RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04108 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. The Letter of Reprimand (LOR), issued on 23 October 2012, along with the accompanying Unfavorable Information File (UIF) be declared void and removed from his records. 2. His Officer Performance Report (OPR) rendered for the period 1 May 2012 through 30 April 2013, be removed from his records and substituted with a re-accomplished OPR. 3. The Promotion Recommendation Forms (PRFs) for the P0612B and P0613C, Below the Promotion Zone (BPZ) Central Selection Boards (CSBs) be amended. 4. He be considered for promotion to the grade of colonel by the P0612B and P0613C CSBs. 5. In a letter dated 22 August 2014, the applicant also requested that his OPR ending 30 April 2014, be amended or removed from his records; his In-the-Promotion-Zone (IPZ) Management Level Review (MLR) PRF for the P0614C CSB be amended and that he be considered for promotion to the grade of colonel by the P0614C CSB. APPLICANT CONTENDS THAT: He was relieved of command and issued an LOR/UIF based on the findings of a Commander Directed Investigation (CDI) which did not meet minimum mandatory Air Force requirements, discrediting the credibility of the report. Further, subsequent actions against him were in violation of laws and regulations resulting in a punishment which was clearly unjust and unfair. The Investigating Officer (IO) intentionally kept him from making a statement and providing evidence in his defense. At no point did he refuse to answer questions or did he invoke his Article 31 rights. In fact, he willingly agreed to provide a statement. Nonetheless, for no legitimate reason, the IO made a conscious decision not to interview him and did not document why he did not interview him as required by the SAF/IGQ CDI Guide. In other words, the IO did not meet mandatory requirements to interview all subjects showing further intent to skew his findings. The conclusions of the legal review were inaccurate regarding legal and administrative requirements of the CDI as they pertained to him. Paragraph 7 of the legal review states, "[The IO] has complied with all applicable legal and administrative requirements in conducting his investigation," however, this statement was made in error as the IO clearly identified the applicant as a subject in the ROI. The IO showed intent to deceive and skew his findings by attempting to mislead him on his status in the CDI. In an email dated 27 August 2012, the IO stated he was a witness in the CDI rather than a subject. This is despite the fact he clearly identified him as a subject from the start. The IO did not make him aware of the allegations against him. If he was only considered a witness in the CDI as the legal review assumes, then he should have been identified as a subject and offered an opportunity to provide an interview, witnesses and evidence in his defense. In either case minimum requirements were not met making the CDI legally insufficient. The cumulative effects of the LOR/UIF that resulted from these actions on his family and career have been devastating. Although the Board is incapable of mending the injuries to his family, he asks favorable consideration for professional redress as requested. In support of his request, the applicant provides 41 exhibits, which include copies of his LOR, UIF, CDI Report of Investigation (ROI), extracts from Air Force Instructions (AFI), OPRs, PRFs, a proposed substitute OPR that now contains stratification statements, electronic communiqués, memorandums, character statements and various other items related to his requests. The applicant's complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving in the Air Force in the grade of Lieutenant Colonel (Lt Col, 0-5). The following facts of the CDI dated 18 September 2012, center on an unprofessional relationship between the FSS/CC and the applicant; two deployed squadron commanders. (Exhibit I). On 1 August 2012, the husband of the FSS/CC alleged that his wife and the applicant were having an unprofessional relationship for approximately six months while deployed overseas. Upon his wife’s return from an overseas deployment, he brought his allegation to the attention of her commander and the applicant’s commander. The applicant and the FSS/CC were deployed for approximately one year. According to the CDI, while the allegations brought by the complainant involved both the FSS/CC and the applicant, the investigation focused on the FSS/CC due to supervisory limitations of the appointing officer. Nonetheless, Air Force leadership for both subjects decided to conduct one CDI initially then share the results. On 24 August 2012, the FSS/CC’s commander appointed an IO to investigate all the facts and circumstances concerning allegations of an unprofessional relationship entered into and maintained by the FSS/CC. The specific allegations follow: Allegation 1: On or about l February 2012 to 1 August 2012, the FSS/CC violated a lawful general regulation, by wrongfully participating in an unprofessional relationship with the applicant in violation of Article 92, Uniform Code of Military Justice (UCMJ). (Substantiated) Allegation 2: On or about l February 2012 to 1 August 2012, the FSS/CC violated a lawful general regulation. While serving as squadron commander, she abused her command authority to facilitate an unprofessional relationship with the applicant, to the disgrace of the armed forces, in violation of Article 133, UCMJ. (Not Substantiated) Allegation 3: The FSS/CC, having knowledge of a lawful order issued by her deployed commander; failed to obey the same by wrongfully continuing an unprofessional relationship with the applicant, in violation of Article 134, UCMJ. (Not Substantiated) Allegation 4: On or about l February 2012 to 1 August 2012, the FSS/CC violated a lawful general regulation by improperly using government equipment to facilitate an unprofessional relationship, in violation ·of Article 92, UCMJ. (Not Substantiated) Allegation 5 (Added during the investigation): The FSS/CC, a married woman, did during her deployment wrongfully have sexual intercourse with the applicant, a married man who was not her husband, in violation of Article 134, UCMJ. (Substantiated) While six witness interviews, that included the FSS/CC’s superiors and subordinates at the deployed location revealed no misconduct, the IO found credible evidence of the affair in the examination of at least 100 emails between the FSS/CC and the applicant. In an email to the applicant sent on 27 August 2012, the IO advised him that he was appointed as the IO and wanted to organize a time to interview him. In another email to the applicant sent on 4 September 2012, the IO advised the applicant that he did not plan to interview him. The IO found that the FSS/CC and the applicant had an extramarital relationship during the period in question which met the thresholds for unprofessional relationships outlined in AFI 36- 2909, Professional and Unprofessional Relationships. The IO substantiated one of the original four allegations; that an unprofessional relationship existed. Additionally, during the course of the investigation the IO determined by a preponderance of evidence, that the FSS/CC and the applicant had an adulterous affair in violation of Article 134, UCMJ. This finding was added as a fifth allegation. According to the IO, the preponderance of evidence suggests that the FSS/CC was involved in an extramarital affair with the applicant which included sexual relations. Based on testimony, their relationship did not affect the good order and discipline of the FSS/CC’s squadron. “Nevertheless, there was enough of an impact at the deployed location for an airman to file an anonymous IG complaint in May 2012 indicating their relationship had a negative impact on unit morale to some degree.” The IO recommended Article 15, non-judicial as the appropriate disciplinary action for the FSS/CC. Furthermore, he recommended the findings of the CDI be shared with the applicant’s chain of command. In a letter dated 29 September 2012, the 11WG/JA concluded that the CDI ROI was legally sufficient. In a letter dated 11 October 2012, the applicant received a LOR for having an unprofessional sexual relationship with another squadron commander. In a letter dated 11 October 2012, the applicant acknowledged receipt of the LOR and stated he intended to provide comments or written documentation in response to this action. In a letter dated 17 October 2012, the applicant submitted a rebuttal. In his rebuttal to the commander, he stated that family problems, the pressures of a deployed command and his selection for a third command assignment caused numerous stressors in his life, which resulted in insomnia and depression. His primary care physician prescribed him anti-depressants at increasing dosages. During this time, the FSS/CC, was a source of support and a non- attributional sounding board. His emails to her were unquestionably inappropriate and he understood why some others may have perceived their relationship as such. He asked his commander to understand how he had imperfectly handled the most difficult time of his life. He stated that he fully understood the need for officer accountability and understood that Air Force guidance requires commanders to take into account the full context of events rather than just the findings of an incomplete investigation. Therefore, he requested that the commander consider issuing a Letter of Admonition rather than a LOR. After review of the applicant's rebuttal, the commander decided to uphold the LOR. On 23 October 2012, the applicant’s commander decided to establish a UIF and placed the LOR dated 11 October 2012, in the UIF. On 5 March 2014, the PACAF/CC decided to remove the LOR dated 11 October 2012 and to terminate the UIF. AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicant’s request to remove his LOR/UIF. The commander followed proper procedures which were consistent with the procedural and substantive requirements of AFI 36-2907, The Unfavorable Information File (UIF) Program. The complete DPSIM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to replace the contested OPR or amend his PRFs. The applicant has not substantiated that the contested OPR was not rendered in good faith by all evaluators based on knowledge available at the time. The applicant contends that the OPR is unjust based on a lack of stratification after having received an LOR/UIF during the reporting period and requests the contested report be substituted. Non-selection for promotion is, for many, a traumatic event, and the desire to overturn that non-selection is powerful motivation to appeal. However, the ERAB is careful to keep the promotion and evaluation issues separate, and to focus on the evaluation report only. AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 1.3.1 states: “Evaluators are strongly encouraged to comment in performance reports (and an officer’s next PRF) on misconduct that reflects a disregard of the law, whether civil law or the UCMJ or when adverse actions such as Article 15, Letters of Reprimand, Admonishment, or Counseling, or placement on the Control Roster have been taken.” In this case, the applicant (a commander), was having an adulterous affair with a fellow commander while deployed. Given the incident, the rating chain still chose not to comment and document the underlying wrong doing. The applicant provided no evidence to show that the OPR was inaccurate or unjust; therefore, the OPR is accurate as written. The applicant also contends that his two BPZ (P0612B and P0613C) PRFs should be revised as though he had not received the LOR/UIF. The applicant has not provided evidence of an error, injustice or support from either the senior rater who accomplished the PRFs nor has the MLR president supported a change to either PRF. AFI 36- 2406, paragraph 10.2.4.6 states: "When an evaluator supports changing ratings, all subsequent evaluators must also agree to the changes, (including the commander on EPRs, the reviewer on OPRs, and the MLR Board President on PRFs).” Again, the applicant provided no evidence to show that the PRFs were inaccurate or unjust when originally written; therefore, the PRFs are accurate and in accordance with Air Force policy and guidance. The fact remains that the applicant's contested OPR is not a referral. His contention is simply the lack of an optional stratification. Although the applicant provided a memorandum of support from his rater and a proposed substitute report, the report is incomplete and will not be considered. AFI 36-2401, Paragraph 1.3 states: Prohibited Requests - The ERAB will not consider nor approve requests to: Change (except for deletions) an evaluator's ratings or comments if the evaluator does not support the change. When an evaluator supports changing ratings, all subsequent evaluators must also agree to the changes. It is also a prohibited request to re-accomplish a report without the applicant furnishing the new completed report. Additionally, the most effective evidence consists of statements from the evaluators who signed the original report. Such statements if available should: Cite important facts or circumstances that were unknown when the evaluators signed the report; detail the error or injustice; explain how and when it was discovered; include the correct information; relate to the contested reporting period; address the allegations and substantially challenge or disprove comments or ratings in the report. The applicant has provided absolutely no proof that the OPR or the subject PRFs received are inaccurate or unjust based on the evidence, or lack thereof. The complete DPSID evaluation is at Exhibit D. AFPC/DPSOO recommends denial of the applicant’s request for SSB consideration based on DPSIM's recommendation to deny the applicant’s request to remove the LOR/UIF and DPSID's recommendation to deny his request to replace the contested OPR. The applicant met and was non-selected for promotion by the Calendar Year (CY) 2012B (P0612B) and CY 2013C (P0613C) Colonel CSBs, which convened on 5 November 2012 and 4 November 2013, respectively. The complete DPSOO evaluation is at Exhibit E. AFPC/JA recommends denial. As a result of a complaint received from the husband of the FSS/CC that his wife was having an affair with the applicant while both were deployed; on 24 August 2012, the FSS/CC’s commander appointed an IO to investigate four specific allegations as they related to the FSS/CC. Those allegations were that the FSS/CC violated AFI 36-2909, by maintaining an unprofessional relationship with the applicant from 1 February 2012 to 1 August 2012; that the FSS/CC facilitated that unprofessional relationship by abusing her command authority; that the FSS/CC failed to obey an order by her commander by continuing the unprofessional relationship; and that the FSS/CC improperly used government equipment to facilitate the unprofessional relationship. A fifth allegation was added during the investigation; i.e., that the FSS/CC, a married woman, during the course of her deployment, wrongfully had sexual intercourse with the applicant, a married man not her husband. As a result of his investigation, which ran from 24 August 2012 to 13 September 2012, the IO substantiated the first and fifth allegations, but did not substantiate the other three. Contrary to one of the applicant's allegations; he was not a formal subject of the investigation due to the supervisory limitations of the appointing officer. As such, there was no requirement for the IO to interview him. Nevertheless, the IO indicated a desire to interview him as a witness, but when the applicant demanded the presence of his attorney at any interview and demanded to see the questions ahead of time, the IO decided not to do so. Given that the applicant presented the same matters in rebuttal to the LOR that he says he would have provided to the IO, JA can discern no prejudice or unfairness from the applicant not having been interviewed. Nor can JA discern any other action by the IO that violated the due process rights of the applicant, who again was not the subject of the investigation. JA reviewed all the evidence in the case file, to include the ROI, the applicant's statement in response to the LOR, and the material and arguments he has made as part of his application to the Board. A preponderance of that evidence supports the allegation contained in the LOR, as well as the first and fifth allegations substantiated by the IO. The bulk of that evidence comes from the e-mails exchanged between the applicant and the FSS/CC, which clearly portray a relationship that went beyond a normal friendship. In particular, the email from the applicant dated 25 July 2012, which explains that having sex with his wife is "never as good as with you...I want to feel your body close to mine again." The only reasonable inference that can be drawn from this statement is that the applicant was talking about a sexual relationship with the FSS/CC. The applicant attempts to counter the evidence of a sexual relationship by first including evidence of medical treatment he was receiving that could have caused him to have difficulty with sex and a diminished sex drive, and medical difficulties that caused lack of sleep and depression. While those circumstances may be true, they do not establish that applicant could not - or did not, have sex with the FSS/CC. The single most telling factor bearing on the likelihood that the applicant had a sexual, unprofessional relationship with the FSS/CC is the fact that he has never specifically denied it in his brief before this Board or in the statement in response to the LOR. In fact, he dances around any admission by arguing that other evidence makes it less likely that he had such a relationship. All of that information pales when it is not accompanied by a strong, outright denial. The bottom line is that the LOR is clearly supported by a preponderance of the available evidence, and the applicant's basic due process rights were protected when he was offered-and accepted- the opportunity to respond. That is all that is required in accordance with AFI 36-2907, Unfavorable Information File, paragraphs 3.4 and 3.5, and is the essence of this case. As to the applicant's arguments challenging the legal sufficiency of the OPR covering this period, JA concurs with the comprehensive advisory from DPSID, that no basis exists to substitute a new version of the challenged OPR, and that this allegation is without merit. Because the applicant has failed to prove any prejudicial error as to either the LOR or OPR, there is no basis to award SSB consideration for the two BPZ CSBs for promotion to the rank of colonel. The complete JA evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant provided separate rebuttal statements for each of the following advisory opinions: DPSIM recommends that the LOR/UIF not be removed on the grounds that proper procedures were followed. However, the PACAF commander disagreed. Once it was brought to his attention and following a careful review of his case and under the legal counsel of the PACAF/JA and the personnel advice of PACAF/Al on 5 March 2014, he removed the LOR/UIF via AF IMT 1058, Unfavorable Information File Action. The Board should disregard DPSOO’s recommendation and approve his request for SSB consideration for two BPZ boards. The primary reason he was not able to compete for promotion to the grade of colonel was the existence of an unjust LOR/UIF, which was later removed at the 4-star level. The Board should disregard DPSID’s recommendation and approve his request to amend or remove his OPR and to amend his PRFs. In addition, since submitting his application to the Board he received another non-promotable OPR, closeout date 30 April 2014, and will soon meet his IPZ MLR. JA’s opinion is misleading and misrepresents the facts of the case and ignores or dismisses relevant evidence. They can only "infer" a sexual relationship between the FSS/CC and himself based on one line in an email, ignoring all other exonerating evidence. JA is incorrect in saying he was not the subject of the CDI and not entitled to an interview. In his application he shows that the IO named him as a subject and the IO further stated he would share the results of the CDI with his chain of command for disposition. This made him a subject in spirit and in fact, which was corroborated by the 11WG/JA, who provided a legal review for the ROI. The FSS/CC further corroborates this in her letter to the Board. He did not "demand" to have legal counsel present or "demanded" to see the questions in advance. At no point did he waive his right to make a statement or make an interview contingent on these things. JA also wrongly contends that his response to the LOR sufficed as an interview. The truth is the CDI results were considered fact before he could respond to the accusations and he was already presumed guilty. He had already been publicly relieved of command, further presuming guilt before he could respond. JA further contends he could not prove that he did not have a sexual relationship, therefore it must have occurred. In doing so JA essentially says that he has to prove innocence to have his punishment removed when the government did not have to prove guilt to punish him. Based on this burden of proof everyone accused of wrongdoing would be punished. JA is well aware that proving the non-existence of anything is a scientific and legal impossibility. In addition to what he has already presented in response to the advisory opinions, he offers the following additional evidence to the Board regarding unfair treatment and injustice: He submitted a formal complaint that his commander committed a Personally Identifiable Information (PII) violation by willfully releasing his punishment to his accuser; a violation which was substantiated on investigation. This confirmed the illegal action and provided further evidence of his commander’s prejudice towards him. He submitted an Article 138 complaint on his commander to the 11AF/CC regarding his punishment. He submitted his complaint because his commander was personal friends with the convening authority and he would not receive a fair hearing. The 11 AF/CC ignored his concerns and forwarded the complaint to the convening authority, who subsequently denied his complaint. Because of the unique command structure at his assignment and the 11AF/CC’s inaction, he was unable to elevate his case beyond the 0- 6 level for nearly a year and a half, an injustice in itself. The first impartial look he received from a general officer resulted in his punishment being terminated. This, however, arrived too late to give him any chance at recovery. Since submitting his application to the Board he has received another non-promotable OPR, closeout date 30 April 2014, and will soon meet his IPZ MLR. His supervisor advised him this OPR will result in a non-promotable PRF. It is for this reason he also respectfully requests the Board consider amending or removing this OPR, amending his IPZ PRF, and forwarding him for IPZ SSB consideration. The applicant’s complete response, with attachments, is at Exhibit H. 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 to warrant removing his LOR/UIF, replacing the contested OPR, amending his PRFs or promotion consideration to the grade of colonel by the P0612B and P0613C CSBs. We note the applicant believes that the LOR/UIF he received is unjust; however, we do not find plausible evidence nor are we persuaded by his assertions that the administrative actions taken by his commander were inappropriate, or that the actions taken were precipitated by anything other than the applicant's own conduct. His contentions are duly noted; however, his case has undergone an exhaustive review by the Air Force Offices of Primary Responsibility (OPRs) and we did not find the evidence provided or the applicant's arguments sufficient to overcome their assessment of the case. Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice. Additionally, since submitting his application to the Board, the applicant states he received another non-promotable OPR with a closeout date 30 April 2014, and will soon meet an IPZ MLR. As such, he requests we consider amending or removing this OPR, amending his IPZ PRF, and forwarding him for IPZ SSB consideration. However, insufficient evidence that the contested OPR is not a true and accurate assessment of his performance and demonstrated potential during the specified time period or that the comments contained in the report were in error or contrary to the provisions of the governing instruction. In addition, since the applicant has not provided a copy of his IPZ PRF, we cannot determine whether this report is a true and accurate assessment of his performance. Finally, since no changes will be made to the record, favorable consideration of his request for SSB consideration to the grade of colonel is not warranted. In view of the above and in the absence of persuasive evidence to the contrary, we find no 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 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. The following members of the Board considered this application in Executive Session on 21 October 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR BC-2013- 04108 was considered: Exhibit A. DD Form 149, dated 26 August 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIM, dated 15 December 2013. Exhibit D. Letter, AFPC/DPSID, dated 12 June 2014. Exhibit E. Letter, AFPC/DPSOO, dated 30 June 2014. Exhibit F. Letter, AFPC/JA, dated 17 July 2014. Exhibit G. Letter, SAF/MRBR, dated 28 July 2014. Exhibit H. Letter, Applicant, dated 15 August 2014. Exhibit I. Commander Directed Investigation - WITHDRAWN.