RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  02-02532
							INDEX CODE:  110.02, 111.05,
							126.00, 131.02
							COUNSEL:  XXXX

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APPLICANT REQUESTS THAT:

1.  His nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) be removed from his records and he be refunded the $500 fine.

2.  His Officer Performance Reports (OPRs) closing 10 Feb 00 and 11 Feb 01 be removed from his records.

3.  His Unfavorable Information File (UIF) be removed from his records.

4.  His selection for promotion to the grade of major effective 1 Nov 99 be reinstated.

5.  His involuntary separation status be changed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was falsely and unjustly punished and was illegally charged with creating a hostile working environment.  There is substantial evidence of collusion and abuse of authority by the members in his chain of command.  The findings of a credentials hearing validated that he was falsely and unjustly punished under Article 15.  The undeniable result from that board exonerated him of causing sexual harassment.  

In September 1999, he was accused of sexual harassment by Ms. -----, a civilian female nurse with a history of filing three sexual harassment complaints at other military installations.  She accused the applicant of sexual harassment two days after he reprimanded her for practicing medicine without a license.  Ms. --- informed her female friends she was going to file a complaint and asked if they had anything to say which would corroborate her complaint.  Some of the possible witnesses denied that he was guilty of anything.  After she was able to gather support from her friends, she circumvented her chain of command and went directly to Major ---- with her allegations.  Major ---, who works directly for the Group Commander, personally escorted her to Lt Col -----, bypassing three layers of supervision.  Without a preliminary inquiry into the complaint, Lt Col --- suggested that Ms. --- file a sexual harassment complaint.  She wrote a one page "informal" complaint.  As part of a "settlement agreement," Ms. ---- voluntarily withdrew this complaint the day after she filed it.  Lt Col --- had the EEO counselor interview Ms. ---'s corroborators.  Through separate discussions with two of the corroborators it was discovered that after filing her complaint she told the corroborators the questions that were going to be asked during their interview.  Lt Col --- used the information obtained in the interviews and appointed two female attorneys to investigate the allegations.  The attorneys conducted 19 interviews with individuals in the Family Health Clinic and wrote all of the summarized statements for the witnesses interviewed, made the conclusion that sexual harassment occurred (even though no such complaints were filed, nor did anyone claim that they were a "victim" of sexual harassment or maltreated); and, drafted and signed off the Article 15 as legally sufficient.  Thus, the lawyers were the accusers, witnesses, and approval authority of the charges violating the guidelines of the Inspector General Investigation Officer's Guide, which defines sexual harassment.  They decided his actions were sexual harassment, when the rules are clear that "Whether such conduct is unwelcome or not is based solely on the perception of the victim" not the JAG.  Furthermore, the JAG failed to consult with the installation experts on sexual harassment, the EEO officer, to determine if sexual harassment occurred.  After the JAG officers concocted the sexual harassment charges, the two female commanders along with the JAG refused to investigate and interview the applicant's witnesses, abusing the significant power of their offices to attack and destroy his character and honor as an officer and medical clinician.  Clear evidence of collusion by illegally piling the sexual harassment charges from his Article 15 to be used against him in the credentials hearing.  According to Air Force regulations, adverse action and administrative/legal action must be handled separately.  The credentials hearing was judged by a neutral independent board of three officers who concluded that "Based on a preponderance of the evidence...The government has not presented sufficient evidence to conclude that sexual harassment has occurred."  Exoneration at such a low level of proof obligates any conception that these charges would have withstood the onslaught of a true investigation for such criminal allegations.  Regarding the Article 15 charge that he maltreated Airman First Class ---- by grabbing his crotch and gesturing as if he was going to expose his penis to her, by slapping her on the buttocks with a charge-out sheet, by stating to her "I'm not talking about your nipple," or words to that effect, when she was describing the size of a patient's mole, and, by making sexually explicit and offensive comments in her presence, counsel states that this charge suggests that Airman --- filed a complaint; however, she never filed a complaint.  In her testimony during the credentials hearing she states "I wish I never told anyone about this, and do not wish to go forward."  Lt Col --- questioned her and attempted to persuade her to file a complaint but she refused.  The Government did not call her as a witness and only used the summarized testimony.  Numerous individuals testified that she did not like the applicant and how she made rude and crude sexual comments and gestures on a daily basis.  The credentials hearing members concluded that he did not commit those particular acts as accused.  A portion of the allegation was set-aside after the credentials hearing with the exception that he made "sexually explicit and offensive comments" in Airman ---'s presence.  Even though there is no evidence to support this charge.  

Regarding the charge that he maltreated Airman --- by rubbing her shoulders, by slapping her on the buttocks with a charge-out sheet, by stating that his "balls hurt," and by gesturing toward his crotch and responding "Yeah, I have a bar code," or words to that effect when asked if you had a document with a bar code, counsel states this charge suggests that Airman --- filed a complaint; however, she never filed a complaint.  In fact she provided him with four separate statements that she personally wrote on his behalf.  She indicated she never felt intimidated or harassed by the applicant and any comments he may have made were in no way intended to harass or offend anyone.  She indicated that she did not feel that anything he may have said or done could have created a hostile working environment.  Further, she felt that any statement that she made should not be used against him.  Airman --- was also asked by Lt Col --- to go file a complaint against the applicant in order to help their case against him, but she refused to do so.  

Regarding the charge that he maltreated Staff Sergeant ---, a person subject to his orders, by sticking his finger in her ear, poking her in the side, attempting to place his hand down her shirt, and by making sexually explicit and offensive comments in her presence, counsel states that this also suggests she filed a complaint against him; she did not.  The only evidence provided by the Government was the summarized statement drafted by the JAG.  The applicant vehemently denied the charges against him in relation to Sergeant ---.  Several witnesses have submitted statements on his behalf indicating she is a chronic liar and "one who would jump on the band wagon to make herself look good."  The applicant denied a medical body fat waiver for her less than a week prior to her interview.  She was pending promotion to technical sergeant and the body fat waiver would have allowed her a loop-hole to pin on her new rank.  As with Airman ---, the Government did not call her to testify during the credentials hearing.  The credentials committee concluded that he "Did not attempt to place his hand down the shirt of a subordinate.”  The only evidence was her summarized statement, which was refuted by the applicant.  Lt Gen --- set aside the portion of the charges that involved the allegation that he attempted to place his hand down her shirt.  All the allegations should have been set aside based on findings from the credentials committee who "questioned the credibility" of Sergeant ---.  It is counterintuitive to believe, and against human nature, that a liar - with bias and motive - should be disregarded in some areas, but not others, when the lies themselves are unsupported and come from the same mouth.  

Regarding the charge that he maltreated Ms. --- by hugging her from behind, rubbing her shoulders and back, and by stating to her "When you were bending over, your ass looked so good" or words to that effect, counsel states that she filed an informal complaint with the EEO office.  She claimed her first "negative encounter" with the applicant occurred 10 May 99 when he entered Captain ---'s office and asked for sugar for his coffee.  She falsely claimed that he grabbed his genital area and said "Oh, I've got my sugar right here."  She also wrote in her informal complaint that she was talking with Captain --- in the hallway near her office and the applicant came up behind her and gave her a bear hug.  There were numerous facts presented to dispute her allegations.  The applicant stated he has never put sugar in his coffee.  In Capt ---'s statement, she stated, that she had no recollection of the applicant making this statement and that she would have remembered something in regards to that kind of statement.  This testimony by Capt --- along with the applicant's statement is clear proof Ms. ---- fabricated this incident.  During a Supplemental Preliminary Inquiry Dr. --- was asked about the "bear hug" incident and she stated "I do not remember ever seeing him hug or touch Ms. ---."  Regarding the lie by Ms. --- that the applicant told her "When you were bending over, your ass looked so good," she even contradicted her statements during the credentials hearing when asked to talk about the incident.  She replied, "He said that when I was bent over he wanted to slap me on the ass."  The final outcome from the credentials hearing committee was, "No witness was present to verify the allegation.  In addition, there was substantial evidence presented by several individuals which questions the motivation and truthfulness of Ms. ---."  Lt Gen. --- did not set aside her complaint or the entire Article 15.  The applicant repeatedly told his entire chain of command from day one that she lied about him.  No one checked her history of false complaints, or questioned witnesses who disputed her stories.  The instant that the charges were heard, they were refuted.  The applicant was punished with an Article 15 for charges that were proven false by the very first neutral listener. 

Regarding the charge that he maltreated Ms. --- by attempting to touch her left breast, by rubbing her shoulders, and by stating to her, "I can't concentrate in church because of a 15-year-old girl with short shorts and large breasts," or words to that effect, counsel states this final charge stems from the summarized statement.  She did not file a complaint against the applicant and was not called to testify during the credentials hearing to validate her summarized statement.  The charge that he maltreated her by attempting to touch her left breast was set aside by Lt Gen ---.  Lt Gen --- did not set aside the other charges which were addressed in the Article 15, such as, "rubbing her shoulders," and his alleged statement to her that "I can't concentrate in church because of a 15-year-old girl with short shorts and large breasts."  In his 25 Oct 99 written reply to the Article 15 proceedings, he provided a written statement by Senior Airman --- rebutting the church issue.  Airman --- stated to the applicant that he was trying to change his way of life and that he (---) was now attending Church but he (---) found it difficult to concentrate because of the 15-year-old girls with short shorts and large breasts.  The applicant told Ms. --- a patient mentioned to him the difficulties he was having and gave the example --- gave him.  The Government did not call --- as a witness.  This portion of the charges was not listed as an allegation in the credentials hearing, thus the committee was not afforded the opportunity to hear evidence of what was actually stated to Ms. ---.

These administrative charges were improperly and illegally given to Major --- by Lt Col --- to increase the probability of guilt into the credentials board that, in fact, found that none of these charges were substantiated, and concluded Ms. --- was a liar.  The government did not produce three of their six "witnesses" to testify.  Airman --- and Captain --- (two of the six) testified for the applicant refuting the very charges in which they were named as victims.  As for the charges of maltreating subordinates on divers occasions by rubbing their backs, squeezing their shoulders and hugging them, the credentials committee members found that he did not maltreat anyone.  They found he did do these things, but only "in a supportive, non-sexual manner."  Many of the character references that were written on his behalf stated that he was a compassionate and friendly individual.  Not a single individual perceived his actions to be of a sexual nature.  Clearly this was a misrepresentation of the facts by Lt Col --- and JAG. 

According to the Inspector General Investigation Officer's Guide, the standard of proof for investigations is "Proof by a preponderance of the evidence" and "the preponderance standard only requires that you are satisfied that the greater weight of the evidence supports your findings and conclusions."  JA interviewed 19 individuals and made the conclusion sexual harassment occurred to six females.  Thus, six of 19 "summarized statements" written by JAG gave them the justification to tell Lt Col ---, "the allegations of sexual harassment against the applicant are substantiated by numerous accounts of several witnesses."  Meaning: the statements by two-thirds of the individuals ("greater weight of the evidence") who worked with the same six females were ignored.  Of the six "witnesses" identified by JAG and Lt Col ---, two provided written statements in his defense, three were not called as Government witnesses, and the main complainant lied under oath.  The conclusion was not justifiable and Lt Col --- failed to investigate conflicting statements against three of the six "witnesses."  Moreover, according to the Air Force Commander-Directed Investigation Guide, "The Investigating Officer should be trained to conduct thorough, unbiased investigations based on fair and objective fact-finding."  The record and facts make it clear that both of the JAG officers were impartial investigators, and the results of their investigation were clearly inconsistent with the same group of witnesses that the JAG office brought to the credentials hearing.  The impartial board shot down every single charge that the JAG officers concluded to be "substantiated."  Testimony from the credentials hearing revealed Lt Col --- provided these two attorneys with the results of interviews that were conducted by the EEO office four days prior to the JAG interviews.  At no time were these women or any other witnesses asked if they felt sexually harassed or maltreated by the applicant.  The witnesses stated that the JAG officers started their line of questioning with, "We heard that you have information pertaining to the allegations of sexual harassment by Captain ---."  The results of the biased and tainted investigation by the JAG officers demonstrate these two attorneys heard what they wanted to hear, then turned a blind eye to the truth to formulate their conclusion.  Lt Col --- appointed the JAG officers to investigate and include conclusions about her suspicions the applicant sexually harassed his co-workers.  Lt Col --- told two enlisted female witnesses to go file a complaint with MEO, as it would help them in the case against him.  This is a clear departure from her duty to impartially investigate the case, and make charges only if justified by the evidence.  The injustices continued when the applicant filed an Inspector General (IG) complaint against Lt Col --- for submitting a false official statement.  After consulting the JAG, the IG replied that his allegation was not appropriate for IG investigation and that the allegation fell under the purview of the AFBCMR.  Sexual harassment is clearly defined in Title 10, USC, as conduct (constituting a form of sex discrimination) that involves unwelcome sexual advances, requests for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature when the effect unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment, and is so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the work environment as hostile or offensive.  Not a single female identified themselves as a "victim" or filed a formal complaint against him stating that his alleged behavior was interfering with their ability to perform their duties or that he created an work environment that was perceived to be hostile, offensive, or intimidating.  A copy of his appeal to his Article 15 that was submitted during the credentials hearing did not have any of his character reference letters or seven other attachments.  Counsel can only conclude the USAF/CV was not provided a complete copy of the applicant's appeal to his nonjudicial punishment, clearly a violation of due process of the law in his defense against the illegal charges. 

The applicant's supervisor from 15 Aug 98 through 5 Dec 99, was approached by squadron leadership to sign a prepared OPR.  His supervisor states in a letter that he did not write the OPR or the comments in section VI and that he did not and would not have marked "Does Not Meet Standards" in section V.  Clearly he was coerced into signing the referral OPR.  He further states that he had no knowledge of the applicant's alleged offenses prior to his removal from the clinic.  His supervisor from 23 May 00 through 11 Feb 01, was coerced into writing the referral OPR prior to the final outcome of the credentials hearing.  He has agreed to submit a revised OPR and replace the current OPR because he was not afforded an opportunity to review the final outcome of the credentials hearing at the time the OPR was written.  

The applicant went to AFPC to review his officer selection record and to provide a written statement to the board president.  Upon review of his selection file, he discovered that his replies to his referral OPR and Article 15, and the relevant attachment that identifies the specific portions of the Article 15 that were set aside were missing.  His personnel record at the Military Personnel Flight has all the illegal charges blacked out.  On his acknowledgement of receipt of the Article 15 that was reviewed by the promotion board, someone other than the applicant lined through the word "have" under his endorsement, indicating that he did not attach correspondence for the appellate authority to consider.  As a result of these unethical tactics he was passed over for promotion and forced to involuntarily separate from the Air Force.  

In support of his request, applicant provided his counsel's brief, a letter from his spouse, documents associated with his nonjudicial punishment, documents associated with his referral OPRs, documents associated with his credentials hearing, documents associated with the Report of Inquiry, documents associated with his IG complaint, a copy of his OSR, and documents associated with his selection and removal from the promotion list.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant, a prior service enlisted member, served various tours as an active and Reserve member.  He was appointed a second lieutenant, Reserve of the Air Force on 7 May 90.  He was progressively promoted to the grade of captain, having assumed that grade effective, and with a date of rank of 21 May 92.

On 21 Oct 99, the applicant was notified by his commander of her intent to recommend imposition of nonjudicial punishment under Article 15 of the UCMJ.  The specific reasons for this action were six allegations of sexual maltreatment and making sexually explicit and offensive comments.  He was advised of his rights in this matter and acknowledged receipt of the notification on 29 Oct 99.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided written and oral presentations to his commander.  On 6 Jan 00, after consideration of all the facts, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  He was ordered to forfeit $1,500 pay per month for 2 months and was reprimanded.  The portion of the pay in excess of $250 per month was suspended for 6 months.  The applicant appealed his punishment to USAF/CV.  His appeal was denied.  

A credentials hearing was conducted on 28 Nov 20 to address 18 allegations of professional misconduct.  The hearing substantiated six of the allegations and recommended restriction of his privileges for a minimum of six months, direct supervision by a credentialed provider, additional formal training in sexual harassment policies, psychological reevaluation, and referral of his practice to the commander for further action if he fails to complete the recommendations.  The commander did not take any adverse privileging action, reinstated his clinical privileges, and mandated additional training.  
Subsequent to the credentials hearing, the imposing commander set aside that portion of the nonjudicial punishment which called for forfeitures of pay in excess of $250 pay per month for two months.  He amended certain portions of the specifications by lining out those portions which he decided the applicant did not commit and left those portions intact which he still found the applicant committed.  

The applicant was selected for promotion to the grade of major by the Calendar Year 1999A (CY99A) Major Central Selection Board.  On 21 Jun 99, the Secretary of the Air Force removed his name from the list of officers selected for promotion by that board.  He was considered for promotion to the grade of major by the CY02 Major Central Selection Board, which convened on 19 Feb 02.  He was not selected for promotion by that board and he was not offered selective continuation.  As a result of this nonselection, an involuntary separation date of 31 Dec 02 was established.  The applicant was discharged on that date.

The applicant's recent OPR profile is as follows:

	PERIOD ENDING				OVERALL EVALUATION

	10 Feb 02	Meets Standards (MS)
	10 Feb 01*	Does Not Meet Standards
	10 Feb 00*	Does Not Meet Standards
	26 Feb 99	Training Report
	07 Jan 99	MS
	12 Aug 98	Report Not Required
	27 Jun 98	MS
	27 Jun 97	MS
	27 Jun 96	Report Not Required
	3 Feb 95	MS

* - Contested Reports

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AIR FORCE EVALUATIONS:

AFMOA/SGZC recommends denial of applicant's request.  SGZC states that the adverse privileging action was done according to Air Force Instruction 44-119.  It was appropriate and reasonable for the commander to investigate the patient and coworker allegations of sexual harassment and professional misconduct, since the possibility of patient harm was evident.  To ignore these allegations would have been negligent.  If it is found that the allegations were fallacious and the administrative actions are expunged, it would be appropriate to expunge the adverse privileging action file as well.  The SGZC evaluation is at Exhibit C.

AFLSA/JAJM recommends denial of applicant's request.  JAJM states that the imposing commander set aside part of the punishment a year after it was executed.  He set aside some of the findings by amending the specifications in an attachment to the set aside action.  No guidance exists on how to effect an imposing commander's decision, a year after an Article 15 action was completed, to amend earlier findings that an offender committed certain offenses.  Lt Gen --- carefully considered the evidence as well as the numerous documents submitted through his attorney.  In fact, before he decided whether to impose punishment, he raised several issues about the applicant's situation.  In response, another inquiry was conducted.  Among the findings was corroboration that he did say something to the effect of "Yeah, I've got a bar code" while gesturing to his crotch.  Lt Gen --- wrote letters to the applicant's attorney and the Secretary of the Air Force outlining his reasons for amending some of the findings and recommending the applicant’s removal from the promotion list.  He told the applicant's attorney that he agreed to review a transcript of the credentials hearing to determine whether any evidence presented would persuade him to alter the Article 15 or change his mind regarding the removal from the promotion list recommendation.  In light of the evidence presented, he changed some of the findings in the Article 15 and altered certain aspects of the promotion removal recommendation.  Specifically, he set aside certain Article 15 specifications, or portions of specifications, that were not supported by the evidence presented at the credentials hearing.  Lt Gen --- considered all matters to absolutely ensure due process.  The amended Article 15 and the promotion removal action are in his judgment, still proper and supported by substantial evidence.  

Unless his findings are either arbitrary or capricious, they should not be disturbed just because others might disagree.  When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended to simply second-guess the appropriateness of the judgments of commanders.  Commanders have first-hand access to facts and a unique appreciation for the needs of morale and discipline in their command.  The issues raised by the applicant and his attorney are not with the process but with the result.  It is extraordinarily difficult to view Lt Gen ---'s actions as other than reasoned and carefully considered.  JAJM is not persuaded by the applicant's contention that there is a conspiracy to harm the applicant.  While he places great weight in the contrary findings of the credentials board, those findings were not binding on decision makers in the nonjudicial punishment action.  While not required to do so, Lt Gen --- carefully considered the transcript and conscientiously modified the nonjudicial punishment action as noted.  The applicant has provided no evidence of a clear error or injustice.  However, his records should reflect Lt Gen ---'s decisions.  If he did forfeit pay, he should be reimbursed for any forfeitures in excess of $400.  The JAJM evaluation is at Exhibit D.

AFPC/DPPP recommends denial of the applicant's request.  DPPP states that the 10 Feb 00 OPR was marked down in "Leadership Skills and Professional Qualities."  In the rater's comments the rater states "During this time period, member fell below AF standards; made sexually explicit remarks to coworkers creating a hostile working environment; counseled regarding interpersonal relations and communications."  The additional rater states "During this period, he was counseled for having created a hostile working environment."  The credentials hearing substantiated four allegations that he made sexually explicit remarks.  His attorney contends that his conduct did not constitute sexual harassment, but the board reports specifies that the actions "were not conduct amounting to sexual harassment of a civilian nurse..."  It appears the committee did not consider whether his actions created an intimidating, hostile, or offensive work environment.  The Report of Inquiry substantiated sexual harassment.  It is important to note that the rater's comments do not state he was counseled for sexual harassment, but for "having created a hostile working environment."  Unlike the term "sexual harassment," use of the term "hostile environment" does not require the user to meet any legal standards or definitions.  

The 10 Feb 01 OPR was referred due to Section V being marked down in "Judgment Decisions."  The rater states he "Demonstrated poor judgment when he exposed his genitals to a female provider while seeking a non-urgent medical opinion without an appointment and without a chaperone present."  The additional rater states he "Obtained informal genital exam from female provider--propriety of request questionable--received LOA.  Single incident occurred in time of close scrutiny ...decision-making under circumstances unwise."  The credentials hearing committee considered the allegation that he wrongfully exposed his penis to a co-worker" and was split 2-1.  The majority found that it was wrongful exposure.  The dissenting member felt that the provider's agreement to examine him created a patient/provider relationship and therefore the exposure was not wrongful.  The OPR does not state that he wrongfully exposed himself.  It states that he unwisely obtained an informal exam of his genitals in a manner, and at a time, that showed poor judgment.  

The rater submitted a letter of support stating "Had I known that a privileging hearing would exonerate [the applicant] of these professional charges I would not have signed off on the OPR."  However, the hearing did not exonerate the applicant; it substantiated the charge as mentioned in the report.  Although the rater states that he would have written the report differently had he known the results of the hearing committee, the comments of the OPR actually closely mirror the committee's findings written months later.  The applicant's attorney's claims that the applicant was exonerated in 17 of the 18 charges is misleading.  Four allegations were determined to be substantiated, but the committee ruled they did not impact patient care or breach the standard of conduct.  Finding 18, by 2-1 split vote, was found to be substantiated, with additional findings that he breached the standard of conduct and that the incident had the potential to adversely affect patient care.  

There is an allegation of coercion, or improper command influence, in the writing of both OPRs.  The 10 Feb 00 rater states that he had minimal involvement in writing the report and did not write the rater's comments.  However, he does admit that he had access to the investigation material and does not state that he felt he did not have sufficient information to render a fair and accurate assessment.  The rater of the 10 Feb 01 report explains he believed the incident was a patient/provider consultation and had left the incident off the report until after a consultation with the JA.  In order to show coercion there must be clear evidence proving that a superior violated the evaluator's rating rights.  Raters are charged with acquiring information from as many sources as possible in preparing performance reports, and evaluators who change their evaluations after talking with superiors have not necessarily been coerced.  Neither rater claims they were coerced and no evidence exists to show coercion.  In fact, the rater of the 10 Feb 00 OPR admits that he simply "followed the lead" of his supervisors.  The 10 Feb 01 rater states that he "felt compelled to sign off on the referral OPR."  

The reports in question were processed in accordance with the applicable instructions.  A commander directed investigation as well as a formal hearing within the applicant's community have substantiated the statements contained in the reports.  The reports are neither inaccurate nor unjust.  The DPPP evaluation is at Exhibit E.  

AFPC/DPPRS recommends denial of the applicant's request.  DPPRS states his discharge was consistent with the procedural and substantive requirements of the discharge regulation and the Uniform Code of Military Justice.  AFI 36-3207 does not allow for extension of an active duty officer unless action has been taken with a view to trial by court-martial.  The DPPRS evaluation is at Exhibit F.

AFPC/DPPPO recommends denial of the applicant's request.  DPPPO states that both Congress and DoD have made clear their intent that when errors are perceived to ultimately effect promotion, they should be addressed and resolved through the use of special selection boards (SSBs).  Based on the evidence provided, DPPPO recommends denial of his request for direct promotion.  The DPPPO evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The majority of the JAJM memorandum is devoted to policy of issuing nonjudicial punishment and he fails to respond to the injustices created by the --th Special Operations Wing Judge Advocate and Air Force Special Operations Command Judge Advocate.  Evidence previously provided clearly identified plain misconduct by the JA.  Any minimal unbiased inquiry would have shown that the applicant did not sexually harass anyone.  The United States Equal Employment Opportunity Commission (EEOC) Policy Guidance on Current Issues of Sexual Harassment also recognizes that unwelcome sexual conduct that unreasonably interferes with an individual's job performance or creates an intimidating, hostile, or offensive working environment can constitute sex discrimination, even if it leads to no tangible or economic job consequences.  There are absolutely no records or evidence to indicate any individual in the --th Medical Group could not perform his or her job due to unwelcome sexual conduct.  Furthermore, there are no documents or statements by anyone that he created a hostile, intimidating or offensive environment.  The applicant did submit documents which reflected no evidence of sexual harassment during the period 1 Mar 99 through 23 Sep 99.  Applicant also submitted 11 letters from individuals who worked in the Family Practice Clinic during this period which stated he did not create a hostile, intimidating, or offensive environment.  Moreover, another key factor noted by the EEO in determining if sexual harassment occurred, "The harasser's conduct must be unwelcome."  The government did not submit any evidence indicating his alleged comments were unwelcome.  He submitted letters and testimony by individuals who the government listed as "complainants" stating they were never offended by any statements or actions.  No one confirmed the JAG charges except the JAG.  JAJM neglects to show the partiality of the -- SOW/JA and AFSOC/JA.  Lt Gen --- was significantly influenced by information he received by the JAGs.  Lt Col --- submitted a memorandum with 18 false statements through the JAG after his interview with Lt Gen ---.  A commander's word carries an incredible amount of weight with senior leadership.  In the end, Lt Gen ---'s decision was based on the applicant's word against Lt Col ---'s.  The JAG recommended two of his female Staff Judge Advocates to conduct the initial interviews and then he appointed another female officer to conduct a "supplemental" inquiry.  Her report rehashed the same information from the JAG report of inquiry dated 30 Sep 99.  The applicant was never contacted or interviewed during her supplemental inquiry.  Her additional "clarification" statement by A1C ---l hearing.  AlC ---- was not called as a government witness.  

The applicant was denied due process when he submitted his appeal package to the nonjudicial punishment on 25 Jan 00. There is significant evidence that an incomplete appeal package was forwarded to the appellate authority.  The omission of these documents means that the Vice Chief review process was compromised.  This alone conflicts with comments of the author of the legal advisory opinion that "So long as they are lawfully acting within the scope of authority granted them by law..." Omitting 23 documents in an appeal package is not acting "within the scope" of the law.  JAJM fails to dispute the charges of fraud by the JAG for failing to submit the set aside portions of the nonjudicial punishment in his promotion package as well as his personnel file in the local MPF and refund portions of his $500 fine.  Also, JAJM fails to comment on the illegal actions of altering an official document by JAG and not submitting the applicant's appeal to his second referral OPR in his February 2002 promotion file.  JAJM's statement that "The applicant refused to sign an acknowledgement that he had seen the set aside action" is a false statement and a misrepresentation of the facts.  The applicant went to consult counsel prior to signing it.  When he returned to sign it, he was informed that his commander had already typed in, "Member refused to sign until he can review and discuss with his attorney."  His leadership fabricated the 18 allegations of professional misconduct.  Of the 18 allegations, 14 came directly from Lt Col ---'s nonjudicial punishment.  The applicant had $500 withheld from his April 2000 paycheck.  

SGZC fails to note that the Medical Group Commander, Colonel ---, signed a notification of revocation of privileges letter with four allegations.  On 25 Jul 00, Major --- signed a notification of hearing with 18 allegations listed.  Lt Col --- personally gave Major --- these additional administrative charges to pile on the initial four.  The sexual harassment allegations were fabricated and Major --- and Lt Col --- escalated the allegations to eliminate the applicant.  He was well liked by the majority of his coworkers and received numerous "kudos" from patients.  At no time was a patient "at risk."  Many of his patients wrote character reference letters on his behalf.  Lt Col --- and Major --- illegally engineered a credentials board in order to revoke his medical credentials.  They illegally listed the 14 administrative charges in violation of AFI 44-119.  The three medical providers who sat on the credentials board were the first impartial board that heard the 14 sexual harassment charges.  He was acquitted of sexual harassment on every charge.  What SGCZ determines as "substantiated" are half-truths.  For example, the charge of hitting Airman --- on the rear end with a charge out folder did occur.  What SGZC is not identifying, is that Airman --- herself said this incident was "an accident."  Same for the "bar code" incident, Airman --- stated under oath, he was getting his ID card out of his front pocket.  The JAG twisted this information to imply he was grabbing his genitalia.  Finally, SGZC addresses administrative issues in her memorandum, which have no basis on credentialing.  His credentials were reinstated simply because he did nothing inappropriate and patients were not at risk.  The commander maintained the "company line" and commented on the sexual harassment allegations even though there was no evidence from the credentials hearing to support he sexually harassed anyone.  His decision to reinstate the applicant's credentials was based on his meeting the medical standard of care, not administrative issues.

The facts as they pertain to the first OPR dated 10 Feb 00 are: (1) The rater was not given any documents which my client submitted in his defense; (2) there are no records indicating my client was "counseled" by the rater or endorsing rater; (3) the rater did not write the OPR as required by AFI's 36-2402 and 36-2406, and (4) there were no complainants of sexual harassment or complainants charging my client with creating a hostile, offensive, intimidating environment.  Lt Col --- presented the rater with the Report of Inquiry in which the JAG wrote and determined sexual harassment occurred.   The rater was not given a copy of his reply to the nonjudicial punishment in which he vehemently denied causing a hostile, intimidating, offensive environment.  Basically, the rater was given a stacked deck against the applicant.  This is clearly improper command influence.  As for the OPR dated 10 Feb 01, the rater clearly states if he had had the results of the credentials hearing and the fact he was identified as a patient seeking medical advice from a board certified medical provider, he would not have made the OPR a referral report.  The commander agreed with the dissenting member of the credential board that it was a patient/provider encounter.  The rater was waiting on the commander's decision on this topic prior to signing the OPR.  The rater states the commander referred him to the JAG who "highly encouraged" him to make a comment on the OPR about "poor judgment."  DPPP states that allegations 11-14 were substantiated by the credentials board.  This is not true.  The four allegations that she is referring to dealt with conversations between the applicant and Airman ---.  Airman --- testified and stated nothing said to her was ever interpreted as sexual harassment.  She also wrote a letter stating he did not create a hostile, offensive, intimidating environment.  Simply put, these allegations are not from "complainants," they are fictitious complaints derived from the JAG's conflict of interest in this case.  Statements were taken out of context in order to crucify the applicant.  The nonjudicial punishment was unwarranted simply because there were no complainants or records to indicate he sexually harassed anyone or created a hostile, intimidating, offensive environment.  Nowhere in the Government's opinions has anyone from the military or civilian EEO offices provided an expert opinion on this case.  This case comes down to poor leadership and failure to investigate all the facts of this case in an impartial manner. 

In further support of his request, applicant provided his counsel's brief, EEOC Form 106, a copy of his April 2000 Leave and Earnings Statement, an email communication, and a draft of his 10 Feb 01 OPR.  His complete submission, with attachments, is at Exhibit I.

_________________________________________________________________

APPLICANT'S APPEARANCE AT FORMAL HEARING:

1.  The applicant appeared before the Board with counsel and his spouse as a witness and testified under oath.  During the hearing counsel and the applicant reiterated their previous contentions that the applicant's complaint is that he has been denied substantive due process, the right to an Air Force commission and active duty as an Air Force officer based on some very basic denials of procedural process.  Counsel contended that the medical facility at Hurlburt Field employed improper procedures, failed to investigate the case, pursued some issues that were prohibited by regulation from pursuing, conducted some of the activities on the basis of a personality complaint, and that applicant's commander, in appointing two legal members, basically functioned as the sheriff, the prosecutor, and the judge in this case, brought forth evidence which was incomplete, uncorroborated, unsigned, and basically converted an administrative issue into a criminal case.  

2.  The following additional information was provided in response to specific inquiries by the Board members:

a.  Response to the question as to why his supervisor did not intercede during the investigative process, applicant stated the complaint was filed on September 20, and on September 23, he was notified by Lieutenant Colonel L--- that he was relieved of his duties in the clinic.  When he asked why, he was told "This conversation is over. Contact the ADC."  He contacted his immediate supervisor and flight commander and was told by both that they had no knowledge of what was going on.  His flight commander and supervisor were spoken to by Lieutenant Colonel L and told not to say anything. 

b.  When asked what advice he was given by the Area Defense Counsel (ADC) to accept the Article 15 proceedings in lieu of court-martial action, applicant stated that the ADC was not immediately available.  He was not advised of the charges against him until October 11, after an ADC became available and advised him of the charges.  He initially insisted on court-martial proceedings but his counsel advised him that he should accept Article 15 proceedings because if the court-martial found him guilty of at least one of the allegations it could result in his administrative separation from the Air Force.  At the time he was unaware of Major P---'s accusations that he was a troublemaker that was causing dissention and felt that he could trust the leadership to make an unbiased and fair decision with all the evidence presented.  After a year and a half of asking thousands of questions and through Freedom of Information Act (FOIA) requests he was able to determine that the actions of Major P--- and Lieutenant Colonel L--- were the root of the problems.  

c.  When asked to elaborate concerning the issue that he performed an examination without a chaperone present and why it took Airman F--- eight months to state that she had been in the room, applicant responded that he was told by Airman F--- that during the course of the investigation no one questioned her at all or asked her whether or not she was present as a chaperone. She was unaware that an investigation was going on.  She was aware that he was to see males only and that the examination was an issue.  Applicant stated that he told investigators that she was present but those that performed the internal investigation and the OSI investigators did not contact her at all.  

d.  When asked if Colonel S--- was aware that he had a chaperone present, applicant responded that while performing Colonel S---'s cycle ergometry test he spoke with him and told him that a chaperone was present during the examination.  Colonel S--- advised him that he had no knowledge that a chaperone was present.  He advised Colonel S--- that the chaperone was Airman F--- who had been kicked out of the Air Force.  Shortly thereafter, Colonel S--- PCS'd to Little Rock AFB and nothing was done about the Article 15.  Applicant added that prior to that conversation he was not allowed to speak to Colonel S--- unless he went through the JAG first.  He had to submit all questions to Colonel S--- and to General B--- in writing to the JAG.  He was never afforded the opportunity to speak with them.

e.  When asked to address the Article 15 issues and how they related to the credentials hearing, applicant responded that in accordance with AFI 44-119, paragraph 7.6, the administrative issues were not supposed to be part of the credentialing hearing.  He was initially advised that four allegations were being considered.  Additional allegations were introduced by Major P--- and Lieutenant Colonel L---and allowed to remain by Colonel E---, bringing the total issues under review to 18.  To his benefit every allegation was addressed, and harassment and the creation of a hostile environment was found unsubstantiated.  

f.  When asked to address the LOC he received from Lieutenant Colonel L---, applicant responded that Lieutenant Colonel L--- implied during the hearing and to General B--- that he failed to follow Group instructions concerning third-party chaperones, but he did not.  The LOC states that he needed to be made aware of third-party chaperone rules and follow that guideline.  It does not state that he failed chaperone guidelines.  Applicant stated that he was told by Lieutenant Colonel L--- that the purpose of the LOC was "Because an investigation was conducted, I have to give you this LOC."

Applicant's complete sworn testimony and his response to the Board's questions are contained in the Transcript of Proceedings at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  After carefully assessing the applicant's sworn testimony, his responses to pertinent questions, the evidence of record, and additional documentation submitted, the Board finds that sufficient relevant evidence has been presented to demonstrate the existence of error or injustice that warrants corrective action.  

4.  With respect to his Article 15 punishment, the Board notes that the basis for the Article 15 punishment was allegations of sexual maltreatment and making sexually explicit and offensive comments.  The allegations stemmed from a complaint made by Ms. S--- to Major P--- accusing the applicant of sexual behavior.  It is the Board's opinion that by reporting the incident to Major P---, who was not in the applicant's chain of command, Ms. S--- did not follow proper reporting procedures.  In addition, it appears that the subsequent investigation into the matter, initiated by Lieutenant Colonel L---, which consisted essentially of the interviewing of numerous witnesses by two officers assigned to the JAG office was improper.  This matter was further compounded by the failure of the investigating officers to follow proper investigative procedures.  They provided summarized statements of the individuals they interviewed, without their knowledge.  Further, it is important to note that several of these individuals have refuted the allegations made in the summarized statements.  We find that there was no legal basis upon which to proceed with the allegations of sexual harassment in the absence of actual complaints from those that were interviewed.  The Board further noted that the credentials hearing committee concluded that all but six of the allegations were unsubstantiated.

5.  The Board further noted that as a result of the findings of the adverse action committee and at the request of the applicant's counsel, the imposing commander reviewed the actions taken against the applicant.  After reviewing the documentation presented, the commander made a commendable effort to ascertain the facts of the issues at hand and ensure the applicant was provided proper due process.  After an investigation and based on the information he was provided, he amended the Article 15 by setting aside a portion of the punishment and findings.  However, the commander determined that both the amended Article 15 and the promotion removal action were supported by the evidence.  Based on the evidence provided by the applicant, we are persuaded that the commander was misinformed and information that could have proven favorable to the applicant was not provided to him, further perpetuating the appearance that the deck was inappropriately being stacked against the applicant.  

6.  In view of the above findings, the Board majority strongly recommends that the Article 15 be declared void and expunged from applicant's records.  The Board unanimously believes that the decision to remove the applicant from the promotion list, and provide him a referral OPR and establish a UIF were the direct result of the aforementioned Article 15 action.  Thus, the Board believes that they should be removed as well.  While his OPR closing 11 Feb 01, was not a direct result of the Article 15 action, the Board believes that since the incident which led to the referral comments was directly associated with the Article 15 action, removal of that report is appropriate.  In order to ensure the applicant receives fair and equitable future promotion consideration, we believe it would be appropriate to recommend that prior to his consideration for promotion to lieutenant colonel in-the-primary zone, he should receive a minimum of two annual OPRs with at least 250 days of supervision in the grade of major.  Accordingly, the Board majority recommends that his records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a.  The nonjudicial punishment under Article 15, UCMJ, initiated on 21 October 1999 and imposed on 6 January 2000, be set aside and expunged from his records, and all rights, privileges, and property of which he may have been deprived be restored.

	b.  The AF Forms 707B, Company Grade Officer Performance Reports, rendered for the periods 9 January 1999 through 10 February 2000, and 11 February 2000 through 10 February 2001, be declared void and removed from his records.

	c.  The Unfavorable Information File (UIF), to include all documentation contained therein, be declared void and removed from his records.

	d.  He was not discharged from the Air Force on 31 December 2002, but on that date he continued to serve on extended active duty and was ordered permanent change of station (PCS) to his home of selection for the convenience of the government.

	e.  His name was not removed from the list of officers selected by the Calendar Year 1999A Major Selection Board.

	f.  He was promoted to the grade of major with a date of rank and effective date of 1 November 1999.

	g.  Any nonselections for promotion to the grade of lieutenant colonel in-the-primary zone prior to receiving a minimum of two Officer Performance Reports with at least 250 days of supervision, in the grade of major, be set aside.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2002-02532 in a Formal Hearing on 7 May 03, under the provisions of AFI 36‑2603:

By a majority vote, the Board recommended approval of the applicant's requests.  voted to grant the applicant's requests with the stipulation that the Article 15 be removed from the applicant's selection folder but not from his permanent records, and elected not to submit a minority report.  

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFMOA/SGZC, dated 8 Oct 02.
    Exhibit D.  Letter, AFLSA/JAJM, dated 5 Nov 02, w/atchs.
    Exhibit E.  Letter, AFPC/DPPP, dated 12 Dec 02.
    Exhibit F.  Letter, AFPC/DPPRS, dated 16 Dec 02.
    Exhibit G.  Letter, AFPC/DPPPO, dated 12 Dec 02.
    Exhibit H.  Letter, SAF/MRBR, dated 16 Dec 02.
    Exhibit I.  Letter, Counsel, dated 15 Jan 03, w/atchs.
    Exhibit J.  Transcript of Proceedings.

					

AFBCMR BC-2002-02532

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

		a.  The nonjudicial punishment under Article 15, UCMJ, initiated on 21 October 1999 and imposed on 6 January 2000, be set aside and expunged from his records, and all rights, privileges, and property of which he may have been deprived be, and hereby are restored.

		b.  The AF Forms 707B, Company Grade Officer Performance Reports, rendered for the periods 9 January 1999 through 10 February 2000, and 11 February 2000 through 10 February 2001, be , and hereby are, declared void and removed from his records.

		c.  The Unfavorable Information File (UIF), to include all documentation contained therein, be declared void and removed from his records.

		d.  He was not discharged from the Air Force on 31 December 2002, but on that date he was continued to serve on extended active duty and was ordered permanent change of station (PCS) to his home of selection for the convenience of the government.

		e.  His name was not removed from the list of officers selected by the Calendar Year 1999A Major Selection Board.

		f.  He was promoted to the grade of major with a date of rank and effective date of 1 November 1999.

		g.  Any nonselections for promotion to the grade of lieutenant colonel in-the-primary zone prior to receiving a minimum of two Officer Performance Reports with at least 250 days of supervision, in the grade of major, be, and hereby are, set aside.