone other than his wife, while at the same time considering the same person unlikely to have committed the more serious offenses of rape and forcible sodomy.  It is not illogical to conclude the commander believed that there had been an adulterous relationship that had gone sour.  In essence, he suggests that the Board reverse the commander for believing the applicant partially but not completely.  

This case illustrates the difficulties in addressing the factual issues involved in nonjudicial punishment long after the punishment has been imposed and the evidence and material are no longer available.  The applicant is able to submit any material, make any allegations and assertions, and spin the material available in a manner that supports his contentions without significant risk of contradiction.  He presumably made these arguments with his commander and the commander and the appellate authority did not agree with him.  He should not prevail here absent clear error or injustice.  There is no evidence that nonjudicial punishment process did not work in this case, other than his disagreement with the result.  It is noteworthy to point out that although he again denies having committed the offense in his response to a referral OPR, he does state: "While I recognize that it is not unreasonable to arrive at the conclusion you did with the evidence presented, I must emphasize that much of the evidence was either a lie, or incomplete, and in sum did not tell the whole story."  The JAJM evaluation is at Exhibit C.

AFPC/DPPPE reviewed applicant's request and states that an evaluation report is accurate as written when it becomes a matter of record.  To effectively change the OPR a decision rendering the Article 15 to be set aside must be completed.  If the Article 15 is set aside, the OPR should be voided.  The DPPPE evaluation is at Exhibit D.

AFPC/DPPPO reviewed applicant's request, concurs the JAJM and DPPPE advisories, and states that SSB consideration is not warranted.  The DPPPO evaluation is at Exhibit E.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded and states that he obviously could not request set aside from the commander who administered the Article 15 and his successor did not take command for another 18 months due to the Balkans conflict.  Shortly after he separated from active duty and transitioned to the Reserve, his commander removed his Unfavorable Information File (UIF) due to being impressed with his duty and upon recommendation from the Judge Advocate (JA) who felt he had been dealt an injustice.  His commander and the JA encouraged him to request the set-aside.  Personnel had informed him that the Article 15 would not follow him into the Reserve.  The AFBCMR has access to everything that his commander had available in deciding his guilt including the applicant himself.  He asked his commander to use the investigative powers available to interview Mrs. -- or any other witnesses but he refused.  His statement in his reply to the referral OPR was merely a respectful and polite remark to a superior officer in the context of providing further illumination to the evidence provided.  

The applicant realized that he provided most of the evidence used against him.  He realizes that much of his statement if viewed with cynicism could be used against him.  He could have denied the trip to Dallas, having ever met Mrs. --, or her being in his room.  However, he took a vow to be honest and a man of integrity, so when asked, he told the entire truth.  In 1996 at the height of the Kelly Flynn controversy, the last subject a commander wanted to be seen as "sweeping under the carpet" was any sort of sexual misconduct.  It is noteworthy that the wing commander who refused to set-aside the punishment served as vice wing commander under the commander who issued the Article 15 and was hand picked for the wing commander position.  In fact, he knows the commander spoke to the former commander about his set-aside request.  It is not unreasonable to conclude that he did not want to replace the judgment of his most valuable advocate.  

Mrs --- is lying and he is telling the truth.  The people closest to Mrs --- have said she is lying and had a specific motivation for blackmailing him.  Those who were present that evening said he expressed no interest in Mrs --- and performed admirably as their commander.  He has taken two polygraph tests and passed them both.  Applicant's complete response, with attachments, is at Exhibit G.

Council for the applicant provided a statement indicating that JAJM does not challenge his client's integrity.  The evident of his client's innocence and integrity previously presented is so strong that there really should not be any doubt of his innocence.  Under these circumstances it would not be in the interest of justice to punish an innocent man because he was given bad advice by Personnel.  It would be especially wrong in my client's case because of his continuing outstanding service in the Air Force (his aircraft came under fire in Afghanistan within the past month and he is continuing to serve in the current conflict.

Given the extraordinary amount of evidence impugning the complainant's character and credibility, it was unreasonable for the commander to take her word on anything.  The woman told wildly inconsistent stories, worked as a stripper, made claims that weren’t even physically possible; and even her friends felt compelled to come forward and support my client.  We would ask the reviewers of this package to once again review our initial application and see for themselves just how outrageously and unfairly this veteran pilot has been treated.  The counsel's complete statement is at Exhibit H.
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THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  We carefully reviewed the applicant's complete submission in judging the merits of this case; however, given the circumstances of this case, we are not persuaded by the evidence presented that the nonjudicial punishment initiated was improper or unjust.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence indicates that, during the processing of this Article 15 action, the applicant was offered every right to which he was entitled.  He was represented by counsel, waived his right to demand trial by court-martial, and submitted matters for review by the imposing commander.  After considering the matters raised by the applicant, the commander determined that the applicant had committed "one or more of the offenses alleged" and imposed punishment on the applicant.  The applicant has not provided sufficient evidence showing that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of the Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  In view of our determination concerning the Article 15, we do not believe the contested OPR is either in error or unjust.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application.

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.

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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.

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The following members of the Board considered Docket Number 01-01610 in Executive Session on 5 Sep 02, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 May 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 11 Dec 01.
    Exhibit D.  Letter, AFPC/DPPPE, dated 25 Jan 02.
    Exhibit E.  Letter, AFPC/DPPPO, dated 8 Feb 02.
    Exhibit F.  Letter, SAF/MRBR, dated 15 Feb 02.
    Exhibit G.  Applicant's Letter, dated 20 Feb 02, w/atchs.
    Exhibit H.  Letter, Counsel, dated 7 Mar 02, w/atchs.
    Exhibit I.  AFOSI Report of Investigation - Withdrawn.