RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02500
		INDEX CODE:  126.03
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Letter of Reprimand (LOR) dated 26 Feb 02, his Officer Performance Report (OPR) closing 3 Jul 02, and the negative information contained in his Letter of Evaluation (LOE) closing 13 Feb 02, be removed from his records.

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APPLICANT CONTENDS THAT:

He was accused of allegations that were misconstrued, distorted, and fabricated.  There are three allegations in the LOR.  The first, that he borrowed $2.50 from a senior NCO (MSgt G---) is not worthy of written censure.  The governing AFI states that borrowing small amounts is acceptable.  MSgt G--- is contending (and lying) that he borrowed $11, that he was borrowing money from her all the time, and that she was upset about it.  However, no mention was made of anything to him nor was it mentioned in MSgt G's or the Deputy Team Chief's (LTC M---) statement.  The second accusation that he was disrespectful towards a senior ranking officer and was disobedient is a complete distortion of the truth.  The senior officer (LTC S---) accosted him in the street, off duty, in front of local pedestrians.  He felt threatened by LTC S---'s behavior and started to walk away, but recollected himself and got into a van to face more hostile behavior from him.  A senior NCO who witnesses the incident stated that LTC S--- was acting unprofessionally and acted "way out of line" and was "too harsh."  The third allegation that he assaulted a senior NCO by twice pushing her up against a doorframe, did not happen at all.  Not one of the Lithuanian nationals present saw him allegedly shove her.  In her initial statement, which was three pages long, not once did she mention that he shoved her.  It was not bought up until a month later in second statements written by her and LTC M---.  Furthermore, there was no police report, and his apartment was next to hers and he was not reassigned to another apartment.  

The investigation was tainted before it even started.  Col W--- called the Military Liaison Team (MLT) team members together and told them he was in the process of putting together a statement outlining allegations of misconduct against members of the MLT.  Naturally these individuals submitted statements and answered questions with malice and discontent.  The investigation was an internal investigation and the individual who conducted it was handpicked by --- the JCTP/MLT Director.  Applicant can't see how an internal investigation can be conducted in a fair and unbiased manner.  Furthermore, part of the investigation involved MEO/EEO matters, which were conducted by Capt S--- instead of the MEO officer.  The investigation was supposed to be about allegations of "all" members of the MLT but the focus was primarily on him.  There were several other issues going on that were not addressed or pursued.  The JAG for EUCOM conducted business in a very unprofessional and borderline unethical manner.  He was the one who formulated the questions for Col S--- and he made every attempt to insulate Maj Gen R--- from the truth.  His defense counsel pointed out how the statements contradicted each other and it was obvious that certain people had falsified their statements.  He even suggested a lie detector test, which was declined by the JAG.

Basically this is a case of a major personality conflict that got completely out of hand. Certain members of the MLT team did not care for him and likewise.  There were other infractions of other members at MLT; however, statements by LTC M--- and MSgt G--- are the ones that led to his reprimand.  If he actually committed these heinous acts, why did he only receive an LOR and not an Article 15.

In support of his request, applicant provided personal statements, timeline of events, documentation associated with his LOR; documentation associated with his LOE; AF Form 1058, Unfavorable Information File (UIF); and documentation associated with his Equal Opportunity (EO) complaint.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

After serving various assignments as an enlisted Air National Guard and Air Force Reserve member, the applicant was appointed a second lieutenant, Reserve of the Air Force on 17 Aug 96.  He was voluntarily ordered to extended active duty on 3 Jan 00.  He has been progressively promoted to the grade of captain, having assumed that grade effective and with a date of rank of 2 May 00.  

The applicant was on a temporary duty (TDY) assignment for a 6-month period assigned to the Military Liaison Team (MLT) in Lithuania.  He received a verbal counseling on 6 Sep 01, formal counseling on 11 Sep 01 and written counseling on 11 Oct 01.  He was subsequently removed from the MLT team and sent to Stuttgart-Vaihingen City Germany, to complete his TDY.  

On 6 Feb 02, he was given an LOR and an Unfavorable Information File (UIF) was established for fraternization and violation of a lawful general regulation, disrespect towards and willfully disobeying a superior commissioned officer, and conduct unbecoming an officer and gentleman and assault consummated by battery.  He received a referral LOE from his rater at HQ USEUCOM and a referral OPR from his home station supervisor.

The following is a resume of his recent OPR profile:

	PERIOD ENDING		OVERALL EVALUATION

		03 Jul 02		Contested Report
		03 Jul 01		Meets Standards (MS)
		02 Jan 01			(MS)
		02 Feb 00		Education/Training Report (TR)
		21 Apr 00			TR
		02 Jan 00		No Report Available

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AIR FORCE EVALUATION:

AFPC/JA recommends denial.  JA states that with regard to the allegation of assault committed by the applicant on a senior NCO, he has failed to present relevant evidence or any error or injustice warranting relief.  The applicant insists inconsistencies in the statements prove that the NCO and witnessing officer were both lying about the battery.  According to the NCO's first statement, he brought her into an office for a dressing down.  The NCO states that he was furious, shouted profanities, and came toward her.  She was frightened and went to the door to get away.  The applicant reached out to her and afraid he was going to grab her, she put her hands up and told him not to touch her.  As they left the office the applicant continued to yell at her.  The witnessing officer approached them and directed the applicant, who was described as in a state of rage, to go into another office while he tried to calm down the frightened and shaken NCO.  The witnessing officer described the applicants tone as vicious and threatening, and he heard the NCO say "don't you touch me, get back" in a fearful tone.  The contact in question occurred when the applicant and the NCO were standing at the door and the NCO was attempting to leave.  As the applicant exited the doorway, his shoulder hit her in the chest and pushed her against the doorframe.  The NCO states there was enough room to leave without contacting her and she believed the contact was deliberate.  The NCO went into an adjacent office and as she stood by the doorway, the applicant came by her through the doorway and again hit her with his shoulder as he passed, pushing her against the door-frame.  The witnessing officer also described the second battery in his more detailed second statement.  

JA does not find the statements inextricably inconsistent as contended by the applicant.  The NCO and the witnessing officer probably did not even know that the contact in question was an unlawful battery.  Both were describing a very unpleasant altercation involving an enraged captain and an NCO.  The applicant pointed out that there were several foreign national employees in the immediate area that did not describe the battery.  It is not clear from their statements that they were in a position to see everything that transpired.  Neither denied the battery occurred.  Both agreed that the NCO was upset and frightened when she came out of the office and one heard the NCO say the words "don't touch me."  The JA evaluation is at Exhibit C.

AFPC/DPPPE recommends denial.  DPPPE states that LOEs are written to document periods of performance too short to require a performance report, or to document periods when someone other than the designated rater supervises the ratee.  LOEs are helpful when preparing performance reports.  LOEs are given to the ratee once a performance report is written; however, since the report was referral, the rater must determine whether the OPR is necessarily based on the LOE.  When preparing an OPR, if the rater considers the referral comments serious enough to warrant permanent recording, the rater prepares a performance report and the LOE becomes a referral document attached to the report.  The applicant states that since the rater included the "inaccurate" information from the LOE in his OPR, it should be voided.  He has failed to support his allegation that the findings of the inquiry were biased, unjust, or inaccurate.  Air Force policy states that an evaluation report is accurate as written when it becomes a matter of record.  The applicant has not provided any substantiated evidence to support his contentions that the OPR is unjust, based on allegations that were completely misconstrued, distorted, and fabricated--articulated on the LOE.  The DPPPE evaluation is at Exhibit D.

AFPC/DPS recommends denial.  DPS states that absent evidence of gross misconduct or injustice, we must be cautious in intervening in a commander's decision-making authority when assigning administrative actions to subordinates.  There is no such evidence in this case.  To accept the applicant's interpretation of the situation is to accept a view of a multi-service, multi-national conspiracy to tarnish or destroy him.  That view is not supported in the package he submitted.  The package contains much evidence of him being a difficult to work with officer whose departure was welcomed by those who should have been his teammates.  His presence was described by his team chief as "a cloud over the team."  His tendency to hurl threats at those who saw things differently, even those in superior positions, is troubling for an officer.  There is evidence of a characteristic to misread a situation when he refers in his 7 Dec 01 letter to three Lithuanian nationals who he got along with very well.  Yet in his 29 Jul 02 memo he says they made it very clear that they did not care for him.  The applicant and his Area Defense Counsel do point out unexplained and troubling inconsistencies in the reports of the alleged assault on the senior NCO.  Even if, for argument, physical contact did not take place, the circumstances were not inconsistent with the likelihood that she may have well believed contact was imminent and chose to move to where others were present.  In short, whether or not the account of contact is accepted, his behavior may very well have been seen as communicating a threat.  Although there is conflicting evidence in this case, the preponderance of the evidence is consistent with the action taken by his commander.  The DPS evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that the DPS implication that there was a multi-service, multi-national conspiracy against him is a gross interpretation of his statements.  However, he does imply that LTC L--- and MSgt G--- did in fact conspire against him and dupe everyone else involved.  The other military personnel, who did not tell the whole truth, did so merely to protect themselves from possible disciplinary action.  Seeking EEO assistance should not be misconstrued as "hurling threats" or having an ulterior motive.  He has every right to seek their assistance.  DPS also implied that he had contradictory statements about his relationship with the Lithuanian Nationals.  His first statement was written immediately after he had left Lithuania and he honestly thought he was on good terms with them.  He was unaware that he offended them and was quite shocked and upset to hear that they did not care for him, which he did not learn of until months later.  In his following statements he mentioned it to show that even though they did not care for him, they still stated that they did not see him assault MSgt G---, nor did they hear him yell, scream, or curse at her.  This would have been a perfect opportunity for the Lithuanians to slam him.  Even though they did not care for him, they were being honest in their statements.  The only thing they saw was that he and MSgt G--- appeared to be upset.  She completely fabricated the yelling, cursing, and assault and battery.  DPS further implies that the assault probably did not happen and is admitting that there is little if any evidence to show that he assaulted her; however, according to his "beliefs," since she "felt" threatened, it's the same as assault and battery.  DPS seems to take pleasure in reciting the Lithuanian National's comment that he was "the worst officer he had ever seen."  His last OPR prepared prior to his deployment to Lithuania is not the OPR of "the worst officer."  He received many praises for his outstanding work, not to mention the fact that he was selected for the position he was filling in Lithuania.  Regarding the DPS statement that the preponderance of evidence is consistent with the action of Maj Gen R---, applicant states that Maj Gen R--- never really came to that conclusion himself.  He relied on the advice of the JAG and LTC L---.  His requests to meet with Maj Gen R--- were not allowed.  

DPPPE reiterated the verbiage on the LOR and states that he did not provide any substantiated evidence; however, she does not even have the decency to explain why his evidence was unsubstantiated.  

JA fails to realize that if there were yelling, screaming, cursing and someone being physically assaulted, at least one of the Lithuanians would have seen and heard some of it.  The office area at MLT is very small and one would be able to see and hear just about anything and everything, especially yelling, screaming, cursing, and physical assault.  

His complete submission, with attachments, is at Exhibit G.

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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 an error or injustice that would warrant removal of the LOR or contested reports.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, we do not believe he has suffered an injustice.  Evidence has not been presented which would lead us to believe that the commander's decision to reprimand the applicant was inappropriate.  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.  Other than the applicant's own assertions, we find no such showing here.  With respect to the contested reports, evidence has not been presented which would lead us to believe that the contested reports are not an accurate depiction of his performance and demonstrated potential for the period in question, that they were based on inappropriate considerations, that the raters abused their discretionary authority, or that the reports are technically flawed.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 AFBCMR Docket Number BC-2002-02500 in Executive Session on 3 Jun 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 Jul 03.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 28 Feb 03.
    Exhibit D.  Letter, AFPC/DPPPE, dated 28 Feb 03.
    Exhibit E.  Letter, AFPC/DPS, dated 3 Mar 03.
    Exhibit F.  Letter, SAF/MRBR, dated 7 Mar 03.
    Exhibit G.  Applicant's Response, dated 31 Mar 03.