RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03453
		INDEX CODE:  111.00
		COUNSEL:  XXXXXXXXXX
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  The Officer Performance Report (OPR) rendered for the period 30 January 2000 through 15 February 2001, be removed from his records.

Or in the alternative

2.  The OPR be amended by deleting line 1 and line 9 in Section VI, Rater Overall Assessment and line 1 in Section VII, Additional Rater Overall Assessment.

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APPLICANT CONTENDS THAT:

On 10 November 2000, the applicant and his spouse were married.  On 13 November 2000, they both informed their supervisors of their marriage.  On 8 December 2000 an investigation was conducted regarding allegations that he fraternized with his wife prior to their marriage, engaged in an unprofessional relationship with an airman, sent inappropriate electronic mail to the spouse of an enlisted member, and attempted to develop an inappropriate relationship with the enlisted member's spouse.  After conducting interviews the investigation concluded all allegations were substantiated.  On 20 March 2001, he received the referral OPR.  On 10 May 2001, his spouse was honorably discharged.

In order for the Air Force to have found these allegations substantiated, it must have had reliable information supported by substantial evidence, then those findings themselves are in error and unjust for the purposes of an OPR.  

He denies that he fraternized or engaged in an unprofessional relationship with either his spouse or the spouse of an enlisted member.  He did not, prior to his marriage, date or engage in a sexual relationship with his spouse, nor did he try to develop an inappropriate relationship with the enlisted member's spouse or send inappropriate emails.

The referral OPR was based on the erroneous findings of a Commander Directed Investigation (CDI).  The findings revealed no substantial evidence, no eyewitnesses, or proof of any unprofessional conduct.  It does however, show blind unreasoning, prosecutorial bias and very clearly showed that he did not conduct himself unprofessionally during the contested time frame.

In support of his request, the applicant provided a personal statement, documentation extracted from his military personnel records, and a copy of the CDI.

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

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STATEMENT OF FACTS:

The applicant’s military personnel records were not available.  Data extracted from documents provided by the applicant reflects the following:

The applicant is currently serving on extended duty in the grade of lieutenant colonel.

On 8 December 2000, the Commander of the 39th Medical Operations Squadron, appointed an officer to conduct an investigation into allegations that the applicant fraternized with his now spouse before they married on 10 November 2000, engaged in an unprofessional relationship as defined in AFI 36-2909, paragraph 2.2 while both were assigned to the 39th Medical Group at Incirlik Air Base before they were married, sent inappropriate emails to a civilian female spouse of an enlisted member, and attempted to develop an inappropriate relationship with the same civilian female spouse of an enlisted member.  The findings of the report reflect the Investigating Officer (IO) substantiated all of the allegations.  In his report he noted while there were no witnesses that observed public displays of dating, witnesses did verify that more likely than not, the applicant and his spouse were involved in a relationship.  In addition, the enlisted member’s spouse verified that the applicant had sent her inappropriate emails.  Finally, the applicant’s spouse provided testimony that later proved to be “false official statements” in violation of the UCMJ, Article 107 and “false swearing” in violation of Article 134.

The applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports.  However, his appeal was forwarded to the ERAB for review, and they recommend denial.  The ERAB was not convinced that the OPR is in error because the contested information in the report is accurate and appropriate.

OPR profile since 2001 follows: 

           PERIOD ENDING            EVALUATION OF POTENTIAL 

		      *15 Feb 01	Meets Standards (MS) in all
					but Leadership Skills & 
					Professional Qualities
				16 Jul 02				(MS)
				16 Jul 03				(MS)
				28 May 04				(MS)
				28 May 05				(MS)
				28 May 06				(MS)
				28 May 07				(MS)

*Contested Report

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AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denial.  DPSIDEP states the purpose of the appeals process is to correct errors or injustices and DPSIDEP does not find either in this case.  For the applicant to prevail, he must provide evidence that the reprimand and UIF were “set aside” (should have never existed); declared void and expunged from his records; and that all his rights, privileges and property for which he may have been deprived ordered restored.  Additionally, he would have to provide evidence that the fraternization, professional relationship, the inappropriate emails, and the attempt to develop an inappropriate relationship were unsubstantiated.  Unfortunately, the behavior was substantiated therefore, the report remains accurate and there is no injustice.

The complete DPSIDEP evaluation is at Exhibit B.

AFPC/JA recommends denial.  JA states this application is untimely and the applicant has failed to prove an error or injustice warranting relief.  The applicant’s counsel centers his argument for the removal of the contested referral OPR on what he claims is the lack of reliable information supported by “substantial evidence.”  To support this theory, applicant’s counsel attacks the statements of several witnesses and then hinges his arguments on his assertion that the witnesses’ statements provided only unverified, uncorroborated allegations.  As JA has noted to this Board previously, argument – no matter how detailed – does not constitute evidence.  

Indeed, unlike a military justice action, the evidence of guilt to support an administrative action need not be based on the “beyond a reasonable doubt” burden of proof required for criminal prosecutions.  Rather, as an administrative action, the standard of proof for a reprimand is more akin to a civil action wherein facts are determined by substantial evidence, or at most, by a preponderance of the evidence; i.e., that it is more likely than not that the fact occurred as alleged.  JA has thoroughly reviewed the CDI at issue, and finds no legal deficiency to support applicant’s argument that there is insufficient evidence to substantiate the allegations against him.  Just the opposite is true.

Notably, the lack of any alleged corroboration to support the allegation that applicant and his spouse dated before they were married is due to her denial of the allegations that were later determined, at least administratively, to be true.  Significantly, now his spouse has submitted a 15 August 2007 sworn affidavit in support of her husband’s application that directly contradicts her 15 December 2000 witness testimony provided to the IO, namely, that she did not meet applicant until on or about 10 September 2000.  Thus, applicant’s own evidence fails to negate the legal sufficiency of the CDI.

Nonetheless, even if the Board were to disregard the fraternization/unprofessional relationship allegations, the allegations regarding applicant’s inappropriate emails to the civilian spouse of an enlisted member and attempt to develop an inappropriate relationship with her are largely uncontested by applicant.  To be sure, these allegations “refer to behavior incompatible with minimum standards of personal conduct, character, or integrity..."  Accordingly, JA concurs with the AFPC/DPSIDEP advisory.

The complete JA evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and states it is not factual.  If this case was accurate and truthful, he would not have to submit an application to correct an injustice.

He did not attempt or encourage a relationship with the wife of an enlisted member.  She lied in her testimony.  He had no knowledge of any complaint against him until he read it in a copy of the CDI provided to him months after the CDI was completed.  He is requesting his testimony be given the same weight as the wife of the enlisted member.

His wife never gave a false official statement.  On several occasions, his wife was asked if she had an unprofessional relationship with him.  On every occasion she undeniably replied "no."  In her sworn testimony to the AFBCMR, she restated that she did not have an unprofessional relationship.  The CDI concluded that it was a fact that his wife provided testimony that later proved to be false and suspected of a criminal offense.

He did not have an unprofessional relationship with his wife before they were legally married on 10 November 2000.  If he had not volunteered the fact that he was married to his supervisor, the probability of any reprimand would have been unlikely.  He did what he knew was proper and was reprimanded for an unprofessional relationship that did not exist.  The conclusion of the CDI regarding his character as an officer in the Air Force was the crux of their decision.  

Applicant’s complete response is at Exhibit E.

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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.  We took careful notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility, in particular that of the Office of the Judge Advocate General, and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Persuasive evidence has not been provided which would lead us to believe that the administrative actions taken by his commander were beyond his scope of authority or that he abused his discretionary authority in taking those actions.  We do not find his assertions, in and by themselves, sufficiently persuasive in this matter.  We are not persuaded by the evidence provided in support of his appeal, that the contested report is not a true and accurate assessment of the applicant's behavior during the specified time period or that the comments contained in the report were in error or contrary to the provisions of the governing instruction.  Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.  

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of an error or an injustice; the application was denied without a personal appearance; and 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-2007-03453 in Executive Session on 17 June 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 September 2007, w/atchs.
   Exhibit B.  Letter, AFPC/DPSIDEP, dated 14 December 2007.
   Exhibit C.  Letter, AFPC/JA, dated 31 December 2007.
   Exhibit D.  Letter, SAF/MRBR, dated 11 January 2008.
   Exhibit E.  Letter, Applicant, dated 16 January 2008, w/atch.