RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03039
		INDEX CODE:	126.00, 111.01,
			131.09, 100.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  The 28 Sep 99 Article 15, Uniform Code of Military Justice (UCMJ), be set aside.

2.  His Officer Performance Report (OPR), rendered for the period 21 Mar 99 through 17 Dec 99, be declared void and removed from his records.

3.  The duty title of “Commander, HQ Squadron Section” be deleted from his duty history and the Air Force personnel system.

4.  He receive direct promotion to the grade of lieutenant colonel, with in-resident Senior Service School (SSS) candidacy.
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APPLICANT CONTENDS THAT:

The charges in his Article 15 are not substantiated by facts.  Removal of the Article 15 will invalidate the subsequent referral OPR, which is based on the charges in his Article 15.  The short period for which he held the duty title of “Commander, HQ Squadron Section” implies he was fired.  Due to the wrongful removal from command, he lost the promotion potential opportunity as a commander, the opportunity for communications squadron command and selection for in-resident ISS.

In support of his request, applicant submits a personal statement and additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

On 3 May 86, the applicant was appointed a second lieutenant, Reserve of the Air Force, and was voluntarily ordered to extended active duty on 11 Oct 86.  He was integrated into the Regular Air Force on 29 Jun 93 and has been progressively promoted to the grade of major, effective and with a date of rank of 1 Apr 98.

On 15 Sep 99, applicant was notified of his commander's intent to impose nonjudicial punishment on him under Article 15, UCMJ.  The misconduct applicant had allegedly committed was for violation of a lawful general order, maltreatment, conduct unbecoming an officer and gentleman and three specifications of fraternization, in violation of Articles 92, 93, 133 and 134, UCMJ.  The applicant consulted a lawyer, waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He submitted a written presentation and made a personal appearance before his commander.  After considering all matters presented to him, the commander found that the applicant did commit one or more of the offenses alleged, with the exception of the maltreatment specification (Article 93).  The commander imposed punishment of forfeiture of $2,035.00 pay per month for two months and a reprimand.  The applicant appealed the nonjudicial punishment on 15 Oct 99.  On 14 Dec 99, the appellate authority denied the applicant’s appeal and determined that the record of nonjudicial punishment would be filed in the applicant’s selection record.

Information extracted from the Personnel Data System reveals that the applicant held the duty title of commander, HQ Squadron Section, --- AFB, --, from 16 Apr through 17 Dec 99.

The following is a resume of the applicant’s OPR ratings subsequent to his promotion to the grade of major:

		Period Ending	Evaluation

		  20 Mar 99	Meets Standards
		* 17 Dec 99	Does Not Meet Standards
		#  6 Jun 00	Meets Standards
		## 6 Jun 01	Meets Standards
		###6 Jun 02	Meets Standards

*  Contested Referral OPR

# Top report at the time he was considered and nonselected below-the-promotion zone (BPZ) for promotion to lieutenant colonel by the CY00A (P0500A) Central Lieutenant Colonel Board, which convened on 28 Nov 00.

## Top report at the time he was considered and nonselected in-the-promotion zone (IPZ) for promotion to lieutenant colonel by the CY01B (P0501B) Central Lieutenant Colonel Board, which convened on 5 Nov 01.

### Top report at the time he was considered and nonselected above-the-promotion zone (APZ) for promotion to lieutenant colonel by the CY02B (P0502B) Central Lieutenant Colonel Board, which convened on 12 Nov 02.
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AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application be denied.  JAJM indicated that the applicant states his e-mails about a party at his residence sent between 14 Jun and 30 Jun 99, using the government e-mail system, were official government communications.  JAJM stated that the applicant does not present any evidence that show his emails were determined necessary in the interest of the Federal government.  Even if the e-mails were for the --- AFB basketball team’s end of season party, the applicant fails to show the official nature of the messages.  The messages contained profanity, encouraged drinking in the office and asked for secrecy about the party.  Contrary to the applicant’s current contention, in his 24 Sep 99 response to the Article 15, the applicant admitted that he used the e-mail system for personal use without permission as required by AFI 33-119 and not official military business.  JAJM agrees with the applicant’s conclusion that his contact with the female officer was conduct unbecoming and that there is no injustice in so characterizing it.  It was within the commander’s discretion to include that conduct as an allegation in the nonjudicial punishment proceedings.  As the decision authority, the commander reviewed the evidence, considered the applicant’s submissions and determined that Article 15 was appropriate action to take for the applicant’s conduct.  The applicant presents no new facts or evidence that justify withdrawal of the action.  JAJM indicates that an Article 15 is not a formal legal proceeding with the attendant formal rules of charging, proof and evidence.  It is a disciplinary measure more serious than purely administrative corrective measures but less serious than trial by court-martial.  By electing to resolve the allegation in the nonjudicial forum, the applicant vested his commander with the responsibility to decide whether he had committed the offenses.  In JAJM’s opinion, there was sufficient evidence for the commander to determine the offenses had been committed.  The applicant’s arguments failed to convince either the commander, who imposed punishment, or the appellate authority.  While different fact finders may have come to a different conclusion, the commanders’ findings are neither arbitrary nor capricious and should not be disturbed.  JAJM stated that a set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.  A complete copy of this evaluation is appended at Exhibit C.

HQ AFPC/DPASC states that, if and only if, the applicant’s request is approved, they would recommend removal of the job entry titled, “Commander, HQ Squadron Section” from his duty history and personnel records.  A complete copy of this evaluation is appended at Exhibit D.

HQ AFPC/DPAP indicated that a member should only receive candidacy if it is believed he is among the top percentage of officers in order of merit on the promotion list.  DPAP stated that if the applicant is selected for promotion, then he should be considered for SSS candidacy consistent with the criteria above.  A complete copy of this evaluation is appended at Exhibit E.

HQ AFPC/DPPPE recommends the applicant’s request to have the contested referral OPR voided be denied.  DPPPE states that the contested report does not mention the Article 15.  The report was referred because the applicant was relieved of his command based on allegations substantiated through an investigation.  The applicant did not provide a copy of the summary of investigation to show the allegations were not substantiated or documentation to show he was erroneously relieved of his command.  A complete copy of this evaluation is appended at Exhibit F.

HQ AFPC/DPPPO recommends the applicant’s request for direct promotion be denied.  DPPPO concurs with the findings in the Air Force advisories indicated above.  DPPPO stated that both Congress and DoD have made clear their intent that when errors are perceived to ultimately affect promotion, they should be addressed and resolved through the use of Special Selection Boards (SSBs).  Without access to all the competing records and appreciation of their content, DPPPO continues to believe the practice of sending cases to SSBs is the fairest and best practice.  In the past, and hopefully in the future, the AFBCMR will consider direct promotion only in the most extraordinary circumstances where SSB consideration has been deemed to be totally unworkable.  The applicant’s record clearly does not warrant direct promotion.  A complete copy of this evaluation is appended at Exhibit G.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and indicated that it is his intent to show that the facts from the case does not support the decision made.  There are “NO NEW FACTS” - just more/new evidence to show the facts already presented do not and never did support the conclusions and clearly evidence of pre-judgment and biased injustice exists.  All requests to correct the injustices done to him are based on resolution of the charges within the Article 15 and, therefore, all the advisory opinions for OPR removal, direct promotion, resident SSS candidacy and duty history correction are conditional on those injustices being corrected.  Refer to the applicant’s rebuttal statement in which he addresses the advisory opinions on the merits of the comments contained within.

The applicant’s complete submission, with attachments, is at Exhibit I.
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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We thoroughly and carefully reviewed the applicant’s complete submission in judging the merits of his case.  However, we agree with the comments and opinions of AFLSA/JAJM and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  We are not convinced by the applicant’s submission that the Article 15, UCMJ, action was unjust or unwarranted for the offenses committed.  When initiating the Article 15 action and imposing the nonjudicial punishment, we believe the commander acted on the basis of information he determined to be reliable.  We are of the opinion that the applicant’s commander, being aware of all of the circumstances involved, was in the best position to determine whether the applicant should receive the Article 15 and what resultant punishment he should render.  Although the applicant presents detailed arguments, he has failed to provide compelling evidence to show error or injustice in the initiation of the Article 15 action, that the commander abused his discretionary authority when he imposed the nonjudicial punishment, that the punishment was too harsh, or that he was not afforded all rights granted by statute and regulation.  Since the respective Air Force office (AFLSA/JAJM) has sufficiently addressed the applicant’s contentions, we see no reason to further expand on these issues.  Regarding the request to void the OPR closing 17 Dec 99, we are not convinced, by the applicant’s submission, that the contested report is an inaccurate or unfair assessment of his overall duty performance during the contested rating period.  We found no evidence that the contested report was prepared contrary to the governing instruction.  It appears that the contested OPR is based on the reasons cited in the Article 15 action.  Inasmuch as the applicant has failed to refute the Article 15 action, no basis exists to recommend favorable action on the applicant’s request for removal of the contested OPR and duty title, or direct promotion to the grade of lieutenant colonel, with in-resident Senior Service School candidacy.  In view of the foregoing and in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in 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 issue(s) 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 this application in Executive Session on 10 Mar 03, under the provisions of AFI 36‑2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number 01-03039.

   Exhibit A.  DD Form 149, dated 15 Oct 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 4 Feb 02.
   Exhibit D.  Letter, HQ AFPC/DPASC, dated 4 Mar 02.
   Exhibit E.  Letter, HQ AFPC/DPAP, dated 12 Mar 02.
   Exhibit F.  Letter, HQ AFPC/DPPPE, dated 4 Jun 02.
   Exhibit G.  Letter, HQ AFPC/DPPPO, dated 4 Jun 02.
   Exhibit H.  Letter, SAF/MRBR, dated 14 Jun 02.
   Exhibit I.  Letter from Applicant, dated 8 Oct 02, w/atchs.