RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03551 INDEX CODE: 111.01 XXXXXXX COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Letter of Reprimand (LOR) be removed from his records. 2. His removal from command be set aside. 3. His AF IMT 707, Officer Performance Report (MAJ-COL), rendered for the period 16 January 2007 through 15 October 2007, be removed from his records. 4. He be reinstated to the lieutenant colonel (Lt Col) promotion list with his original line number. _________________________________________________________________ APPLICANT CONTENDS THAT: Counsel states that while the applicant was stationed at F.E. Warren AFB WY, in June 2007, an allegation was made that on several occasions the applicant grabbed the buttocks of a female company grade officer (Captain) at an off-duty event. The company grade officer was a JAG attorney who reported the alleged incident to her squadron commander. Security Forces launched an investigation and concluded that he had committed the offenses of conduct unbecoming an officer, assault, uttering provoking speech and gestures and sexual harassment and assault. The bulk of the evidence is Captain ’s statement and she gives many witnesses who should be able to corroborate her story. Unfortunately, none of the witness statements matchup with her description of what happened. Several individuals who allegedly witnessed the event could not recall anything out of the ordinary or inappropriate having occurred during the event. The applicant was heard commenting on Captain ’s attractive features but nothing explicitly sexual. The applicant was accompanied by several individuals that evening but Security Forces did not interview them. He provided statements from the witnesses in response to his referral performance report. These statements corroborate the fact that he did not act inappropriately towards Captain as her statements alleges. In short, the evidence presented from both sides is in direct contradiction to one another. There is more than enough to find reasonable doubt that the events occurred as alleged by Captain . No parts of her story can be accurately corroborated and the only person that was supposed to have been present was Major . The one witness who should have been able to corroborate her story in fact provided direct evidence to the opposite, that he did not witness anything inappropriate or out of the ordinary. The bartender provided information that the applicant acted inappropriately towards her on a number of occasions. However, her version of the events is the only version and her allegations cannot be corroborated. The applicant has continued to maintain his innocence in these allegations and to date no additional evidence has been provided to corroborate any of the allegations made against him. The fact that he exercised a constitutional right to remain silent and speak with an attorney has been held against him as the alleged victims’ stories are taken as truth when nothing can corroborate them. If anything can be proven from all of the statements it is the fact that he was drinking alcohol during most of the events in question. As a result, he evaluated his professional lifestyle and reflected on the perception of his alcohol use to those in his command. He voluntarily enrolled and successfully completed the Alcohol and Drug Abuse Prevention and Treatment Program (ADAPT). The fact that the allegations made by Captain and the bartender cannot be corroborated, combined with his outstanding service record, necessitates the result that the negative actions taken against him be overturned. In support of his request, applicant provided copies of an eight page brief prepared by his counsel along with witness statements, a copy of the LOR with his response, a copy of his removal from command letter, AF Form 707 and his response to the referral report with witness statements. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Information extracted from the Military Personnel Data System (MILPDS) indicates the applicant was commissioned in the Regular Air Force on 17 February 1993 and is currently serving in the grade of major having assumed that grade effective and with a date of rank (DOR) of 1 April 2003. While serving as the commander of the 90th Contracting Squadron, F.E. Warren AFB, Wyoming, he was on the select list for promotion to Lt Col. On 29 August 2007, he received an LOR for the following allegations of misconduct: 1) In April 2007, he inappropriately placed his hand on the buttocks of Captain while attending a wing dinning out. 2) In June 2007, he inappropriately touched Captain and made inappropriate comments of a sexual nature towards her after consuming alcohol at a party. 3) On several occasions he acted inappropriately towards the bartender at the on-base club through sexual comments and wrongful touching. 4) During this timeframe, he also inappropriately touched the bartender when he encountered her at an off base establishment. Subsequent to the LOR he was relieved of duty as Commander, 90th Contracting Squadron, received a referral OPR that closed out in August 2007 and his name was removed from the Lt Col promotion list. These actions were supported by evidence obtained by Security Force investigators and contained in their Report of Investigation (ROI). As part of the investigation, he was afforded the opportunity to be interviewed and make a statement; however, he declined. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/JA recommends denial. JA states the applicant’s counsel’s contention that the statements submitted by the applicant raise a reasonable doubt whether the events occurred as testified to by Captain is not only wrong but misstates the applicable standard of proof. Reasonable doubt is a criminal law standard of proof applicable to trials by court-martial, but it has no relevance whatsoever to the actions at issue here. Moreover, the statement submitted by the applicant (other than his own self-serving affidavit) do not directly contradict the key events related by Captain or the bartender. Captain is a commissioned officer who, unlike the applicant, had no alcohol to drink on the occasions in question and no reason to lie. Her detailed recollection of events is fully credible and more than sufficient to sustain the first portion of the charges at issue. The same analysis applies to the allegations concerning his misbehavior toward the bartender. His counsel contends that since the bartender’s version of events is the only evidence available, the information cannot be found conclusive that he committed the acts. Once again his counsel is incorrect; the correct standard of proof is preponderance of the evidence not conclusive proof. JA states the bartender’s statement is credible and she too has no apparent reason to lie. Her statement constitutes sufficient evidence to sustain the second portion of the charges at issue. His counsel is also mistaken in his contention that Captain and the bartender’s statements fail to establish the acts of misconduct because they cannot be corroborated. That contention is totally without merit, the statements are sufficient by themselves to sustain the allegations. Also without merit is the counsel’s notion that he invoked his right to remain silent and as a result it has been held against him. His choice to decline an interview with Security Forces was clearly a proper choice to which he was entitled. To argue now, however, that the investigation was incomplete because it did not include his input is totally spurious. It is obvious that the other statements he has appended to his application, those of his girlfriend and others who were present only for the event on 15 June 2007, do not in any way diminish his culpability as established by the ROI. Finally, the evidence contained in the ROI, as well as the LOR, referral OPR and promotion removal action were all reviewed for legal sufficiency by the base legal office and the ROI and promotion propriety action were reviewed by HQ USAF/JAA and SAF/GCM. All were found to be legally sufficient. Moreover, with respect to the action to remove his name from the promotion list to Lt Col, JAA finds it noteworthy that in his 27 September 2007 response to the promotion priority action he acknowledged that his actions placed his character and integrity in question. He also apologized for the unacceptable behavior he exhibited on the date in question. The evidence of record is sufficient to establish the acts set out in the LOR and promotion propriety actions. That evidence fully supports those actions, as well as the referral OPR and the removal from his position as commander. Consequently no error or injustice with respect to any of these actions has been established. The complete JA evaluation, with attachment, is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel responded stating Captain alleged that the inappropriate behavior displayed by the applicant was witnessed by a third party. However, all third-party statements seemed to indicate the opposite result, that no one saw him commit the acts alleged. In an additional statement provided by now Lt Col he again reiterates that if the applicant would have acted inappropriately he would have definitely noticed it due to their close proximity. The only evidence of inappropriate touching was Captain ’s statement. It is hard to give her the benefit of the doubt when the parties she listed as witnesses do not corroborate her version of events. The applicant’s witnesses confirmed they did not witness any inappropriate behavior between him and Captain . A new witness, Airman First Class (A1C) D attended the golf course event on 15 June 2007. A1C D stayed close to the applicant throughout the evening as he was one of the few people he knew. A1C D did not observe any embarrassing or inappropriate behavior committed by the applicant that evening. The allegations made by the bartender are not corroborated by anyone. The bartender cannot be viewed as credible. In her statement to investigators she stated that the applicant acted inappropriately towards three other women. These three women provided statements stating that he never acted inappropriately towards them or around them. In addition the club manager provided a statement that the bartender was less than truthful on a number of occasions and was not trustworthy. The club manager never observed the applicant acting inappropriately nor received any complaints about him from the bartender or any other patrons. No one in good faith can say that the events occurred as Captain alleged. Her story was not corroborated and was contradicted. It is hard to say that more likely than not things occurred the way alleged by Captain . The applicant should be given the benefit of the doubt as a field grade officer with exemplary service. In Captain ’s version of events, the person that was supposed to have been present for all the incidents of inappropriate behavior was Major . The one witness who should have been able to corroborate her story in fact provided direct evidence to the opposite, that he did not witness anything inappropriate or out of the ordinary. While the applicant did take responsibility for his drinking, this does not make him more prone to harass women, as alluded to by the advisory opinion. When taking responsibility for his “unacceptable behavior” he was taking responsibility for his drinking. This should not be viewed as an admission of committing the acts alleged against him. When evaluated by the ADAPT, he did not meet the criteria for substance abuse diagnosis, and merely received information on responsible drinking. He was required to be seen by ADAPT because he was involved in an alcohol-related incident. His complete response, with attachments, is at Exhibit E. _________________________________________________________________ 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 injustice. After a thorough review of the evidence of record and the applicant's complete submission, we do not find his uncorroborated assertions sufficiently persuasive to override the rationale provided by the Air Force office of primary responsibility (OPR) and therefore we agree with the Air Force OPR and adopt the rationale expressed as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In the absence of persuasive 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 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 this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2008-03551 in Executive Session on 10 February 2009, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-03551 was considered: Exhibit A. DD Form 149, dated 22 September 2008, w/atchs. Exhibit B. Security Forces Report - Withdrawn. Exhibit C. Letter, AFPC/JA, dated 31 October 2008, w/atch. Exhibit D. Letter, SAF/MRBR, dated 21 November 2008. Exhibit E. Letter, Applicant’s Counsel, not dated, w/atchs.