RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-01325
		INDEX CODE:  110.00; 114.03
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

	a.  His AF IMT 707A, Field Grade Officer Performance Report (OPR) (MAJ thru COL), for the period 16 Apr 04 thru 15 Apr 05, be declared void and removed from his records.

	b.  The Letter of Reprimand (LOR) dated 14 Sep 05, be removed from his record.

	c.  His Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to Honorable.

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APPLICANT CONTENDS THAT:

His referral OPR was not based on its reporting period and feedback was not performed.  The LOR issued was unjust, unfair and unwarranted and the errors resulted in his administrative discharge.  The Discharge Review Board did not recognize or consider all evidence presented and did not provide or state legal and regulatory references for their decision.

In support of his request, the applicant submits copies of multiple attachments which include excerpts from his discharge case file, the contested OPR and character letters.

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

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STATEMENT OF FACTS:

Between Nov 03 and Mar 04, while deployed to Kuwait, the applicant directed a chaplain’s assistant to download nude pictures of himself from his camera to his government computer with the intention of emailing them using his government email account.

Between Jul 04 and Dec 04, the applicant engaged in an unprofessional sexual relationship with an airman who was a member of his congregation that had come to him for counseling.  The relationship resulted in her becoming pregnant.  The applicant took several actions to try and conceal the relationship from investigators.  He was ordered to have no further contact with the airman; however, he intentionally violated the no contact order.

On 27 Feb 05, he delivered a racially divisive sermon at the 0930 Gospel Service in the Chapel.

On 21 Oct 05, the Air Armament Center Commander (AAC/CC) notified him he was initiating discharge against him with his commander’s recommended actions.  A Board of Inquiry (BOI) found the applicant engaged in serious and recurring misconduct and recommend he be separated with an UOTHC service characterization.  The discharge case file was found legally sufficient and was forwarded to the Secretary of the Air Force for final disposition.  On 23 May 06, the discharge authority directed the applicant be discharged from the Air Force with an UOTHC discharge.  He served 17 years and 26 days on active duty.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate office of the Air Force at Exhibits C, D, E and F.

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AIR FORCE EVALUATION:

HQ AFPC/DPSIM recommends denial of the applicant’s request for removal of the LOR.  DPSIM states the applicant was issued a LOR for engaging in an unprofessional relationship with an enlisted female, disregarding his role as chaplain, making inappropriate sexual comments and engaging in abusive behavior towards coworkers and subordinate. He acknowledged receipt of the LOR and opted not to provide a response.

The complete DPSIM evaluation is at Exhibit C.

HQ AFPC/DPSIDEP recommends denial of the applicant’s request for removal of the referral OPR.  

DPSIDEP notes the applicant’s contention that a formal and/or informal feedback was not performed; however, he provided a copy of a feedback which clearly addressed several issues.  DPSIDEP states only members in the rating chain can confirm if a feedback was provided.  The information provided during feedback sessions and the assessment on evaluation reports may differ.  For example, if after a positive feedback session the ratee’s performance deters, this information must be recorded in the evaluation report even when it disagrees with the previous feedback.  Also, there may be occasions when feedback was not provided during a reporting period; however, lack of feedback is not sufficient justification to challenge the accuracy or justness of a report.  Evaluators must confirm counseling or feedback was not provided and it directly resulted in an unfair evaluation.  There are no statements from his evaluators; therefore, counseling cannot be substantiated.  

DPSIDEP states an OPR only covers the reporting period for which it is rendered and evaluates the performance reflected at that time.  Changes in supervisors and/or positions may produce a change in performance standards depending on how well the individual adapts.  

DPSIDEP notes the applicant’s contentions that the OPR contained documented administrative and factual errors.  DPSIDEP explains the start date for the contested report (16 Apr 04) began the day after the close out of the last report regardless of the member’s Date Arrived Station (DAS) (23 Jul 04).  The report closed out exactly one year from the last report and is, therefore, an annual report.

DPSIDEP states removal from duty does not necessarily mean a Change of Report Official (CRO) report should be accomplished.  The applicant’s rater remained his rater until the 15 Apr 05 close-out date.  DPSIDEP notes that although he may have held the Senior Protestant Chaplain position for the majority of the reporting period, he was removed from that position; therefore, the OPR duty title was appropriate and listing both duty titles is not authorized.

DPSIDEP notes the applicant’s contention that the unfilled Section IV, Rater’s Comments sends a negative message to the board.  DPSIDEP opines that comments in this block are limited to the space provided.  The evaluator must document one minimum of line of performance however there is no requirement to utilize the entire space provided.  Additionally, as long as the comments are appropriate and not prohibited, the evaluators are within the guideline of Air Force policy.  

DPSIDEP states the section of the report completed by the wing commander was completed as required and in accordance with Air Force Policy.  

The complete DPSIDEP evaluation is at Exhibit D.

DPSOS recommends denial of the applicant’s request for upgrade of his discharge to honorable.  

DPSOS states a BOI applies a standard based on the preponderance of evidence.  A preponderance of evidence produces the stronger impression, has the greater weight and is more convincing as to its truth when weighed against any evidence in opposition to it.  The BOI determined the evidence presented formed a basis for the applicant’s discharge and that he should not be retained.  He was represented by counsel before the BOI and the Air Force Discharge Review Board; however, the evidence submitted by the applicant and counsel did not convince either board that the applicant did not engage in serious and reoccurring misconduct which led to his discharge.

The complete DPSOS evaluation is at Exhibit E.

HQ AFPC/JA recommends denial.  JA opines the applicant has failed to prove any material error or injustice related to the referenced documents or his discharge.  He committed serious acts of misconduct and substandard performance.  He exercised his right to a BOI, was fully and zealously represented by military counsel as well as civilian counsel hired at his own expense and received full due process throughout the proceedings.  The BOI members found the preponderance of the government’s evidence to be credible and sufficient to support the findings of wrongdoing and a discharge under other than honorable conditions.  The administrative record supports that determination.  

The complete JA evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant submits a nine-page statement dated 22 Jun 10.  He reiterates his earlier contentions; however, states he will introduce new evidence in his favor.

The applicant’s complete submission, with attachments, 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the complete record of evidence, but we agree with the determinations and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion the applicant has not been the victim of an error or injustice.  We also took note of the applicant’s allegations regarding the proceedings and findings of the Discharge Review Board (DRB); however, based on our review of the DRB decisional rationale, we believe the applicant’s substantial rights were not violated and the DRB’s findings and subsequent recommendation are supported by the evidence of record.  We further noted the applicant’s assertions regarding his career-long, exceptional record of performance as well as the letters of support he provided.  Nevertheless, since we believe a preponderance of the evidence in this case supports the actions taken against him and that he engaged in the stated misconduct, it is our determination that it would be inappropriate to grant any of the relief requested.  In our view, the applicant has not presented persuasive arguments that he did not engage in improper conduct, rather his arguments appear to focus on the lack, in his view, of any evidence that clearly proves he is guilty of the offenses.  We also weighed his arguments that the action to administratively separate him was made due to lack of sufficient evidence to support an action such as a court martial.  Even if we accepted this as true, use of the administrative process was not improper since it was authorized by pertinent policy.  Additionally, we note that the discharge action was determined legally sufficient after several legal reviews.  We further took notice of the applicant’s argument that the actions in his case were inequitable when compared with actions taken in cases with misconduct similar to that he was discharged for.  We do not find the evidence provided in support of this argument supports that the applicant has been the victim of error or injustice.  Even acknowledging that the handling of the applicant’s case may have involved errors of procedure, we are still not persuaded he has been the victim of errors or an injustice that would warrant granting the relief he is seeking.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend that relief be granted.

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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 in Executive Session on 15 Jul 10 and 20 Jul 10, under the provisions of AFI 36-2603:

	Panel Chair
Member
	Member

The following documentary evidence was considered in AFBCMR BC-2008-01257:

    Exhibit A.  DD Form 149, dated 1 Apr 09, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPSIM, dated 4 May 09.
    Exhibit D.  Letter, HQ AFPC/DPSIDEP, dated 20 Oct 09.
    Exhibit E.  Letter, HQ AFPC/DPSOS, dated 12 Apr 10.
    Exhibit F.  Letter, HQ AFPC/JA, dated 18 May 10.
    Exhibit G.  Letter, SAF/MRBR, dated 28 May 10.
    Exhibit H.  Letter, Applicant, dated 22 Jun 10.

                                   
                                   Panel Chair