RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-02481 INDEX CODE: 111.02 XXXXXXXXXXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: His Article 15, nonjudicial punishment (NJP), received on 24 May 2005; the Officer Performance Report (OPR) rendered for the period 18 January 2004 through 17 March 2005; and all subsequent OPRs after that be removed from his records. In addition, he be reinstated on the lieutenant colonel promotion list. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He wrongfully received an Article 15 for sexual harassment of female subordinates and fraternization with an enlisted female member. The evidence underlying the allegations of sexual harassment and fraternization was “based on perception.” The commander who imposed the punishment prejudged his guilt of the offenses by doing a referral OPR prior to the NJP action and made comments of his NJP action in the OPR of one of his subordinate’s. The Commander Directed Investigation (CDI) report that was the basis for the NJP was deficient, was not coordinated with the Wing Military Equal Opportunity (MEO) office, and was not provided to himself or his counsel in a timely fashion. The Mission Support Group Commander’s decision to direct an investigation “may have been racially motivated” or made because his commander viewed him as a “threat.” The investigation and resulting NJP action “were handled in an inappropriately public manner.” His defense counsel was improperly informed by the acting Mission Support Squadron Commander that squadron witnesses contacted in the investigation declined to be interviewed by the defense counsel. The legal review, related to his case, was defective because the Pacific Air Force (PACAF) Staff Judge Advocate (SJA), at that time, was not an attorney licensed to practice law. His Article 15 also tainted all of his OPRs following the action. In support of his request, the applicant submits a personal statement and copies of military records concerning his referral OPR, NJP action, and promotion propriety; OPRs; Freedom of Information Act correspondence; electronic communications; memorandums for record; documents concerning the former PACAF SJA being a disbarred attorney; and numerous character references. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The Military Personnel Database (MilPDS) indicates the applicant has a Total Active Federal Military Service Date and a Total Active Federal Commissioned Service Date of 14 August 1991. He was promoted to the grade of major, effective and with a date of rank of 1 May 2002. The applicant was selected for promotion to lieutenant colonel by the Calendar Year 2004B (CY04B) Below-the- Promotion-Zone (BTZ) Lieutenant Colonel (Lt Col) Central Selection Board (CSB) which convened on 12 July 2004. On 24 January 2005, his commander initiated a CDI into allegations of inappropriate behavior by the applicant toward female subordinates. Based on the findings of the CDI, his commander referred the information to the Air Force Office of Special Investigations and removed the applicant from his position as the Mission Support Squadron Commander on 23 February 2005. His commander issued the applicant a referral OPR on 30 March 2005. On 21 April 2005, his commander offered the applicant NJP for ten specifications of maltreatment by sexual harassment of female subordinates, in violation of Article 134, Uniformed Code of Military Justice (UCMJ), and one specification of knowingly fraternizing with an enlisted member in violation of Article 134. After consulting with his defense counsel, the applicant, on 20 May 2005, accepted NJP proceedings and waived his right to demand a trial by court-martial. He presented matters to the commander in writing for consideration and requested a personal appearance before the commander. On 24 May 2005, after having considered the evidence and the matters presented, the commander found the applicant committed the offenses alleged, with the exception of three of the ten sexual harassment specifications, and imposed punishment consisting of a reprimand and forfeiture of $1,000 pay per month for two months. The applicant appealed the punishment on 9 June 2005, to the PACAF Vice Commander, who denied the appeal on 18 July 2005. A legal review of the NJP action was conducted on 12 August 2005 and determined to be legally sufficient. The NJP action was subsequently filed in an Unfavorable Information File (UIF). On 3 November 2005, prior to the effective date of his promotion to Lt Col, the PACAF Commander recommended the applicant’s name be removed from the promotion list. The applicant submitted a response to the recommendation on 18 November 2005 and personally appeared before the commander on 27 December 2005 requesting the commander set aside the NJP and allow the applicant’s promotion. The relief was denied, and, on 12 May 2006, the Secretary of the Air Force (SECAF) removed his name from the promotion list. The applicant was later considered and nonselected to the grade of Lt Col by the CY06C In-the-Promotion-Zone (IPZ) Lt Col CSB which convened on 28 November 2006. The following is a resume of his OPR ratings commencing with the report closing 15 May 1992: PERIOD ENDING OVERALL EVALUATION 15 May 92 (2nd Lt) MS 27 Jan 93 MS 27 Jan 94 (1st Lt) MS 20 Nov 94 MS 04 Aug 95 (Capt) MS 04 Aug 96 MS 01 Jun 97 MS 27 Jun 97 Training Report 30 Jun 98 Training Report 15 Dec 98 Training Report 15 Dec 99 MS 15 Dec 00 MS 26 Apr 01 MS 31 Mar 02 MS 17 Mar 03 (Major) MS 17 Jan 04 MS 17 Mar 05 (Referral) Contested Report 17 Mar 06 Contested Report 17 Mar 07 Contested Report ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s requests. JAJM states despite the applicant’s contentions that he did not commit the offenses, he has not offered any evidence that persuasively suggests he may have been punished for offenses he did not commit. All of the other contentions made by the applicant are equally without merit. Regarding the CDI report, he claims three prejudicial errors. First, he contends that the report was missing key interviews. If so, he had the opportunity during the NJP action to present his commander with the testimony of such witnesses or their written statements. Second, he contends the report supposedly should have been coordinated with the Military Equal Opportunity Office, but was not. Even if true, as a technical matter, it does not suggest the report’s findings were wrong or call into question the adequacy and integrity of the NJP action. Third, because the report was not disclosed to the applicant and his counsel until the start of the NJP action, applicant argues that they didn’t have sufficient time to examine and prepare a defense to the material in the report. He or his counsel could have asked for more time to investigate the allegation, prepare a response, or decide whether to accept the NJP action, but he provides no indication of such a request or that it was denied. JAJM states that purported procedural defects in the NJP action, as claimed by the applicant, are unfounded or unexplained. In addition, his contention that the investigation was racially motivated or intended to remove him “as a threat” is baseless. Finally, the contentions concerning a former judge advocate are more overstatement by the applicant. The SJA in question had little to no involvement in the applicant’s NJP action. The SJA did not conduct the legal review of the NJP action. It was done by judge advocates at the Wing level. The SJA may have advised the appellate authority as to action on the applicant’s appeal of the NJP, and was involved to some extent in the review and recommendation on the action redlining the applicant’s promotion. Nonetheless, there is nothing deficient about this legal review. The SJA and the applicant also exchanged a few short emails on what appear to be certain minor procedural matters relating to an Inspector General complaint the applicant filed on 6 December 2005 and the applicant’s request for a set aside of the NJP and his response to the promotion action. However, these emails were after the NJP action was final and have no bearing on whether there was any error or injustice in that action. It is JAJM’s opinion that absent a clear error or injustice, the applicant should not prevail. Procedural and substantive requirements having been met, the applicant’s request for equitable relief is without legal or factual justification. The JAJM evaluation is at Exhibit C. AFPC/DPSIDEP states they will only address the applicant’s request for removing the contested OPRs. DPSIDEP accepts the advisory opinion of AFLSA/JAJM, dated 1 October 2007, as the Air Force position on the respective issues addressed. Since it is JAJM’s position that the applicant’s Article 15 should remain in his record, DPSIDEP recommends that the OPR closing 17 March 2005, and any subsequent OPRs to that report, also remain as they are accurate as written and their removal is unwarranted. The DPSIDEP evaluation is at Exhibit D. AFPC/DPSOO assumes the applicant is requesting direct promotion to the grade of lieutenant colonel since there is no avenue for reinstatement of promotion once an officer’s name is removed from a promotion list; therefore, they will only address the direct promotion issue. After reviewing the applicant’s appeal and the AFLOA/JAJM’s and AFPC/DPSIDEP’S findings, DPSOO recommends denial of the applicant’s direct promotion to Lt Col. DPSOO states a direct promotion would be unfair to all other officers who were in similar situations and also did not get promoted. The DPSOO evaluation is at Exhibit E. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant responds that he was told by senior leadership that he would be promoted despite the NJP action. He was told to work hard and to prepare for life as a Lt Col. However, the PACAF SJA derailed his promotion. The PACAF SJA wrote the “legal sufficiency” to his removal from the Lt Col promotion list after it was publicly known his commanders agreed his promotion should occur. Hence, the PACAF SJA provided a legal determination in his NJP appeal; provided “legal sufficiency” to the MEO complaint he filed against PACAF; and single-handedly closed the PACAF IG complaint he brought forth to the PACAF/CC. This “disbarred attorney” had a major role in his case despite what the Air Force advisory opinion leads you to believe. SECAF was ill-advised based on the flagrant violation of his due process and misinformation exhibited within the very staffing of his case. His wing commander did not seek to remove him from the promotion list and in-turn, reassigned him to the PACAF staff with a deliberate message to stay on-target. He is staying on-target and exhausting the due process that was not afforded to him initially. The applicant’s rebuttal, with attachments, is at Exhibit F. ________________________________________________________________ _ 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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. ________________________________________________________________ _ 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. ________________________________________________________________ _ The following members of the Board considered this application in Executive Session on 27 March 2008, under the provisions of AFI 36-2603: The following documentary evidence for AFBCMR Docket Number BC- 2007-02481 was considered: Exhibit A. DD Form 149, dated 6 Aug 07, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 1 Oct 07. Exhibit D. Letter, AFPC/DPSIDEP, dated 20 Nov 07. Exhibit E. Letter, AFPC/DPSOO, dated 4 Dec 07. Exhibit F. Letter, SAF/MRBR, dated 14 Dec 07. Exhibit G. Applicant’s Rebuttal, dated 13 Jan 08, w/atchs.