RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01081
		INDEX CODE:  131.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His previous rank of senior master sergeant be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The punishment he received was overly harsh and unjust.  His reduction to the grade of master sergeant should have been suspended.

His case represents a failure of the system.  The system failed when judgments were made about his engagement in an unprofessional relationship with a subordinate based on speculation rather than fact.

The guidance to commanders in AFI 36-2909 about considering the impact of a relationship on the work environment and using the least necessary action to correct the situation was not followed.

Illegal tapes of personal conversations made without his knowledge were entered into evidence, taken out of context, and twisted to build a case against him.

He was punished for something he simply did not do.

He did not willfully fail to inform his superiors that a subordinate was contemplating divorce when she submitted a Date Estimated Return from Overseas (DEROS) extension package.

In support of his appeal, the applicant provided an expanded statement, copies of the Article 15, a United States Air Force (USAF) Security Police Report of Investigation (ROI), a climate survey, tape recording transcripts, DEROS package, and supportive statements.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment on 27 Sep 78.  He entered his last enlistment on 12 Dec 94 for a period of four years, which was extended on 9 Apr 97 for a period of 34 months.  Prior to the matter under review, the applicant was progressively promoted to the grade of senior master sergeant.

Applicant's Enlisted Performance Report (EPR) profile since 1990 follows:

	PERIOD ENDING	EVALUATION

	15 May 90	5
	 2 Mar 91	5
	 2 Mar 92	5
	 2 Mar 93	5
	 2 Mar 94	5
	 2 Mar 95	5
	 2 Mar 96	5
	29 Mar 97	5
	29 Mar 98	5
	27 May 99	2 (Referral)
	25 May 00	4

A USAF Security Police ROI, dated 3 Mar 99, indicates that an investigation was conducted regarding an inappropriate relationship/adultery concerning the applicant and a senior airman.  The senior airman’s spouse reported that he suspected his wife was having an affair with the applicant.  The investigation revealed that the applicant and the senior airman did engage in an inappropriate relationship.

On 8 Apr 99, the applicant’s commander notified him that he was considering whether he should recommend to the Commander, 11th Air Force (11 AF) that he should be punished under Article 15, Uniform Code of Military Justice (UCMJ) based on allegations that between on or about 1 Mar 98 and on or about 4 Mar 99, he was derelict in the performance of his duties in that he willfully failed to refrain from engaging in an inappropriate familiar relationship, to include hugging and kissing, with a senior airman, a subordinate female airman in his military work section whom he supervised, as it was his duty to do; and, on or about 26 Feb 99, he was derelict in the performance of his duties in that he willfully failed to advise and inform his superior officers that a senior airman was contemplating divorce proceedings during the time she submitted an out of cycle DEROS package, as it was his duty to do.  The applicant was advised of his rights in the matter.  After consulting legal counsel, the applicant waived his right to demand trial by court-martial, accepted the nonjudicial proceedings under Article 15, and submitted written comments for review.  On 13 Apr 99, after considering the matters presented by the applicant, the 11 AF commander found that the applicant had committed one or more of the offenses alleged and imposed punishment.  He was reduced from the grade of senior master sergeant to master sergeant and reprimanded.  The applicant appealed the punishment but it was denied by the appellate authority.  On 11 Jun 99, legal authority found that the nonjudicial proceedings under Article 15 were legally sufficient.

On 31 Aug 00, the applicant was relieved from active duty and retired for length of service, effective 1 Sep 00.  He was credited with 21 years, 3 months, and 18 days of active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial, indicating that the applicant's position is flawed and without merit.  In this case, contrary to the applicant’s assertion, the focus was not on adultery but rather the applicant’s dereliction of duty in cultivating an unprofessional relationship with a subordinate in his direct chain of command.  If adultery had been charged and proved in these circumstances that would have constituted an inappropriate relationship.  However, the converse is not true--the fact that adultery was neither charged nor proved does not mean an unprofessional relationship, under these facts, did not exist. AFI 36-2909, Professional and Unprofessional Relationships dated 1 May 1996, paragraph 2.2 defines unprofessional relationships as follows:

Relationships are unprofessional, whether pursued on or off- duty, when they detract from the authority of superiors or result in, or reasonably create the appearance of favoritism, misuse of office or position, or the abandonment of organizational goals for personal interests. Unprofessional relationships can exist between officers, between enlisted members, between officers and enlisted members, and between military personnel and members of the civilian employee work force.

According to AFLSA/JAJM, the evidence supports the allegation that the applicant had an inappropriate relationship with a senior airman.  As her supervisor, the applicant knew or should have known of his duty to refrain from engaging in an inappropriately familiar relationship with a subordinate.  The applicant stepped over the line in cultivating a personal relationship with a senior airman.  The applicant socialized with the airman in off-duty hours and by his own admission discussed the possibility of a future relationship with her.  He essentially interfered in her marriage.  His conduct is a serious deviation from the standards of conduct expected of a senior noncommissioned officer.

AFLSA/JAJM stated that while it does appear that the tape-recorded conversations between the applicant and the senior airman violated the federal wiretapping statute that does not settle the issue.  Federal law requires the consent of one of the parties.  No one disputes that the senior airman’s spouse had no authority to tape phone conversations without either of the participant’s permission.  The dispute arises as to whether that evidence may be used to support nonjudicial punishment.  Military court-martial proceedings are governed by the Military Rule of Evidence (MREs).  The MREs do not apply to nonjudicial punishment but can be instructive.  Even if the MREs were applicable, it is far from clear whether they would have required the suppression of the evidence.  Federal circuit courts of appeal are split on whether a government agency, which does not participate in the illegal taping may use the recordings for other proper purposes under a “clean hands” theory and military courts have yet to address the matter.  However, it is clear that by direction of the President, the rules of evidence applicable to courts-martial do not apply to procedures under Article 15.  Nonjudicial punishment provides commanders with an essential and prompt means of maintaining good order and discipline and also promotes positive behavior changes in servicemembers without the stigma of a court-martial conviction.  It is a proceeding denominated by Congress as “nonjudicial,” which provides only for rather modest penalties, and which does not constitute a criminal conviction.  The Supreme Court has recognized that nonjudicial punishment is an administrative method of handling minor offenses and is not a criminal prosecution.  The use of the term commanding officer’s nonjudicial punishment underscores the legislative intent to separate nonjudicial punishment from the judicial procedures of the military’s criminal law forum, the court-martial.  As noted in the report of the Senate Armed Services Committee accompanying the comprehensive amendments to Article 15 in 1962:  “Since the punishment is nonjudicial, it is not considered as a conviction of a crime and in this sense has no connection with the military court-martial system.”  The Court of Appeals for the Armed Forces recognized that Article 15 disciplinary punishments may be imposed without the essential attributes of a criminal trial, such as confrontation of adverse witnesses, representation by counsel, and reliance on formal rules of evidence.  The informal nature of nonjudicial punishment, reflecting the commander’s need to quickly dispose of minor offenses without resorting to court-martial, is more than balanced by the servicemember’s option to have the matter resolved in a formal criminal proceeding—the court-martial——bound by formal rules of evidence and procedure.

According to AFLSA/JAJM, this is a classic case of an individual seeking to have the benefits of the disposition of criminal offenses in a nonjudicial forum with limited powers of punishment if the individual is found to have committed the offenses, but seeks to have the full protection of a full criminal trial.  The applicant had the opportunity to refuse the Article 15 proceeding and have this issue decided by a military judge.  Because the investigators acted properly and with “clean hands,” AFLSA/JAJM found that the applicant’s commander appropriately considered the matters on the tapes.  They indicated that it was worth noting that it was unclear what weight, if any, the commander gave the tapes.  As the applicant noted, the tapes in their worst light do not indicate that he and the senior airman conspired to be together and nothing was said of a sexual nature.  Any error was harmless to the applicant under those circumstances.

In AFLSA/JAJM’s view, even if, out of an abundance of caution, the tapes were not considered, there was more than sufficient evidence for the commander to conclude that there was an inappropriate relationship between the applicant and senior airman.  The senior airman stated that she and the applicant were good friends and that she confided to him on several occasions about her marital problems as well her pregnancy.  She admitted to visiting the applicant at his home on at least five occasions and to talking on the phone with the applicant at least once or twice a week.  She denied having sexual intercourse with the applicant but did admit that they discussed the possibility of a future relationship together.  She also indicated that she and the applicant had hugged and kissed on two occasions.  She had dinner at the applicant’s house on Valentine’s Day.  In probably the most dramatic demonstration that this relationship exceeded that expected in the normal supervisory-subordinate relationship, she insisted the applicant be present at the birth of her child.  The applicant admitted to a close friendship; embracing the senior airman but claimed it was out of affection as opposed to passion; and agreed they spoke of a possible future together, but they agreed they were not free to pursue it.  Based on comments to the senior airman’s spouse, it was clear that the relationship was common knowledge in the neighborhood and workplace.

AFLSA/JAJM noted the applicant’s argument that he had no duty to inform his superiors that he knew the senior airman and her spouse were contemplating divorce.  They concurred that there was no specific regulatory requirement that supervisors who have knowledge of a potential divorce must so inform their superiors when an application affecting a subordinate’s DEROS is filed.  However, AFLSA/JAJM indicated that the applicant missed the overarching obligation imposed on all Air Force members, much less a senior NCO and supervisor—-the core value of integrity.  Inherent in that obligation is the duty of candor and truthfulness, particularly when the applicant’s knowledge was critical to an honest evaluation of the extension request.  The stated reason in the extension, which the applicant acknowledged, was the senior airman’s desire to keep her family together.  Knowledge that a divorce was under consideration would have cast the request in a less favorable light and would certainly been a key consideration in the decision on the application.  The applicant concealed that information.  According to paragraph 36-2110, paragraph 3.8.6.6, a DEROS request must be fully justified and may be disapproved by the commander.  Under these circumstances, AFLSA/JAJM stated that they have no hesitation in concluding that the applicant had a duty to fully inform his commander of all the facts when submitting the DEROS package in order to assist the commander in making a fully informed decision.

In AFLSA/JAJM’s view, there was sufficient evidence for the commander to determine the offenses had been committed.  The evidence supported the first allegation that the applicant was derelict in his duties when he failed to refrain from engaging in an inappropriately familiar relationship with the senior airman.  The evidence also supported the commander’s conclusion that the applicant was derelict in willfully failing to inform his superiors of information critical to a fair evaluation of the DEROS application.  Considering the aggravating factors that he was her supervisor, the senior airman was married to another military member who was junior in rank to the applicant, and the extent to which he interfered in the their marriage, this specification alone supported the punishment of a reduction to the grade of master sergeant.  When considered with the conclusion that he purposely withheld the DEROS information, the reduction was clearly within the reasonable bounds of appropriate punishment.  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 were neither arbitrary nor capricious and should not be disturbed.  The application should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant was insufficient to warrant setting aside his reduction to master sergeant, and did not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB deferred to the recommendation of AFLSA/JAJM, indicating that if the Board feels there was an injustice and sets aside the Article 15 punishment, the applicant would not be entitled to supplemental promotion consideration due to the referral EPR.  In accordance with AFI 36-2502, Table 1.1, Rule 22, airmen in the grades of SrA through SMSgt regain their promotion eligibility only after receiving an EPR with an overall rating of “3” or higher that is not referral and closes out before the Promotion Eligibility Cutoff Date (PECD) for the next cycle, if otherwise eligible and recommended by the commander. The applicant received an overall “4” on his next EPR; however, he retired 31 Aug 00--prior to the first day of the month (Jan 01) promotions were incremented in the cycle (another ineligibility factor in accordance with AFI 36-2502, Table 1.1, Rule 1).

A complete copy of the AFPC/DPPPWB evaluation, with attachment, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that he was deeply concerned about the numerous misconceptions in the advisory opinion from AFLSA/JAJM, which recommended denial on his appeal because his contentions were without merit and constituted neither error or injustice.  The applicant stated that in his appeal he clearly pointed out the error or injustice.  He did not reiterate them but pointed out what he claims were the misconceptions in the advisory, believing that it would shed even more light on the errors and injustice in his case.

The applicant indicated that he is not asking for supplemental promotion consideration in the last cycle of his active duty. He is asking that the injustice be corrected all the way back to where it started.  He should not have lost the stripe and he is asking for it back with his original date of rank.

Applicant’s complete response is at Exhibit F.

_________________________________________________________________

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.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions or his supporting documentation sufficiently persuasive to override the rationale provided by AFLSA/JAJM.  The evidence of record reflects that, after considering all matters presented by the applicant, his commander determined that he had committed one or more of the offenses alleged, and made the decision to impose nonjudicial punishment under Article 15, resulting in his reduction from the grade of senior master sergeant to master sergeant.  The applicant now requests that his previous rank of senior master sergeant be reinstated.  However, we choose not to disturb the discretionary judgments of commanding officers, who are closer to events, absent a strong showing of abuse of that authority.  Therefore, in the absence of evidence which shows to our satisfaction that the applicant’s substantial rights were violated, he was coerced to waive any of his rights, or the commander who imposed the nonjudicial punishment abused his discretionary authority, we agree with the recommendation of AFLSA/JAJM and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 02-01081 in Executive Session on 15 Oct 02, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 15 Jul 02.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 30 Jul 02, w/atch.
    Exhibit E.  Letter, SAF/MRBR, dated 2 Aug 02.
    Exhibit F.  Letter, applicant, dated 27 Aug 02.