RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05859 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His Letter of Reprimand (LOR) be removed from his records. 2. His referral Officer Performance Report (OPR) for the period ending 19 Mar 12 be removed from his records. APPLICANT CONTENDS THAT: In his behalf, counsel alleges that there are multiple material errors that were prejudicial to the applicant’s rights. The majority of the allegations are false and the result of a flawed investigation. Additionally, the Investigating Officer (IO) failed to preserve witness statements, lacked reliability and trust worthiness and produced recommendations that were not substantiated. The LOR makes multiple allegations that were not supported by a preponderance of the evidence in the investigation. The applicant denies any wrongful sexual contact or even contact and denies saying anything inappropriate. The Command Directed Investigation (CDI) failed to produce sufficient evidence to support the adverse actions. All of the witnesses had credibility issues and there was no attempt to recover corroborating e-mails and Facebook messages. The flaws in the investigation were such that a just result is the removal of the contested documents. To the extent necessary, they have served their intended purpose as he has served exceptionally in the aftermath of the investigation. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant was commissioned in the Regular Air Force on 13 Aug 00 and is currently serving on active duty in the grade of major (O-4). According to a CDI dated 23 Feb 12, the following allegations were investigated: a. Between May thru Jun 11, while occupying a position of authority, the applicant made inappropriate comments constituting sexual harassment of a female employee in regards to their getting together to unwind and have drinks as well as remarks about a particular dress “doing things to him.” Allegation 1 was substantiated as sexual harassment. b. Between May thru Jun 11, he made inappropriate comments to a female employee constituting sexual harassment in that he asked her repeatedly where she was going on her way to the bathroom which made her noticeably uncomfortable as if he was “hitting” on her and that his comments were perceived as “flirty” and considered “weird” by co-workers. Allegation 2 was substantiated as sexual harassment. c. Between Nov 11 thru Feb 12, he made inappropriate comments to a female employee constituting sexual harassment by commenting twice on how “hot” her daughters were in their pictures and asking how he could get with the oldest daughter; and suggesting that he should drop by her house, get in her hot tub and drink wine together. Allegation 3 was substantiated as sexual harassment. d. On numerous occasions he asked a temporary student employee into his office. On one of those occasions, he touched her without consent and in a sexual manner when he put one hand on the front of her nametag, his other hand inside her shirt, and with the back of his hand against her breast adjusted the magnetic backing of her nametag. He then very deliberately rubbed his fingertips on her breast when removing his hand. He asked her numerous times when they could repeat the “nametag adjustment.” He also told her that he missed her and kissed the back of her hand in an inappropriate manner at work. He continued to e-mail and call her to get together with him. Allegation 4 was substantiated as wrongful sexual contact in violation of Article 120(m), Uniform Code of Military Justice (UCMJ), and conduct unbecoming an officer in violation of Article 133, UCMJ. e. In Jan 12, he made inappropriate comments constituting sexual harassment by “friending” a female employee on Facebook and making sexual comments to her such as “who is that smoking hot woman in this picture?” and “Let me meet that girl sometime.” The IO found that the employee did not know the applicant’s position in the squadron while the exchanges were taking place. Allegation 5 was substantiated as conduct unbecoming an officer and not sexual harassment. f. On 25 Jan 12, the applicant was observed peeking around the corner at a female employee for no apparent reason after conducting a business transaction at Outdoor Recreation. It appeared to the witness that he was flirting and was hanging around staring at her. The IO could not corroborate that the applicant said, “I need to get a job here because you hire all the cute women.” Allegation 6 was substantiated in part but did not constitute overt misconduct. g. On 27 Jan 12, the applicant allegedly asked a female employee working at Outdoor Recreation to go to Sno-fest with him. It was determined the preponderance of the evidence did not support the allegation. Allegation 7 was not substantiated. h. The IO found the applicant engaged in other instances of sexual harassment of military and civilian female employees while he was the Deputy Director of the 10th Force Support Squadron, United States Air Force Academy (USAFA), CO. An employee observed the applicant flirting with various female employees in the squadron and thought it was odd that he would suggest that she and another employee who were 19 and 17 years old at the time go out with them and act as designated drivers. The IO found that the facts and circumstances support the conclusion that the applicant’s conduct of a sexual nature had the effect of unreasonably interfering with military and civilian female employees’ work performance and created an intimidating, hostile or offensive work environment. Allegation 8 was substantiated as sexual harassment. On 12 Mar 12, the USAFA Attorney-Advisor found the Report of Investigation (ROI) legally sufficient. On 13 Mar 12, the 10th Mission Support Group Commander (MSG/CC) issued the applicant an LOR for sexual harassment as defined in AFI 36-2706, Equal Opportunity Program, Military and Civilian, for wrongful sexual contact as defined by Article 120(m), UCMJ, and conduct unbecoming an officer as defined by Article 133, UCMJ. He was severely reprimanded for his decision to engage in unacceptable behavior which created an offensive work environment and reflected poor judgment. The LOR states the 10th MSG/CC intended to use the LOR to establish an Unfavorable Information File (UIF) and place him on the Control Roster (CR). According to an AF IMT 1058, Unfavorable Information File (UIF) Action, dated 13 Mar 12, the applicant was placed on the CR and a UIF was established. According to his AF Form 707, Officer Performance Report (Lt thru Col), for the period ending 19 Mar 12, he received a referral OPR. The reasons for the referral OPR were wrongful sexual contact with one female employee and sexual harassment of multiple female employees for which he received a LOR, UIF and CR action. AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicant’s request to remove the LOR. The evidence presents only minor discrepancies which have no bearing on the administrative action itself. In Accordance With (IAW) AFI 36-2907, Unfavorable Information File (UIF) Program, paragraph 3.5, “Administer a counseling, admonition, or reprimand, verbally or in writing. If written, the letter states: What the member did or failed to do, citing specific incidents and their dates, what improvement is expected that further deviation may result in more severe action. That the individual has 3 duty days to submit rebuttal documents for consideration by the initiator. The person who initiates a Record of Individual Counseling (RIC), Letter of Counseling (LOC), Letter of Admonishment (LOA), or LOR, may send it to the member’s commander or superiors for information, action, or for their approval for file in the UIF or Personal Information File (PIF). Include the applicant’s written acknowledgement and any documents submitted by the member.” There is no evidence whether the commander properly finished the LOR. However, the discrepancies do not invalidate the commander’s action and authority to administer the LOR. A complete copy of the DPSIM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to remove the contested OPR based on the recommendation of DPSIM and the lack of corroborating evidence. The applicant has not provided compelling evidence to show that the report was unjust or inaccurate at the time it was written. Additionally, the applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB) IAW AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. IAW AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 1.3.1, “Evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions such as Article 15, LOR, admonishment, or counseling, or placement on the CR have been taken.” In this case, he was accused of sexual harassment of several females in his unit under his chain of command. The rating chain appropriately chose to comment and document the wrongdoing which caused the report to be referred. The applicant provided no evidence within his case to show that the referral comments on the OPR were inaccurate or unjust; therefore, DPSID contends the inclusion of the referral comment was appropriate and within the evaluator’s authority to document given the incident. Moreover, a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/commander served as a final “check and balance” in order to ensure that the report was given fair consideration. Based upon the presumed sufficiency of the LOR, UIF and CR as served to the applicant, DPSID concludes that its mention on the contested report was proper and IAW all applicable Air Force policies and procedures. Consequently, this element of the applicant’s appeal is without merit. A complete copy of the DPSID evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 12 Nov 14 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. THE BOARD CONCLUDES THAT: 1. The applicant has not exhausted all remedies provided by existing law or regulations to warrant removal of the contested report from his records. In this respect, we note this Board is the highest administrative level of appeal within the Air Force. As such, the applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction. AFPC/DPSID has reviewed this application and indicated there is an available avenue of administrative relief the applicant has not first pursued. In view of this, we find this application is not ripe for adjudication at this level as there exists a subordinate level of appeal that has not first been depleted. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant removing the LOR from the applicant’s record. 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 AFPC/DPSIM and adopt its rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find 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 an 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 and exhausting all subordinate avenues of administrative relief. The following members of the Board considered AFBCMR Docket Number BC-2013-05859 in Executive Session on 20 Jan 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 23 Dec 13, w/atchs. Exhibit B. Report of Investigation, dated 12 Mar 12. Exhibit C. Memorandum, AFPC/DPSIM, dated 19 Feb 14. Exhibit D. Memorandum, AFPC/DPSID, dated 8 Oct 14. Exhibit E. Letter, SAF/MRBR, dated 12 Nov 14.