RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-02013
		INDEX CODE:  111.01
		COUNSEL:  
		HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Her Letter of Reprimand (LOR) dated 7 December 2006 be removed from her records.
   
2.  Her Unfavorable Information File (UIF) be removed from her records.

3.  She be promoted to the rank of master sergeant (MSgt) effective 1 July 2007 with back pay, benefits and allowances.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Through counsel applicant states she was issued an LOR for allegedly having an unprofessional relationship with another Airman, who was not in her chain of command or a member of her unit.  She had no professional interaction whatsoever with the Airman.  She began the relationship after she and her former husband had agreed to a divorce.  The divorce was the result of her former husband’s affairs while deployed to Iraq.  The relationship was not unprofessional as defined by Air Force instructions.  The relationship had absolutely no impact on her unit’s mission, performance, morale, or leadership.  The adverse actions taken against her therefore were grossly exaggerated, disproportionate, and unjust.

It’s clear the main concern of the Air Force is the avoidance of relationships that adversely affect, or may adversely affect, morale, discipline, unit cohesion, respect for authority, or mission accomplishment.  It is perfectly clear that her relationship had no such impact.  She admitted her relationship resulted from a lapse in judgment, in that she sought the comfort of another man while still legally married, though she was divorcing.  She never admitted, and in fact stated otherwise, that the relationship had any impact whatsoever on her unit or the authority of her command.  And in truth it did not.

A lapse in judgment in this context certainly could be conduct subject to informal counseling, yet it did not result in an unprofessional relationship as the Secretary the Air Force chose to define it.  Even if the relationship were unprofessional, the punishment was excessive.  The record demonstrates her commander counseled her concerning her relationship.  He stated she continued to have contact with the Airman, although he did not give her a direct order to terminate the relationship.  She did so in significant part because of her pregnancy and the resulting need for discussion and planning between the two of them.  The commander subsequently issued her a no contact order, dated 27 October 2006, with which she fully complied.  The action effectively ended the matter, or certainly should have, and no further discipline was necessary or required.  On 7 December 2006, the commander presented her with the LOR.  Her conduct in the interim period was impeccable, as usual.  She did not violate the no contact order and was not accused by her commander of having done so.  Rather than non-recommending her for promotion to MSgt, her commander could have taken a more appropriate and less destructive route of recommending the deferral of her promotion for a period of up to three months.

If the Board feels constrained from awarding her a full retroactive promotion with all back pay, benefits, and allowances, it should consider applying retroactively a 90-day or less promotion deferral as permitted by the AFI.  She has sustained brilliant performance throughout her entire career.  She admitted to a one-time error in judgment.  She never denied or tried to hide her relationship.  She never disobeyed an order, and she continued to excel in her performance of duties.  Her integrity, honesty, and loyalty are above reproach.  The Board should not allow a single sexual relationship that was not unprofessional or in any manner prejudicial to her unit or the Air Force to so severely damage such a distinguished and valuable career.

In support of her request, applicant provided a 20 page brief from her counsel, a copy of an awards and decoration printout, copies of AF IMTs 910, Enlisted Performance Report (AB thru TSGT); email communiqués, LOR Memorandums, AF Form 1058, Unfavorable Information File Action; statements and character reference letters, AFI 36-2909, Professional And Unprofessional Relationships; Notification of Nonrecommendation for Promotion letter, an extract from AFI 36-2502, Airman Promotion Program and other documents extracted from her military personnel records. 

Her complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System (MILPDS) indicates that the applicant enlisted in the Air Force on 13 July 1992 and is currently serving in the grade of technical sergeant having assumed that grade effective and with a date of rank (DOR) of 1 June 2004. 

On 15 June 2006, she was tentatively selected for promotion to MSgt during cycle 06E7.

On 7 December 2006, the applicant was issued an LOR for being involved in an inappropriate relationship, in direct violation of the Uniform Code of Military Justice, Article 92, Professional and Unprofessional Relationships.  On 7 December 2006, she acknowledged receipt of the LOR.

On 8 December 2006, she sent a rebuttal to the commander.  On 11 December 2006, the commander made his final decision to initiate an AF Form 1058, UIF action.  

On 20 December 2006, she acknowledged receipt of the UIF.  On 4 January 2007, she provided a rebuttal to the UIF and on 10 January 2007, the commander finalized the UIF and nonrecommeded her for promotion to MSgt.

On 26 June 2008, she was again selected for promotion to the grade of MSgt during cycle 08E7 with a promotion sequence number of 3136.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIMC recommends denial of her request to remove the LOR and UIF.  DPSIMC states as directed by AFI 36-2907 Unfavorable Information File Program, the UIF is an official record of unfavorable information on a member that is initiated by a member’s commander.  It is a file for documenting administrative, judicial or nonjudicial censures concerning negative aspects of the member’s performance, responsibility or behavior.  In this case, the LOR dated 7 December 2006, was filed in the UIF.  An individual has three duty days to acknowledge the AF Form 1058 with the intended actions and provide pertinent information before the commander makes the final decision.  She did provide rebuttal comments and the commander initiated the UIF per the instructions of AFI 36–2907.  After reviewing her request, DPSIMC validates the Article 15 [sic] and UIF were administered in accordance with the AFI.

The complete DPSIMC evaluation is at Exhibit C.

AFPC/DPSOE defers to the recommendation of DPSIMC concerning the issuance of the LOR and subsequent establishment of the UIF. DPSOE states the applicant was tentatively selected for promotion to MSgt during cycle 06E7.  She received PSN 4423.0 which would have incremented 1 July 2007; however, her promotion was cancelled due to the establishment of the UIF [sic]. 

The complete DPSOE evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded thru counsel stating the advisory opinion does not add anything to the existing record of facts and evidence.  It erroneously states she received nonjudicial punishment under Article 15.  This is incorrect, she did not undergo nonjudicial punishment and such action was never recommended.  She was recently selected for promotion to MSgt and this demonstrates that her admitted error in judgment was a minor, one-time issue.  She has continued to give her all despite the loss of promotion, LOR and UIF.  She believes the punishment was excessive.

The complete response is attached 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 error or injustice.  We thoroughly and carefully reviewed the applicant’s complete submission in judging the merits of her case.  However, the Board majority is not convinced by the applicant’s submission that the LOR/UIF action was unjust or unwarranted for the alleged offenses or that her previous promotion to MSgt should be reinstated.  The Board majority noted that the offenses cited in the LOR and UIF are supported by the evidence of record and evidence has not been presented which would lead them to believe the reprimand and the removal of her name from the promotion list were improper. Furthermore, the Board majority noted the commander made his decision to issue the LOR and establish the UIF only after reviewing applicant’s rebuttal comments to the LOR.  The Board majority is of the opinion that the applicant’s commander, being aware of all of the circumstances involved, was in the best position to determine whether the applicant should receive the LOR and UIF and that the commander acted on the basis of information he determined to be reliable when he made the decision.  Although the applicant presents detailed arguments, she has failed to provide persuasive evidence to show error or injustice in the initiation of the LOR, that the commander abused his discretionary authority when he imposed the LOR and non- recommended her for promotion, that the punishment was too harsh, or that she was not afforded all rights granted by Air Force instructions.  In view of the foregoing and in the absence of persuasive evidence to the contrary, the Board majority finds no 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.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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 the application.
_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2008-02013 in Executive Session on 16 September 2008, under the provisions of AFI 36-2603:

			Panel Chair
			Member
Member

By a majority vote, the Board voted to deny the request.  XXXXXXXXXXXXXXXXXX voted to correct the record and submitted a minority report.  The following documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 11 May 2008, w/atchs.
  Exhibit B.  Master Military Personnel Records.
  Exhibit C.  Letter, AFPC/DPSIMC, dated 13 May 2008.
  Exhibit D.  Letter, AFPC/DPSOE, dated 9 June 2008, w/atchs.
  Exhibit E.  Letter, SAF/MRBR, dated 1 August 2008.
  Exhibit F.  Letter, Applicant, not dated.
  Exhibit G.  Letter, Minority Report, XX September 2008.

                                   
                                   Panel Chair

AFBCMR BC-2008-02013

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 					              FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  

	I have carefully considered all the circumstances of this case and do not agree with the majority members of the panel that the applicant’s request should be denied in its entirety.

The applicant is requesting that the administrative actions taken against her be removed from her records and the decision to non-recommend her for promotion to master sergeant be reversed.  The aforementioned actions were the result of what her commander determined was an unprofessional relationship with another Airman.  The applicant contends that the relationship did not rise to the level of "unprofessional" as defined in Air Force Instructions.  The majority of the Board, believing that her commander was in the best position to render a determination in this matter and finding no evidence that her commander abused his discretionary authority, recommends denial of her request.  The minority member agrees with the applicant that there is no evidence that her relationship was "unprofessional' and believes the actions of her commander were unnecessary in this case.

	I do not necessarily agree with the minority member that administrative action was unnecessary in this case.  However, taking into consideration her record of exemplary service prior to and subsequent to the events under review, it is my opinion that reasonable doubt has been established as to whether the decision to non-recommend her for promotion was overly harsh and that deferral of her promotion would have been the most appropriate action to have taken.  I further believe that the benefit of any doubt in this matter should resolved in her favor.  Therefore, it is my decision that her records be corrected accordingly.

                                                                        
                                                                        Director
                                                                        Air Force Review Boards Agency

AFBCMR BC-2008-02013

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 XXXXXXXXXXXXXXXXXX, be corrected to show that:

a.  The nonrecommendation for promotion to the grade of master sergeant initiated on 20 December 2006 be, and hereby is, declared void and removed from her records.

b.  Her promotion to the grade of master sergeant was deferred from 1 July 2007 through 30 September 2007.

		b.  She was promoted to the grade of master sergeant effective and with a date of rank of 1 October 2007.

                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency