RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

    IN THE MATTER OF:		DOCKET NUMBER:  BC-2002-02831
						INDEX CODE:  111.00, 131.00

    						COUNSEL:  

    						HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  The Officer Performance Report (OPR) rendered for the period 3 March 1998 through 2 March 1999, be declared void and removed from his record.

2.  All unfavorable records in either his Official Military Performance Fiche (OMPF), Officer Selection Record (OSR), or any other official record maintained by the Department of the Air Force be removed from his records; and he be afforded such other and/or further relief as may be deemed necessary and/or appropriate in order to provide him full and complete relief including, but not limited to, payment of any money due as a result of the correction of his military records.  

3.  He be considered for promotion to the grade of lieutenant colonel by Special Selection Board (SSB) for the Calendar Year 2002B (CY02B) Central Lieutenant Colonel Selection Board, which convened on 12 November 2002.

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APPLICANT CONTENDS THAT:

He was denied the opportunity to adequately respond to a letter of reprimand (LOR) because he did not receive an unredacted copy of the commander directed investigation.  The LOR and OPR are erroneous and should be removed.

In support of the appeal, applicant submits a brief from his Counsel, a personal statement in reference to the referral OPR, an e-mail and five letters in reference to his FOIA request, and a letter to him with copy of the FOIA records he requested.  Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is a Regular Air Force officer serving in the grade of major, having been promoted to that grade, effective and with a date of rank of 1 October 1998.  His Total Active Federal Commissioned Service Date is 5 November 1987 and his Total Active Federal Military Service Date is 27 December 1985.  He currently has an established date of separation of 31 December 2005.

The applicant was considered and not selected for promotion to the grade of lieutenant colonel by the CY02B (12 November 2002) Lieutenant Colonel Central Selection Board.

OPR profile since 1991 follows:

           PERIOD ENDING        EVALUATION OF POTENTIAL

			       15 May 91		Meets Standards (MS)
				25 Apr 92			MS
				25 Apr 93			MS
				30 Apr 93		Education/Training Report (TR)
				29 Jun 94			TR
				28 Feb 95			MS
				29 Feb 96			MS
				28 Feb 97			MS
				 2 Mar 98			MS
				*2 Mar 99		Does Not Meet Standards
							 (referral)
				 2 Mar 00			MS
				 2 Mar 01			MS
				 2 Mar 02			MS
				 2 Mar 03			MS

* Contested report

Pursuant to this appeal, an attempt was made to obtain a copy of any unfavorable information in the applicant’s file.  Applicant’s MPF indicated that if a UIF existed, the disposition date had expired and the file destroyed.

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AIR FORCE EVALUATION:

AFPC/DPSFM states that the applicant does not deny committing adultery.  He only denied that the adulterous relationship lasted at least three weeks.  In his own words:  “The woman and I were intimate on only one occasion rather than on a continuous basis for three weeks.”  In his memo to HQ AETC/LGC, dated 4 March 1999, Subject:  Referral Officer Performance Report, the applicant states, “I feel an LOR may have been too harsh an action."  That policy, in brief, is that adultery and fraternization should be dealt with using the lowest level form of appropriate discipline.”  If the applicant did not commit adultery, they question why he discusses the appropriate punishment instead of denying the charges.  In fact, it is within the commander’s discretion to determine what is the appropriate form of punishment.

As for the applicant contending that he was denied the opportunity to adequately respond to an LOR because he was not provided a complete, unredacted copy of the commander directed investigation is untrue.  It is noted that the applicant did not request an unredacted copy of the investigation until after his performance report was referred to him on 4 March 1999, not when he received the LOR on 6 November 1998.  The first request for a copy of the unredacted copy of the investigation is dated 17 September 1999, six months after receiving the LOR.

It is also noted that the use of the LOR by commanders and supervisors is an exercise of supervisory authority and responsibility.  The LOR is used to reprove, correct and instruct subordinates who depart from acceptable norms of conduct or behavior, on or off duty, and helps maintain established Air Force standards of conduct or behavior.  A reprimand is more severe than a counseling or admonition and indicates a stronger degree of official censure.  An individual has three duty days upon receipt to submit rebuttal documents for consideration by the initiator.  LORs are mandatory for file in the UIF for officer personnel.  Therefore, they believe the denial is appropriate.  In reference to the applicant contending he was not allowed to properly rebut the LOR; there is no requirement for a commander to provide a subordinate a complete, unredacted copy of an investigation.

A complete copy of the evaluation is attached at Exhibit C.

AFPC/DPPPE states that the applicant’s rating chain had ample evidence to issue an LOR for his involvement in an adulterous affair.  As such, there are no errors or injustices cited in his 2 March 1999 referral OPR.  The reference to the LOR given during the reporting period of the report was appropriate and the applicant was given the opportunity to respond to the referral comment.  In DPPPE’s opinion, the applicant’s contentions have been poorly supported and are inaccurate.  Therefore, they recommend denial of the applicant’s request.

A complete copy of their evaluation is attached at Exhibit D.

AFPC/DPPPO states that they have nothing further to add.  Since the advisories from DPPPE and DPSFM recommend denial, SSB consideration is not warranted.

A complete copy of their evaluation is attached at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 1 July 2003, the applicant requested his case be administratively closed.  By letter dated 13 August 2003, counsel’s rebuttal reopened the case.

Counsel for the applicant states that the three advisory opinions all say essentially the same thing.

Counsel indicated that all three advisory opinions blindly state commanders have a lot of discretion in these matters, and they can impose an LOR.  None of this is disputed.  However, if a commander’s ability to impose an LOR were unfettered, this Board would not need to exist.  Congress created this Board for exactly this purpose.  To ensure that Commanders did not have absolute discretion, and to ensure that there was some civilian oversight of the military.  For the advisory opinions to argue otherwise is disingenuous.

The Board should know that as soon as the applicant was told to cease contact with the woman in question, he did.  He has done everything he could to make this situation better, and his efforts have consistently backfired.  This investigation was closed until the woman’s husband complained to the applicant’s chain of command.  This was months after the no contact order, and long after all contact had ceased.  It is simply wrong to continue to punish him after this period of time.

As previously pointed out, the allegations in this case should never have arisen to the level of an LOR.  This was a brief, inappropriate relationship.  The parties have had no contact since then.  While the advisory opinions all state that an LOR is an appropriate corrective tool, the reality of the military is that if the LOR is not removed, the applicant will not make 0-5, and his career will be over.  Furthermore, he will always have this black mark on his record for something he did not do.  This is akin to killing an ant with a sledgehammer.

Counsel asserts that there other issues that warrant discussion.  The advisory opinion from DPPPO is signed by the same individual who issued the LOR in this case.  It should be no surprise that the officer now contends that the investigation was improper and the LOR should remain in the record.  This officer is anything but impartial.  The investigating officer in this case was the applicant’s former supervisor.  Again, one must question how this officer could possibly be impartial.

For these reasons, and those previously stated, counsel believes the petition should be granted.

Counsel's complete response is attached 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 error or injustice.  The applicant alleges his rights were violated with respect to the issuance of the LOR and, as a result, that the contested OPR is erroneous as well.  The evidence pertaining to the events is limited to the documents provided by the applicant.  We note that this situation is attributable to the fact that the applicant delayed in filing an appeal concerning these matters and it appears the investigative file, LOR and UIF were destroyed on time in accordance with the governing regulations.  In cases of this nature, in the absence of evidence to the contrary, the actions of Air Force officials are presumed to be proper and in accordance with the governing regulations.  Furthermore, we are not inclined to disturb the discretionary judgments of superior officers, who are closer to events, without a strong showing of abuse of that authority.  In the instant case, we are not persuaded that either condition has been met.  The available evidence indicates that the applicant received an LOR for adultery.  The applicant alleges that the charge is erroneous, that he was “intimate” on one occasion, and that he was denied access to an unredacted copy of the investigative report in order to properly defend himself.  However, none of these statements and allegations is supported by the available record.  Therefore, we are unable to determine affirmatively whether his asserted rights were violated.  The applicant indicates that the investigating officer was a former supervisor and his impartiality was suspect.  Again, without some sort of corroborative evidence, we are not prepared to find this officer was unable to fairly carry out his appointed duties.  Finally, while it does appear that the signer of the DPPPO advisory also issued the LOR to the applicant, in view of his prior involvement in the case, it would seem that prudence should have dictated he recuse himself in this matter.  Nevertheless, we do not find the case before us is fatally flawed as a result of this circumstance because, on the basis of the evidence provided, our decision would be the same.  Accordingly, in view of the above and in the absence of corroborative documentary evidence indicating that the applicant’s substantial rights were violated, that his superiors abused their discretionary authority or that the LOR and contested OPR were technically flawed, we have no basis on which to favorably consider the applicant’s request.

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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, BC-2002-02831, in Executive Session on 16 October 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 14 Aug 02, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPSFM, dated 17 Mar 03.
	Exhibit D.	Letter, AFPC/DPPPE, dated 6 May 03.
	Exhibit E.	Letter, AFPC/DPPPO, dated 3 Jun 03.
	Exhibit F.	Letter, SAF/MRBR, dated 9 Jun 03.
	Exhibit G.	Applicant’s Response, dated 13 Aug 03.