ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2002-02770
								INDEX CODE 111.01  111.05
	 							COUNSEL:  None

								HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

In the applicant’s appeal for reconsideration, he requests that the referral Officer Performance Report (OPR) for the period 23 Nov 99 through 15 Jun 00 be voided.
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STATEMENT OF FACTS:

The applicant is currently serving on extended active duty in the grade of major and is assigned at Langley AFB, VA. During the period in question, he was assigned to McClellan AFB, CA. He was selected for promotion to lieutenant colonel (LTC) by the Calendar Year 1999B (CY99B) board, to be effective 1 Jul 00. However, due to allegations of improper conduct and unprofessional relationships, the applicant came under command scrutiny in an internal inquiry and subsequently received a Letter of Reprimand (LOR) on 11 Jan 00. He then became the subject of an Air Force Office of Special Investigations (AFOSI) investigation for alleged fraternization and other misconduct. His promotion was delayed pending the investigation and he was removed from command. The contested OPR was referred to him on 22 Jun 00. An Article 32 investigation was also conducted sometime in Aug-Sep 00. [Note: The Article 32 Report of Investigation (ROI) apparently was lost or destroyed when McClellan AFB was closed. As a result, the investigating officer’s (IO) findings and recommendations were unknown when the Board initially considered this case.] On 24 Oct 00, the applicant was served an Article 15 for various charges of unprofessional/improper conduct. As a result, the Secretary of the Air Force (SAF) removed the applicant’s name from the CY99B LTC selectee list on 11 Jun 01. The applicant was considered but not selected by the CY01B and CY02B LTC boards. 

The applicant submitted an appeal to the AFBCMR; however, his case was denied by the Board on 7 Jan 03.  For an accounting of the facts and circumstances surrounding the applicant’s original appeal and the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit F.

In a letter dated 17 Mar 03, the applicant declared his astonishment that, as indicated in the Record of Proceedings’ (ROP) Statement of Facts, the Article 32 ROI apparently was no longer available. He discussed his various issues with the investigations, the OPR, and the ROP. He stated the OPR is unjust and untrue because he never made false official statements, never failed to enforce underage drinking, and never received feedback consistent with Air Force instructions. He contended the OPR was rendered before an on-going investigation was completed. Further, as of its referral date, he was not charged with any offense, not provided any investigative report or evidence, and not given feedback or a forum in which to defend himself. Among the documents submitted in his reconsideration request were what appeared to be portions of the Article 32 ROI. Also included was a 4 Oct 00 letter from the 77th Air Base Wing (77 ABW) commander notifying the applicant that the charges and specifications preferred against him on 6 Jul 00 and the additional charges preferred on 20 Sep 00 were dismissed. 

A complete copy of the applicant’s submission, with attachments, is at Exhibit G. 

Since the Article 32 ROI was not obtainable when the applicant’s appeal was first reviewed and based on what appeared to be excerpts of the ROI in his latest submission, on 28 Mar 03 the AFBCMR Staff requested he provide a complete copy of the Article 32 ROI for the Board to examine when his case was reviewed for possible reconsideration. The applicant’s case was held in abeyance for 30 days in order for him to respond.

On 24 Apr 03, the applicant advised he did not have a complete copy of the Article 32 ROI, despite his unsuccessful requests for it through the Freedom of Information Act (FOIA).  He indicated he has seen the entire report but only had a partial copy to study while preparing for his legal response, post-Article 32 proceedings.  He provided a partial copy of the ROI, which he asserted is all he has. He amplified what he believes is a key point of the Article 32 proceedings. He contended the investigating officer’s (IO) recommendations were based on the preponderance (50.1%) of evidence. All but one of the witness testimonies came from government witnesses during the proceedings. As he did not make any statements to rebut or refute those government witnesses, the evidence provided satisfied the preponderance threshold. Also provided is a 4 Oct 00 letter from the wing commander dismissing the charges that had been preferred to the applicant and that the Article 32 ROI investigating officer (IO) had recommended for trial by general court-martial. 

A complete copy of the applicant’s submission, with attachments, is at Exhibit I. 

The following information was extracted from the documents provided by the applicant at Exhibit I:

The incomplete Article 32 ROI is dated 14 Sep 00 and apparently pertains to charges preferred on 6 Jul 00. Essentially, the investigating officer (IO) appears to have believed the applicant was guilty of fraternization (intercourse) with one female staff sergeant based on her admission and credibility, but he was not guilty of fraternization (intercourse and improper behavior) with an airman first class (A1C) based on her and another witness’s lack of credibility. The IO also concluded the applicant was guilty of fraternization (supplying/drinking alcohol and socializing at the dormitories and other non-official gatherings) with enlisted members, some of whom were under the legal drinking age.  The IO also concluded that the applicant pulled a female senior airman’s shirt over her head at a party without her permission, exhibited conduct unbecoming and officer, obstructed justice based on conversations with two A1Cs concerning the internal investigation, and made a false official statement during the course of an internal investigation. The IO recommended trial by general court-martial. Based on the 77 ABW commander’s 4 Oct 00 letter, the charges were dismissed and, on 24 Oct 00, the applicant received the Article 15.

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THE BOARD CONCLUDES THAT:

After a thorough review of the evidence of record and applicant’s submission, we remain unconvinced that he was the victim of either an error or an injustice.  While the entire Article 32 ROI remains unavailable, we conclude the contested OPR and the Article 15 were appropriate and sustainable based upon the evidence supplied by the existing record and the applicant himself, as well as the presumption of regularity in the conduct of governmental affairs. The applicant still has not established to our satisfaction that the basis of the rating chain’s judgment was unfounded or indefensible. Indeed, based on similar cases before this Board, we believe the applicant should count himself fortunate in being retained on active duty. As the applicant has failed to sustain his burden of having suffered either an error or an injustice, we find no compelling basis to overturn our earlier determination that this case should be denied.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 12 June 2003, under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2002-02770 was considered:

   Exhibit F.  Record of Proceedings, dated 23 Jan 03, w/atchs.
   Exhibit G.  Letter, Applicant, dated 17 Mar 03, w/atchs.
   Exhibit H.  Letter, AFBCMR, dated 28 Mar 03.
   Exhibit I.  Letter, Applicant, dated 24 Apr 03, w/atchs.