RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-03620
		INDEX NUMBERS: 126.04, 128.14, 
					   131.00 & 111.01

	XXXXXXX	COUNSEL:  

	XXXXXXX	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.	The Article 15 imposed on 19 December 2002, be vacated and removed from his records.

2.	The Officer Performance Report (OPR) closing 25 February 2003, be removed from his records.

3.	His promotion to the grade of captain be retroactively reinstated, effective 26 February 2003, with all back pay and allowances.

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THE APPLICANT CONTENDS THAT:

The Commander Directed Investigation (CDI) was improperly conducted, very biased, and slanted.  His supervisors did not relay known information during the decision making process.  Furthermore, the punishment he received was inequitable compared to punishments received by others.  Other officers who committed the exact same offenses were merely given a Letter of Reprimand (LOR) and an Unfavorable Information File (UIF).  He did not disobey a lawful order, intimidate, or harass Ms.   , and she was still talking to him through January 2002.  As a result of the harsh punishment he received, he will be forced to leave the Air Force in 2004.  Furthermore, he will receive $1,898.00 less per month in retired pay if he is not allowed to retire in the grade of captain.  He has never had any prior disciplinary action taken against him.  The AFBCMR has been inclined to vacate Article 15 actions in similar situations where the facts demonstrate a substantial injustice.

In support of the appeal, applicant submits numerous character references, extracts from his military personnel records, and a copy of the Record of Proceedings pertaining to AFBCMR Docket Number 98-00094.

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

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STATEMENT OF FACTS:

The applicant is currently serving on extended active duty in the grade of first lieutenant.  A Commander Directed Investigation (CDI) was initiated on 20 June 2002, to investigate allegations that applicant had a sexual relationship with Ms   , and when she attempted to end the relationship, he continued to act inappropriately toward her.  The CDI concluded the allegations were substantiated and that due to the conscious efforts of the applicant to remove any possible evidence from his government computer account, Uniform Code of Military Justice (UCMJ) action under Article 134 should be considered.  The commander imposed nonjudicial punishment under Article 15 of the UCMJ on 19 December 2002, for attempting to impede a CDI into his behavior by erasing his email traffic from his government computer; violating a lawful order by sending harassing, intimidating, abusive or offensive material; and for wrongfully having sexual intercourse with Ms.   .  The punishment consisted of forfeiture of $1936.00 pay per month for two months, restriction to Montgomery and Greene Counties for 60 days, with the exception of required military duty, and a reprimand.

He was considered and selected for promotion to the grade of captain in-the-promotion zone (IPZ) by the CY02B Captain Central Selection Board that convened on 10 June 2002.  However, on 28 January 2003, the Commander, Aeronautical Systems Center, initiated action to remove his name from the promotion list.  The commander indicated his bases for the action were the applicant’s attempt to wrongfully impede a CDI, failure to obey a lawful order or regulation, and adultery.  On 23 June 2003, the Secretary of the Air Force approved the removal of the applicant’s name from the promotion list.  He was considered and not selected for promotion to the grade of captain above-the-promotion zone (APZ) by the CY03C Captain Central Selection Board.  He has a mandatory separation date of 31 July 2004.

Applicant’s OPR profile follows: 

           PERIOD ENDING          EVALUATION OF POTENTIAL 

			 8 Oct 99             Training Report (TR)
 			 9 Jul 99             		    TR
			25 Feb 00             Meets Standards (MS)
			25 Feb 01			  MS
		   #	25 Feb 02			  MS
		   *	25 Feb 03 (Referral)  MS on all standards except
				                     Leadership Skills, Professional
			                      Qualities & Judgment and 
			                      Decisions
			 1 Sep 03	      MS

# Top report reviewed by the CY02B Capt Board.

* Contested report and top report reviewed by the CY03C Capt Board.

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AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends denial of the applicant’s request that the entire Article 15 be vacated.  AFLSA/JAJM states, in part, that the AFBCMR may conclude that the single charge of attempted obstruction of justice should be set aside since there is no evidence the applicant erased or attempted to erase email traffic after he was notified of the CDI.  However, the remaining offenses are well supported by the evidence and the punishment imposed was justified and reasonable for those offenses.

The AFLSA/JAJM evaluation, with attachments, is at Exhibit C.

AFPC/DPPPE recommends the applicant’s request to void the contested OPR be denied; however, if the AFBCMR decides to set aside the single charge of attempted obstruction of justice, they recommend the bullet in the contested OPR be rewritten to read, “Member received Article 15 for adultery and inappropriate use of government computers.”  AFPC/DPPPE states, in part, that the applicant has provided no evidence to support his contention that the OPR is inaccurate.  Since AFLSA/JAJM has substantiated the Article 15 is valid in part, the OPR can be considered an accurate assessment of the applicant’s performance.

The AFPC/DPPPE evaluation is at Exhibit D.

AFPC/DPPP recommends the applicant be denied promotion consideration by a Special Selection Board (SSB) for the CY03C board since the overall OPR rating will not change if the AFBCMR decides to remove the single charge of attempted obstruction of justice from the Article 15 and contested OPR.

The AFPC/DPPP evaluation, with attachments, is at Exhibit E.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

While the Air Force is commended for realizing the charge of attempting to obstruct an investigation should be removed, there is insufficient evidence to support the two remaining charges.  Although it is alleged Ms.   told the applicant she no longer wished to have contact with him, this is an issue of contention.  Furthermore, the emails she presented were altered.  Regardless, after the January 2002 timeframe, the emails diminished dramatically.  In addition, the applicant never had any sexual intercourse with Ms.   and adultery does not encompass anything other than sexual intercourse.  A close relationship does not rise to the level of adultery.  As a result of the action taken against him, the applicant’s promotion to captain was redlined, he will be relieved from duty on 31 July 2004, and will not be able to retire as an officer.

Counsel’s 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant removing the single charge of attempting to wrongfully impede an investigation from his records.  Since there is no evidence the applicant erased or attempted to erase email traffic after he was notified of the CDI, the charge is unsupported.  In view of this, the charge of attempting to wrongfully impede the investigation should be removed from the Article 15 and the reference to his interference with a government investigation should be removed from the contested OPR.  Although we believe the contested report should be amended to delete any reference to his interferring with a government investigation, the evidence provided did not persuade us that the overall ratings on the report should be changed or that the report should be removed from his records.  In view of this, we find no basis upon which to recommend his consideration for promotion to the grade of captain by a Special Selection Board.  Therefore, we recommend the applicant’s records be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice concerning the remainder of his requests.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that further relief is appropriate.  The remaining offenses cited in the Article 15 are supported by the evidence of record and evidence has not been presented which would lead us to believe the nonjudicial punishment and the removal of his name from the promotion list were improper.  Therefore, we find no basis upon which to favorably consider removing the entire Article 15 from his records and retroactively reinstating his promotion to the grade of captain.

5.  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 RECOMMENDS THAT:

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

	a.	Any and all references to his violation of the Uniform Code of Military Justice (UCMJ), Article 80, be declared void and removed from the nonjudicial punishment under Article 15, UCMJ, imposed on 19 December 2002.

	b.	The Company Grade Officer Performance Report, AF Form 707B, rendered for the period 26 February 2002 through 25 February 2003, be amended in Section VI, Rater Overall Assessment, second bullet, to read: “Member received Article 15 for adultery and inappropriate use of government computers.”

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The following members of the Board considered Docket Number BC-2003-03620 in Executive Session on 22 July 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 16 Mar 04, w/atchs.
    Exhibit D.  Letter, AFPC/DPPPE, dated 26 May 04, w/atchs.
    Exhibit E.  Letter, AFPC/DPPP, dated 1 Jun 04, w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 4 Jun 04.
    Exhibit G.  Letter, Counsel, dated 24 Jun 04, w/atchs.

                                   
                                   
AFBCMR BC-2003-03620

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 XXXXXXX, XXXXXXX, be corrected to show that:

		a.	Any and all references to his violation of the Uniform Code of Military Justice (UCMJ), Article 80, be, and hereby are, declared void and removed from the nonjudicial punishment under Article 15, UCMJ, imposed on 19 December 2002.

		b.	The Company Grade Officer Performance Report, AF Form 707B, rendered for the period 26 February 2002 through 25 February 2003, be amended in Section VI, Rater Overall Assessment, second bullet, to read: “Member received Article 15 for adultery and inappropriate use of government computers.”