RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00085
		INDEX NUMBER:  126.00;111.01
	XXXXXXXXXXXXXX	COUNSEL:  
	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The punishment he received under Article 15 on 18 Nov 98 be set aside and he be reimbursed the $1200 forfeiture imposed on him.

The Officer Performance Report rendered on him for the period  28 Dec 97 through 27 Dec 98 be declared void and removed from his records.

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APPLICANT CONTENDS THAT:

Counsel for the applicant submitted a 31-page brief with 17 attachments in support of applicant’s appeal.  Counsel contends that there are several aspects of the specification on the AF Form 3070 (Article 15) which are problematic.  Anytime an offense is charged under one of the two “general” Articles (Articles 133 or 134) the specification must encompass conduct which has a direct and palpable effect on the military, either because it erodes good order and discipline or because it tarnishes the public esteem for military leadership.  Counsel asserts that the circumstances leading up to applicant’s Article 15, however, did not consist of evidence that his personal life was interfering with his professional responsibilities, or any similar evidence that his private life was interfering with his professional responsibilities, or any similar evidence that his private life was affecting his performance in any way.

Counsel further asserts that the individual that wrote the statement leading to the investigation and charges against the applicant did so out of anger with a desire to see the applicant suffer.  The individual was also no longer a part of the active force when he made the allegations against the applicant.  Since there is no evidence that the relationship engaged in by the applicant was anything other than a private relationship at the time it occurred, it cannot be assumed that this relationship had any detrimental effect on the Air Force mission, or any component of good order and discipline.

Counsel further indicates that when charges are presented to a military member, it is tantamount to asserting that a good faith basis for the charge exists, and that sufficient, competent  (admissible and believable) evidence exists.  The circumstances of the applicant’s case illustrate that there was a lack of competent evidence against him.  Counsel indicates that the individual that caused the action against the applicant sought to misuse the military justice system to his advantage in seeking to harm the career of the applicant.

Although the applicant was only charged with conduct unbecoming an officer, he was reprimanded for committing adultery.  This seems to indicate that the commander regarded the conduct as having constituted adultery all along, but appears to have been reluctant to use the word itself until it was time to reprimand the applicant.  Counsel provides an in depth discussion on the law relevant to adultery in order to demonstrate that the Air Force has not followed its own policy regarding handling allegations of this nature.

Counsel also discusses the importance of providing adequate notice to the alleged offender.  He maintains that the applicant made a conscious decision not to demand trial by court-martial based upon the charge that he was facing, and upon advice of counsel.  He also received advice from his counsel that they need not worry about addressing any issues related to adultery.  This raises the issue of whether or not one can have effective assistance of counsel when the specification charges one offense, but the commander finds him guilty of another.

Counsel asserts that the applicant’s OPR closing out 27 Dec 98 violates Air Force Instruction 36-2402 by including information that occurred outside the reporting period.  His OPR also characterizes the applicant’s conduct as an “unprofessional relationship.”  The applicant, however, received an Article 15 for “conduct unbecoming an officer” and the reprimand he received references a third concept-adultery.  All three of these are three different concepts under military law.  Counsel provides an expanded discussion on the concept of “unprofessional relationship” to show its nonapplicability in the applicant’s case.

In addition to the brief prepared by counsel, applicant submitted a seven-page personal statement for the purpose of presenting his position on issues that haven’t been adequately represented in the case record.  The applicant indicates that he knows what he did was wrong and that he is truly sorry for any pain and suffering that he caused his supervisor.  However, he also understands that there is a difference between something being immoral and something being illegal--a fact his superiors either failed to comprehend or to disregard.  He states that throughout the legal process, he never denied wrongdoing because he was confident that his superiors would see the situation for what it was; an isolated incident of poor judgement on the part of a young, single officer with an otherwise solid record.  He and his counsel were certain that the Wing Commander would see his infraction as a dead issue and would require little more than an admonishment not to do it again.  They certainly thought that no legal action would be taken because the situation had ended nine months before, two thousand miles away, and did not affect the Air Force in any way.

The applicant provides details of why he believes his case was inappropriately handled.  He indicates that he was denied access to documents or evidence in his case.  He also indicates that although he was initially told he was being investigated for adultery and conduct unbecoming, he was only actually charged with conduct unbecoming.  He did not deny the allegation that he committed adultery because he was never charged with that offense.  He later realized that the main reason that his chain of command was pursuing his case was because he hadn’t denied wrongdoing.  If he had been charged with adultery, he would have demanded trial by court-martial.  He believes the Staff Judge Advocate’s opinion that the commander should continue to prosecute based on the fact that he didn’t deny the charge of adultery is unfair because they never revealed their true intention of punishing him for adultery.

Applicant indicates that although he never denied wrongdoing, he did deny that his conduct was “unbecoming” as defined by the UCMJ.  He states that the SJA misused evidence in his case to suit his own purposes such as highlighting one voice mail message out of thirteen, when the other twelve would have clarified the context of the relationship between he and his supervisor’s wife.  The Wing Commander was never given the opportunity to consider all of the information in his case because it was never made available to him.

The applicant provides details of how he received inadequate representation from his Area Defense Counsel.  He indicates that he and his attorney were stunned when they learned the details of his punishment.  He believes that the language of the Article 15 surprised even the SJA that prosecuted him and the personal reprimand issued by the wing commander.  After reviewing the guidance on nonjudicial punishment, he thought there was a good chance the Wing Commander would suspend the punishment.  However, his appeal to suspend the punishment was denied.  He was relieved that his ordeal was over until three months later when he received a referral OPR.

He felt compelled to confront his Squadron Commander on the OPR and provides a recap of how he remembers the discussion between them.  He also discussed the OPR with the Wing Commander.  The OPR was not changed.  While preparing an appeal of the OPR to the ERAB, his new lawyer provided him with information on “Unprofessional Relationships” that he thought might convince his Squadron Commander to modify the OPR.  The Squadron Commander did not change his position, however.  The applicant believes that the inaccuracy and intentional vagueness of the comment on his OPR directly violates AFI 36-2406, Section 3.6.1.  

The applicant indicates that he was denied the right to face his accuser by a “No Contact” order he received to stay away from his supervisor’s wife.  He further indicates that it was important for him to question her because her statement was not completely accurate.  He believes that she was either seeking revenge for her unrequited feelings toward him or was coerced to write her statement by her husband. 

Applicant indicates that the Article 15 and Unfavorable Information File on him were terminated early.  He states that his squadron and wing commanders have admitted on several occasions that they have regrets over how they handled his case.

Counsel and applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is presently serving on active duty in the grade of major.  His Total Active Federal Military Service Date is   18 Nov 88.  A resume of his last ten OPRs follows:

	Closeout Date			Overall Rating
	  22 Aug 92			Meets Standards
	  22 Aug 93			Meets Standards
	  22 Aug 94			Meets Standards
	  22 Aug 95			Meets Standards
	  22 Aug 96			Meets Standards
	  22 Aug 97			Meets Standards
	  27 Dec 97			Meets Standards
	 *27 Dec 98			Does Not Meet Standards
	  27 Dec 99			Meets Standards
	  27 Dec 00			Meets Standards

* Contested Report

The remaining relevant facts pertaining to this application are contained in the evaluation prepared by AFLSA/JAJM found at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denying the applicant’s request to set aside the Article 15 action.

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.  In this case the commander concluded that applicant had engaged in conduct unbecoming an officer by engaging in sexual intercourse and other sexual acts with the wife of another officer.  There was sufficient evidence for the commander to determine the offense had been committed.  The evidence consisted of the statements of the applicant’s former supervisor (aggrieved party) and his wife and the rebuttal statement of the applicant.  The commander undoubtedly considered the impact on the former supervisor’s marriage from the former supervisor’s perspective.  He also had to have considered the impact on the former supervisor’s mental health and his ability to function and perform his duties.  There were also other facts considered by the commander before determining guilt and appropriate punishment.  First, the former supervisor’s wife was living in the marital abode with her husband during the course of the affair.  Second, she was attending marital counseling sessions with her husband during the affair.  Third, she was enduring great pain to keep the true nature of their relationship secret from her husband.  Moreover, it is clear from applicant’s own feelings of guilt; described in his statements, that he was more than a little uncomfortable with her “open marriage characterization.”  Indeed, the applicant’s actions are not consistent with the innocent victim portrayal that he would have the board embrace.  The record shows that on at least one occasion, he left a phone message instructing his former supervisor’s wife to return his call, but not from home.  On another occasion, he denied having sexual relations with her when directly confronted by his former supervisor.

Given these incontrovertible facts, the applicant attempts to shift responsibility and blame to others for his misconduct.  He begins with the wife, whom he characterizes as relentless.  He also indicates that his former supervisor bears some responsibility for the illicit affair as well.  He allowed his wife to go to basketball games with him and permitted her to sit in the back seat with him on two separate occasions, while he sat in the front.  The applicant also contends that he should have been given the benefit of progressive punishment.  He infers in his submission that he believes a stay away order should have been issued by the command with a following reprimand and/or Article 15 for failure to obey the order.  He continues his argument by stating that not only didn’t his conduct affect his performance, it did not affect the performance of any other Air Force member.  He apparently disregards the effect this affair was having on his former supervisor and those who had to interact with him.

Applicant argues that he was not given adequate notice of his adulterous conduct with his former supervisor’s wife and he was denied effective assistance of counsel within the meaning of the sixth amendment by counsel’s failure to properly advise him of the charges against him.  As noted in the Manual for Courts-Martial, Article 133 includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman.  Applicant was clearly on notice that his sexual relationship with the wife of his former supervisor was a central factor in the allegation.  Much of applicant’s defense then and now is that his former supervisor’s marital relationship was merely technical and of no consequence.  This argument makes no sense unless applicant, and his attorney, clearly understood that the adulterous nature of the relationship was a critical element of the conduct unbecoming charge.

The applicant’s argument that he was not given a copy of the SJA’s advice to the commander that he states he read upside down while it was on the paralegal’s desk is without merit.  While he is entitled to view the evidence against him, he is not entitled to a copy of any advice that may be given by the local SJA to the commander.

A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.

The complete evaluation is at Exhibit C.

AFPC/DPPPE recommends denial of the applicant’s request to void his OPR closing out 27 Dec 98.  After a further review of the matter of the term “unprofessional relationship” with AFPC/JA, they conclude that the wording of the OPR is not unfactual.  Had the OPR stated that the applicant was given an Article 15 for unprofessional behavior, his case might have merit.  However, the rating chain was simply documenting the behavior of the applicant.  In fact, the rater actually chose the most conservative and benign approach to documenting the offenses detailed in the Article 15 findings.  While the rating chain had the option of including specific reference to the Article 15, to include any details contained therein, they chose to document only the fact that the applicant had engaged in a relationship that was, by its very nature, unprofessional.

If they were to agree with the applicant’s assumption that because a wrong term was used in documenting his actions, they would recommend the BCMR require the rating chain to reword the OPR to include specific wording in the Article 15.  Often in writing referral reports, raters choose wording designed to document behavior without specifically “airing dirty laundry” of a case.  This allows commanders to provide, “a second chance” of sorts to the ratee.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant begins his response to the Air Force evaluations by indicating stating “What I did was wrong, but it was not illegal.”  The applicant states that the offense he received the Article 15 for was not a violation of Article 133 of the UCMJ.  Further he indicates that the statement in his OPR, “Unprofessional relationship counter to AF policy mars the otherwise stellar record of this top performer” is inaccurate and unfairly prejudicial to his career.  The statement directly violates the two distinct Air Force Instructions that regulate Officer Performance Reports and Unprofessional Relationships.

The applicant responds that the advisory opinion prepared by AFLSA/JAJM attempts to obfuscate the issue that should have been addressed at his hearing: whether or not his behavior constituted conduct unbecoming an officer as defined by Article 133 of the UCMJ.  He contends that the author attempts to cloud the issue and appeal to the Board’s emotions by discussing the concept of adultery.  The applicant points out that he was not charged with adultery and if he had been, he would have demanded a trial by court-martial.  Applicant indicates that the Article 15 proceedings were unjust.  Although he may not have had the right to review a copy of the legal advice considered by the commander, the advisory does not discuss violation of his rights.  He requested, but was denied the right to cross-examine his former supervisor and his wife.  He was denied access to the “more mundane” tape-recorded messages that may have been exculpatory.  He indicates that he agrees with the opinion that the commander had to weigh all the evidence, including the credibility of the various witnesses, and make his decision.  If this is true, however, should not the commander have been given access to all of the messages rather than only the one out of thirteen that worked against him?  If the commander was to assess the credibility of the various witnesses, shouldn’t he have questioned those witnesses?

Applicant further indicates that he agrees with the assertion that the “on the scene” commander has “first-hand access to facts and a unique appreciation for the needs of morale and discipline in their command.”  He does not agree the commander that imposed the Article 15 fits the description of the “on the scene commander.”  He asserts that this commander was too far removed from the scene and knew nothing about the scene or the parties involved.  The commanders who might have been able to offer valuable insights into his case were never consulted or the results might have been different.

The applicant indicates that although the author of the AFLSA/JAJM advisory opinion disagrees with his arguments against the Article 15 proceedings, they do recognize that there is a problem with his OPR closing 27 Dec 98.  In fact, the Air Force attorney addresses the inappropriateness of the comment “Unprofessional relationship counter to Air Force policy mars the otherwise stellar record of this top performer” on two separate occasions.  First, AFLSA/JAJM states “We note this may be an improper characterization in violation of AFI 36-2406.”  The legal opinion later states “Nevertheless, it would appear that there is a question as to whether the language used in the referral OPR is proper in light of the definition of unprofessional relationships as contemplated by Air Force Regulations.”

The applicant contends that the advisory opinion offered by AFPC/DPPPE indicates that the author believes that his additional rater did him a favor by not mentioning the specific behaviors involved.  The author fails to realize that the term “unprofessional relationship” is a much more serious offense than the alternative phrases he suggests.  Although his additional rater was advised to change the “unprofessional relationship” reference, he refused to do so.  He further exacerbated the injustice by amplifying the comment with the words “contrary to Air Force policy.”  

The applicant discusses the requirement Air Force members have to comply with Air Force Instructions and how two Instructions were violated in his case.  Based on his additional rater’s violations of mandatory guidance, his OPR closing 27 Dec 98 should be voided.

The applicant’s complete response is at Exhibit F.

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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 took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  We disagree with the applicant’s assertion that his conduct and actions did not negatively affect the Air Force or his standing as an officer.  As the applicant stated in his rebuttal to the Air Force evaluations, what he did was wrong.  Notwithstanding his belief that what he did was not illegal, we find no evidence that the commander’s actions were improper or an abuse of his discretionary authority.  Much of the applicant’s argument seeks to share or lay blame for his misconduct on other factors beyond his own personal responsibility.  We find this unacceptable.  While we note that he has established an overall fine record of performance, we believe his actions, during the period in question, exemplify qualities not desired in Air Force officers.  Therefore, in the absence of evidence to the contrary, we find no compelling 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 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 02-00085 in Executive Session on 7 August 2002, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Jan 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 22 Mar 02.
    Exhibit D.  Memorandum, AFPC/DPPPE, undated.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Jun 02, w/atchs.
    Exhibit F.  Letter, Applicant, dated 11 Jul 02.