RECORD OF PROCEEDINGS

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2009-02498

COUNSEL: NONE

HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

1. A letter of reprimand (LOR) dated 10 Jan 08; a referral Officer Performance Report (OPR) dated 14 May 08 be removed from his record (including the C-fiche and Master Personnel Record Group (MPRG), and that any mention of such be removed from his Officer Selection Record (OSR), performance report records and his Unfavorable Information File (UIF).

2. Should the derogatory information be removed after the Major promotion board on 2 Nov 09, he also requests he be granted a special selection board (SSB).

3. If the BCMR directs that the referral OPR be removed, he asks that the final draft of his PRF be removed and replaced with the original PRF or that a new PRF be accomplished.

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APPLICANT CONTENDS THAT:

Administrative actions resulting from a Commander Directed Investigation (CDI) have been used against him in an unethical and punitive manner to end his career. No substantial evidence or formal charges have been brought against him. He believes administrative paperwork that is intended to rehabilitate behavior has been used in a manner that has denied him his constitutional right of due process, the opportunity to defend himself, and the right to remain innocent until proven guilty. Additionally, the referral OPR is in violation of Air Force Instruction (AFI) 36-2406.

In support of his appeal, the applicant provides a personal statement and copies of the referral OPR, other performance reports and the LOR with his response and 24 attachments – letters of support.

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

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STATEMENT OF FACTS:

The applicant is serving in the Regular Air Force as a chaplain in the grade of captain. While deployed to the Middle East, on or about 14 Dec 07, the applicant allegedly committed a homosexual act against his roommate by grabbing his buttock.

The roommate eventually reported the incident through his chain-of-command and the Sexual Assault Response Coordinator (SARC). On 26 Dec 07, USCENTAF/CC was notified and, on 27 Dec 07, approved a limited fact finding inquiry assigning a USCENTAF JAG officer as the Inquiry Officer (IO). The IO was charged with determining whether or not the applicant engaged in a homosexual act but was directed not to inquire into the sexual orientation of the applicant.

The IO began his investigation on 31 Dec 07 and on 2 Jan 08, he forwarded his findings to USCENTAF/CC. The IO found that a greater weight of credible evidence made it more likely than not that the applicant knowingly and voluntarily grabbed his roommates buttock, satisfying the regulatory definition of a homosexual act.

On 22 Jul 09, the LOR dated 10 Jan 08 was removed from his records along with any mention of or peripheral files related to, the LOR. This action was taken at the request of his current commander.

The remaining pertinent facts and findings of the investigation are contained in the Report of Inquiry prepared by the IO at Exhibit F.

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AIR FORCE EVALUATION:

AFPC/DPSIMC makes no recommendation but only validates that the LOR and UIF process was done in accordance with AF Instructions.

DPSIMC’s complete evaluation is at Exhibit C.

AFPC/DPSIDEP addresses the requests to remove the referral OPR and correct or replace his PRF. DPSIDEP recommends denial of both. DPSIDEP notes the applicant failed to submit his request to the Enlisted Reports Appeals Board (ERAB) prior to forwarding it to the BCMR. However, the ERAB reviewed his request to remove the referral OPR and recommend denial. With regard to the applicant’s contention the referral OPR violated AFI 36-2406, which prohibits the mention of any personnel action taken against a member that resulted in either acquittal or was not successfully implemented may not be mentioned in the OPR, by noting that the underlying conduct that formed the basis for the action is permissible.

DPSIDEP states there was no “acquittal or failure to implement” the LOR; the applicant, did, in fact, receive a LOR for the actions mentioned in the contested report. Additionally, the applicant received a Letter of Evaluation (LOE) that mentions the incident; therefore, the report was accurate based on the information available at the time it was written. DPSIDEP further notes the removal of the LOR and UIF from the applicant’s records does not negate the fact that the incident did occur and the evaluators made a distinct decision at the time the OPR and PRF were written to comment on the incident.

DPSIDEP’s complete evaluation is at Exhibit D.

AFPC/DPSOO recommends denial of the applicant’s request for an SSB. DPSOO notes the applicant is meeting the P0409C Central Selection Board (CSB) in-the-promotion zone with a “Do Not Promote” recommendation. DPSOO notes the findings and recommendations of DPSIMC and DPSIDEP in that the LOR and UIF were correctly established and that referral comments in the OPR and PRF were permissible.

DPSOO’s complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant implores the Board to consider the statement of the IO on page 9, paragraph 3 of the ROI: “Because there are no witnesses (emphasis by applicant), other than the applicant and his roommate and no physical evidence, (emphasis by applicant). Therefore, the credibility and truthfulness of the witnesses is significant. In that vein, as noted earlier, Chaplain N did not like him and they had issues at their home station where Chaplain N was his supervisor. He notes that since his case will be decided on character alone, he has provided 25 stellar character letters of support.

Applicant’s complete response is at Exhibit G.

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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 notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered.

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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 AFBCMR Docket Number BC-2009-02498 in Executive Session on 17 November 2010, under the provisions of AFI 36-2603:

, Panel Chair

, Member

, Member

The following documentary evidence was considered:

Exhibit A. DD Form 149, dated 1 Jul 09, w/atchs.

Exhibit B. Applicant's Master Personnel Records.

Exhibit C. Letter, AFPC/DPSIMC, dated 11 Sep 09.

Exhibit D. Letter, AFPC/DPSIDEP, dated 26 Jan 10, w/atch.

Exhibit E. Letter, AFPC/DPSOO, dated 17 Feb 10.

Exhibit F. Letter, SAF/MRBR, dated 12 Mar 10.

Exhibit G. Letter, Letter, Applicant, dated 8 Apr 10.

Panel Chair