RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01104
		INDEX CODES:  111.02, 131.09

		COUNSEL:  XXXXX

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His line number for promotion to the grade of senior master sergeant be reinstated; and, that he be promoted to the grade of senior master sergeant as of such a date warranted by his line number.

His Enlisted Performance Report (EPR) rendered for the period 1 Feb 01 through 31 Mar 02 be declared void and removed from his records.

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APPLICANT CONTENDS THAT:

The contested referral EPR was the result of a single incident which allegedly occurred on 25 Jan 02, six days prior to the closeout date of the report.  Because of the incident, command sought and obtained approval to extend the closeout date.

There was no finding that he was guilty of the alleged assault (grabbing another airman's breast).

There has never been an adjudication of any kind in any forum of his guilt for assaulting anyone.  He was not offered an Article 15, nor were court-martial charges preferred.

The alleged victim had no interest in pursuing the matter until a Commander-Directed Investigation (CDI) required her to make a statement.

The individual who allegedly witnessed the incident, and who initiated the complaint, was biased toward` him because as First Sergeant, he had participated in ordering the individual's son off-base due to misconduct on the son's part.

In support of his appeal, the applicant provided a counsel's brief, copies of his selection record, a CDI, supportive statements, and other documents associated with the matter under review.

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

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently serving on active duty in the grade of master sergeant (MSgt), having been promoted to that grade on 1 Jun 98.  His Total Active Federal Military Service Date (TAFMSD) is 12 Mar 84.

Applicant's EPR profile since 1992 follows: 

     PERIOD ENDING                            EVALUATION 

	29 Mar 92	5
	29 Mar 93	5
	29 Mar 94	5
	29 Mar 95	5
	29 Mar 95	5
	29 Mar 96	5
	31 Jan 97	5
	31 Jan 98	5
	31 Jan 99	5
	31 Jan 00	5
	31 Jan 01	5
  *	31 Mar 02	4 (referral)
	 1 Jan 03	5

* Contested report.

A CDI, dated 6 Feb 02, indicates that an investigation was conducted into allegations that the applicant indecently assaulted another airman by touching her breast.  The investigation officer determined that on the night of 25 Jan 02, the applicant drank more than he admitted; that he started drinking about 1630 hours that afternoon; and, that he drank until the ceremony ended.  He determined that it was more likely than not that the applicant was intoxicated, and that it was more likely than not that his recollection of the events of 25 Jan 02 was impaired.  He further determined that the allegation the applicant touched another airman in an inappropriate manner should be substantiated.

On 14 Feb 02, the applicant received a Letter of Reprimand (LOR) for, on 25 Jan 02, while in a temporary duty status at the Order of the Sword ceremony honoring the Commander of the Air Force Space Command, becoming drunk and disorderly and indecently assaulting an airman by grabbing her breast.  The commander also proposed that the applicant be withdrawn from his position as First Sergeant for unacceptable conduct.

By letter, dated 25 Apr 02, the applicant's commander requested that a 59-day extension of the closeout date of the EPR closing 31 Jan 02.  He indicated that at the time his EPR would have closed out, the applicant was under investigation for an alleged assault incident that occurred on 25 Jan 02.  A thorough investigation substantiated the allegation against the applicant, who subsequently received an LOR on 14 Feb 02, and was immediately removed from the position of First Sergeant.  On 1 May 02, the Air Force Personnel Center (AFPC) approved the request for an extension of the closeout of the report, thereby establishing a new closeout of 31 Mar 02.

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AIR FORCE EVALUATION:

AFPC/DPPPE recommended denial indicating that the applicant failed to substantiate his allegation that the referral EPR was unduly influenced by an isolated incident.  The applicant's attempt at disproving the allegation that he engaged in an indecent assault has also been in vain.  It is Air Force policy that an evaluation report is accurate as written when it becomes a matter of record.  In AFPC/DPPPE's view, there were no errors or injustices cited in the referral EPR.

A complete copy of the AFPC/DPPPE evaluation is at Exhibit C.

AFPC/DPPPWB deferred to AFPC/DPPPE's recommendation.  They indicated that a review of the applicant's records reveals that the referral report was not updated in the Military Personnel Data System (MilPDS) until after selects were run on 11 Mar 03.  Therefore, he was erroneously considered and selected for promotion to the grade of senior master sergeant during cycle 02E8.  He received a promotion sequence number (PSN) of 1150.00, which would have been incremented on 1 Jan 03.  However, receipt of the referral report automatically canceled his promotion for cycle 02E8 in accordance with AFI 36-2502, Table 1.1, Rule 22.  Should the Board grant the applicant's request to void the referral report, it could direct the applicant's promotion to the grade of senior master sergeant be reinstated; or, direct that the applicant be provided supplemental promotion consideration, since he should never have been initially considered or selected for promotion during cycle 02E8.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations was forwarded to applicant on 3 Jul 03 for review and response (Exhibit E).  On 15 Aug 03, counsel requested that the applicant's appeal be temporarily withdrawn (Exhibit F).

By letter, dated 29 Sep 03, counsel provided a detailed response to the advisory opinions from the applicant who indicated that he hopes that the Board will see the unfair prolonged actions and several contradictions that occurred in his case, as well as the severe stress and punishment that he and his family have endured.

Counsel's response, with the attached response from the applicant, is at Exhibit H.

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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's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions sufficiently persuasive to convince us that any corrective action is warranted.  The evidence of record indicates that a CDI was conducted into allegations that the applicant indecently assaulted another airman by touching her breast.  The investigation officer determined that the applicant drank more than he admitted, that it was more likely than not that he was intoxicated and that his recollection of events was impaired, and, that the allegation the applicant touched another airman in an inappropriate manner should be substantiated.  As a result, the applicant was given an LOR for being drunk and disorderly and indecently assaulting an airman by grabbing her breast.  He was also removed from his duties as First Sergeant for demonstrating poor judgment and unacceptable conduct.  He subsequently received a referral EPR which canceled his selection for promotion to the grade of senior master sergeant.  After a thorough review of all the facts and circumstances of this case, we agree with the commander’s assessment that as a First Sergeant and leader, the applicant had the responsibility to set the standard of behavior, that he failed in that duty, and, that although the alleged incident may have been out of character for him, his conduct was totally unacceptable.  Even the applicant admitted that he was supposed to lead by example and that expectations of him as a First Sergeant were very high.  No evidence has been presented which has shown to our satisfaction that the information used as a basis for the LOR was erroneous, there was an abuse of discretionary authority, or that the contested report was technically flawed or an inaccurate depiction of his performance at the time it was rendered.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we conclude that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, the we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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-2003-01104 in Executive Session on 21 Oct 03 and 4 Nov 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPE, dated 3 Jun 03.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 16 Jun 03.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.
    Exhibit F.  Facsimile, counsel, dated 15 Aug 03.
    Exhibit G.  Letter, AFBCMR, dated 21 Aug 03.
    Exhibit H.  Letter, counsel, dated 29 Sep 03, w/atchs.

                                   
                                   Panel Chair