DEPARTMENT OF THE AIR FORCE 

WASH I NGTO N, D.C. 

Office of the Assistant Secretary 
AFBCMR 96-02 10 1 

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: 

records of the Department of the Air Force relating to 

e corrected to show that: 

-- 

a.  The Senior Officer Unfavorable Information File (SOUIF), to include the Letter of 
Reprimand, dated 5 October 1994, the Report of Investigation, dated 30 September 1994, and all 
other attachments pertaining thereto, which was considered by the Calendar Year 1996 and 1997 
Brigadier General Promotion Boards, be, and hereby is, declared void and removed from his 
records. 

b.  The Promotion Recommendation Form considered by the Calendar Year 1996 

Brigadier General Promotion Board, and reflecting an overall promotion recommendation of "DO 
Not Promote," be, and hereby is, declared void and removed fiom his records. 

It is fbrther directed that his corrected record be considered for promotion to the grade of 

Brigadier General by a Special Selection Board (SSB) for the Calendar Year  1996 Brigadier 
General Promotion Board and, if not selected, he be considered by SSB for the Calendar Year 
1997 Brigadier General Promotion Board; and that the Promotion Recommendation Form 
considered by the Calendar Year 1995 Brigadier General Promotion Board and reflecting an 
overall promotion recommendation of "DO Not Promote" not be included in the records reviewed 
by the SSB for the Calendar Years 1996 and 1997 Brigadier General Promotion Boards. 

Director 
Air Force Review Boards Agency 

U 

AIR FORCE BOARD F ~ R  CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 
3 COUNSEL:  None 

DOCKET NUMBER:  96-02101 

 

-

*

HEARING DESIRED: YES 

APR  0 11998 

A  Letter  of  Reprimand  (LOR) and  a  Senior  Officer  Unkavorable 
Information File  (SOUIF) be  removed from his  records; that  his 
records be allowed to compete at a supplemental promotion board 
for brigadier  general;  and, once  selected, that  he  be  given  a 
line  number  commensurate  with  his  year  group  and  back  pay 
accrued. 

APPLICANT CONTENDS THAT: 

The  investigation  for  the, alleged  assault  (which lead  to  the 
aforementioned  actions  being  taken  against  him)  was  command 
influenced by  improper comments to the  investigators by  Colonel 
rred  to a s   BGen  ( s e l )  J---  B - - -  ) ,   the 
; that the investigator for the Ip"r"- 
ed a one-sided, flawed investigation 
which  falsely  portrayed  his  conduct  at  the  unit  party, 
incorrectly  reported  witness  statements  and  omitted  witness 
statements  in  his  defense;  that  the  result  was  a  tainted 
investigative report which stated the  faulty conclusions of  the 
commander  rather  than  the  truth;  and  that  this  was  then 
inadequately  questioned  by  his  counsel  and  his  commander, 
Brigadier Gefieral  (BGen) R- - -  C- - - ,  who subsequently gave him an 
LOR. 

In support of his application, applicant states that on 5 October 
1994, he received a LOR for allegedly grabbing a female airman on 
the buttocks.  This LOR would subsequently generate a SOUIF and a 
"DO Not Promotell Promotion Recommendation Form  (PRF) .  The final 
result was  that  his  llsterlingll record, up  to  the  point  of  the 
LOR, was not allowed to be considered for promotion to brigadier 
general  on  the  Calendar  Year  1995  ( C Y 9 5 )   Brigadier  General 
Promotion  Board.  During  the  past  year,  he  has  aggressively 
reexamined the  investigation report and  has  documented numerous 
inconsistencies  and  contradictions  contained  within. 
He  has 
personally  contacted  individuals  present  during  the  alleged 
incident, some who were interviewed and some who were not.  Their 
written  statements,  which  they  freely  provided  him,  paint  a 
completely different  picture  of  the  events of  the  evening  than 
does the  report.  In fact, one  witness confidently states that 

the  investigation was  command  influenced  by  the 
BGen 
(sei) J---  B--- .  The one-sided, flawed investigation supports the 
false conclusion of the commander rather than presents the truth. 

The  result  is  that  an  exceptional  USAF  officer, commander  and 
combat-proven leader was wrongly punished and denied promotion to 
brigadier general. 

I 

Prior to this  incident, he  had  established an extremely strong 
reputation and  record  as an exceptional officer, fighter pilot 
and  leader, both  in peacetime  and  at  war.  He  had  served  as 
Commander,  Fr$  Fighter  Squadron,  during  Operation  Desert 
Shield/Desert worm, successfully leading this outstanding unit, 
which  flew  1200  combat  sorties  in  every  major  campaign  and 
dropped eight million pounds of bombs without a loss of aircraft 
or  aviator.  A  little  more  than  a  year  later,  he  served  as 
Commander ,  -h 
Operat ions  Group ,-  Saudi ,  Arabia ,  where  he 
successfully planned and directed two days of  air strikes by  a 
joint force of  100 aircraft on targets in Iraq.  Again, without 
loss of life or aircraft.  From there  he went on to become the 
Commander, 
where  he 
oversaw  two  F-15  squadron  conversions  and  stood-up  an  F-15C 
squadron.  He was assigned to Headquarters, 
as Director of 
Plans and  Programs; one of  two promotable  to brigadier general 
jobs. 
Component  Commander  at  Operation  Provide  Comfort, 
Turkey.  His mission, which he accomplished, was to 
-, 
llclean-upll the flying operation after the tragic Black Hawk Shoot 
Down.  It was during this assignment that he was alleged to have 
committed  the  assault. 
During  the  last  two  years,  as  the 
Plans and  Programs, his  organization has  set 
Director of 
new  llhighsll in  increased  budget  support  and  efficiently  and 
effectively managed  the  stabilization of USAF  forces in 
Clearly, these  are  the  accomplishments of  someone on  track  for 
leadership  and 
promotion 
and 
responsibility. 

Subsequently, he was  sent on temporary duty as 

positions  of 

Operations  Group, f ,

 

increased 

In conclusion, the applicant states that the attached supporting 
documentation was provided to SAF/IG in the form of a requested 
Congressional  Investigation, 1 July 1996.  The investigation is 
currently on-going.  One major reason it has taken him this long 
to  file  the  SAF/IG  investigation request  is  that  it  took  over 
nine  months  for  SAF/IGQ  to  provide  him  with  a  readable  but 
partial  copy  of  the 
Security  Police  Investigation Report 
from which to conduct his investigation.  This unnecessary delay 
will  result in his missing another opportunity for promotion on 
the  CY96  Brigadier  General  Promotion Board.  At  this point, he 
has exhausted all other administrative remedies.  As you will see 
in  your  review  of  his  supporting  documents,  there  are  still 
questions  which  need  to  be  answered  by  witnesses  of  this 
incident.  This  questioning  is  beyond  his  purview.  He  would 
expect  the  IG  to  conduct  this  questioning;  hence,  it  will  be 
available for your use.  He respectfully requests your review and 
investigation into this matter.  He is confident and so are other 

2 

AFBCMR 96-02 10 1 

witnesses, that he did not commit this alleged assault.  He looks 
forward to meeting with each of you, answering your questions and 
correcting this injustice. 

Applicant's  complete  statement,  and  documentary  evidence 
submitted in support of his application, is included as Exhibit 
A, with Attachments 1 through 42. 

STATEMENT OF FACTS: 

Applicant  completed the  Reserve  Officers  Training Program as  a 
Distinguished Graduate and  entered on active duty  26  September 
1971  as  a  second  lieutenant.  He  was  progressively  promoted 
through  the  ranks  to  the  Regular  Air  Force  grade  of  colonel, 
effective and with date of rank of 1 December 1-992. 

In June 1994, t 
(PCS) orders to 
Programs. 

received permanent change of  station 
to serve as the Director of Plans and 
reporting  date,  the  appli 
Incirlik AFB, Turkey, to become  the  first 
Component  Commander  m C C )  for  Operation 

Comfort  following  the  shoot-down  of  the  two  Black  Hawk 
helicopters by USAF  fighter jets. 
On  the  evening  of  16  September  1994,  applicant  attended  a 
Combined  Task  Force  (CTF) party  at  an  outdoor  covered  picnic 
pavilion  at  Arkadas  Park  across  the  street  from  the  deployed 
living quarters.  The party was attended by an estimated 150 to 
300 individuals (officers and enlisted members).  At  around 2330 
hours that night the applicant allegedly came up behind a female 
airman (hereinafter referred to as SRA C - - - ) ,   who at the time was 
assigned  to  the 
,  Tinker  AFB,  OK,  and  grabbed  her 
buttocks  with  both  hands. 
SRA  C---  immediately reported  the 
m, Rand  to Lt  Col K---  U--- ,  the Deployed Director of 
incident to Lt Col P---  M---,  the Deployed Detachment Commander, 
On 19 September 1994, C o l   (BGen (sel)) J- 
Operations, 
contacted  the 
_ -   B--- I t  
Security  Police  and 
of the incident by Lt C o l   M- 
reported be 
to  the  report  of  the  investigation  (ROI) by  the 
Police, SRA  C- - -  s allegations were substantiated  ( 
-  Privileged Information) . 
On 5 October 1994, the applicant received an LOR  from BGen R--- 
c- - - ,  CTF  Commanding  General,  Operation  Provide  Comfort,  at 
Incirlik AB, Turkey, for acting in a drunk and disorderly manner 
before  subordinates  and  assaulting  SRA  C---. 
The  applicant 
acknowledged receipt of the LOR  on that same date and elected not 
to comment on the allegations and also elected not to attach any 
statements or documents to be  considered  in determining whether 
the LOR would be placed  in an Unfavorable Information File  (See 
On  8  October  1994, BGen  R - - -   C---  reported  the 
Exhibit  C)  . 
incident to SAF/IGQ as required by AFI  90-301.  He recommended a 

3 

AFBCMR 96-02 10 1 

Senior  Officer  Unfavorable  Information  File  (SOUIF)  not  be 
established  (See E x h i b i t   0 ) .   On 17 July 1995, General J---  J---, 
Commander , 
sent a letter to SAF/IGQ concurring with BGen 
c--- I s   recommendation  that  an  SOUIF  not  be  established  (See 
E x h i b i t   E ) .  
On 22 August 1995, SAF/IGQ sent the applicant notice that the LOR 
and  supporting documentation had  to be  maintained  for possible  ' 
inclusion  in  a  SOUIF  and  afforded  the  applicant  another 
opportunity to comment on the incident.  On 5 September 1995, the 
applicant  responded  by  saying  that  ?..The  only  additional 
information I would like to provide is how sorry I am that I was 
involved in this incident.  I further regret any wrong I may have 
caused to the  airman  invo1ved.I'  On  11  September 1995, SAF/IGQ 
sent another letter to the  applicant  informing him  that he  had 
yet another opportunity to  submit comments to the  Secretary of 
the Air Force to aid her in deciding-whether the derogatory data 
in his  file would be  submitted to an upcoming promotion board. 
The applicant again submitted his  comments to the  Secretary of 
the  Air  Force,  this  time  stating  that  he  did  not  recall  the 
specific  incident  with  SRA  C---.  (See  E x h i b i t   A  for  these 
Notwithstanding  the  applicant's  comments,  the 
documents.) 
Secretary  of  the  Air  Force  decided  to  provide  an  Adverse 
Information Summary of the incident to the CY95 Brigadier General 
Promotion Board, which convened on 2 6   September 1995.  He also 
received a  "DO NOT PROMOTE'THIS BOARDII  PRF from LGen E---  P---, 
the  Vice  Commander, 
and 
the 
Applicant 
a p p l i c a n t ' s   t o p   OPR  a r e   i n c l u d e d   a s   Exhibits  F  &  G . )  
was not selected f o r   promotion to brigadier general. 
On 21 June 1996, the applicant forwarded a letter to the SAF/IG, 
which  included  the  21-page  IIReportl!  he  provides  in  Exhibit  A, 
requesting, in part, that  the  IG conduct  its  own  investigation 
into the matter. 

( C o p i k s   of  t h i s   PRF 

Applicant  was  considered  for  promotion  again  by  the  CY96 
Brigadier General  Board, which  convened on 20 August  1996, but 
was  not  selected.  The  Secretary of  the  Air  Force  decided  to 
provide  an Adverse  Information Summary of  the  incident to  this 
board.  The applicant also received a "DO NOT PROMOTE THIS BOARD" 
PRF from LGen E---  P--- ,  Vice Commander, 
( C o p i e s   of  t h i s  
PRF and  the  a p p l i c a n t ' s   t o p   OPR  a r e   i n c l u d e d   a s   Exhibits  H  6;  I .  ) 
Department  of  Defense  (DoD)  Instruction  1320.4  provides  for 
disclosure of adverse information on general officer nominees to 
OSD,  the  White  House,  and  the  Senate.  It  also  requires  the 
Secretary of the Military Department concerned to provide to the 
Office  of  the Assistant  Secretary of  Defense  (FMP) all  adverse 
information  since  the  officer's  last  Senate  confirmation. 
Additionally,  for  promotion  to  0-7,  the  Secretary  "...shall 
review  all  adverse  information during  the  last  10  years  of  an 
officer's career  to  identify trends."  SAF/GC  (under authority 
delegated by  the Secretary of  the Air  Force) determines whether 

4 

AFBCMR 96-02 10 1 

to send adverse information and SOUIF summaries-to the brigadier 
general selection board  (See Exhibit I ) .  

Pursuant  to  a  request  by  the  AFBCMR  Staff,  SAF/IGQ  provided 
additional  information.  However,  since  this  information  is 
privileged,  it  cannot  be  released  to  the  applicant 
(See 
Exhibit T -  Privileged Information). 
The applicant was considered, but not selected, for promotion by 
the  CY97  Brigadier  General  Board, which  convened on  19  August 
1996. An  SOUIF on the incident was provided to this board also. 
The top OPR reviewed by the promotion board had been rated by the 
Vice  Commander of 
The applicant received a  llPROMOTE1f PRF 
from the Vice Commander of Air Combat Command at Langley AFB, VA. 
(Copies of  this  PRF  and  the applicant's  top  OPR  are  at  Exhibit 
u. ) 

I 

AIR FORCE EVALUATION: 

AFPC/JA states that applicant has not  shown there was any legal 
error  in  the  manner  in  which  this  case  was  processed.  The 
documentation in the case file submitted by the applicant shows 
he  was  afforded  due  process  at  every  step  in  the  proceedings. 
Specifically,  while  the  incident  was  being  investigated,  the 
applicant  sought  the advice  of  the Area  Defense Counsel  (ADC). 
According to the applicant, he initially spent over an hour with 
the ADC discussing this incident.  He also periodically kept  in 
touch with  the  ADC  as  the  investigation progressed.  When  the 
investigation was  complete,  he  reviewed  the  entire  Report  of 
Investigation (ROI) as well  as the statements with his ADC.  At 
the time he was issued the LOR, he was given the opportunity to 
respond to the allegations against him and submit any statements 
or documents  he wished to be considered.  He elected not to make 
any  statements  or  to  otherwise  respond  to  the  allegations 
contained  in  the  LOR. 
He  was  also  afforded  two  other 
opportunities by SAF/IGQ to provide his  "side of the story.Il  He 
took  advantage  of  both  of  those  opportunities.  In  the  first 
instance, he apologized for his involvement in the incident.  In 
the second  instance, he  merely  stated that he  had  no memory  of 
the  assault  on  the  female  airman.  Interestingly,  in  neither 
instance does he deny he acted in a drunk and disorderly manner 
before  subordinates,  nor  does  he  deny  assaulting  the  female 
airman.  To  his  credit,  the  applicant  did  apologize  for  his 
conduct and the incident. 

Applicant now claims he did not fully appreciate the significance 
an LOR  and a SOUIF would have on his promotion eligibility.  He 
claims his  legal  counsel  was  ineffective because  he  failed  to 
fully and properly advise him prior to his receiving the LOR.  H e  
also claims his counsel only partially reviewed the ROI prior to 
advising  him  on  what  needed  to  be  done  in  preparing  a  p r o p e r  
rebuttal  t o   the  LOR,  and  he  claims  his  counsel  never  cross- 

5 

AFBCMR 96-02 10 1 

examined any of the witnesses against him or otherwise conducted 
his own investigation into the false allegations. 

Initially, it  is noted that  "ineffective assistance of  counsel" 
is  a  Sixth  Amendment  criminal  law  concept,  not  relevant  in 
administrative or civil proceedings unless a respondent's liberty 
is at stake.  Even where the argument is considered, there is a 
strong presumption in favor of effectiveness. 

It is believed that once applicant had been afforded counsel, he 
was entitled to competent representation.  Since the application 
contains only applicant's version of  the  facts, they discussed 
applicant's  allegations  with  his  former  military  counsel. 
Applicant's counsel related he was provided with an advance copy 
of  the  security  police  investigation  report  and  the  witness 
statements.  He stated he thoroughly reviewed the entire report 
and all of  the  statements, and he  spoke with-the witnesses who 
were  not  represented  by  counsel,  including  the  victim. 
He 
recalled that the Chief Circuit Defense Counsel  (CCDC) f o r  
was particularly interested in being kept abreast of all senior 
officer cases and, as such, he spoke with her several times each 
week  regarding  this  case, and  she provided  him  with  a  lot  of 
advice.  He stated the applicant told him he had had very little 
sleep and nothing to eat before the party.  Applicant also told 
counsel he had been drinking alcohol that night but had no memory 
of the incident with the female airman.  He advised the applicant 
not to apologize to the victim because of the appearance it would 
give of his guilt, but disputes that it was the applicant who had 
him  call  the  CCDC  to  get  a  second  opinion  regarding  this. 
Counsel stated he had already been in consultation with the CCDC 
when  he  advised  the  applicant  not  to  apologize.  Counsel also 
admitted he advised the applicant not to give a written statement 
to  the  Security  Police  Investigators,  not  because  of  their 
interrogation  techniques,  but  rather  because  applicant  had 
already told BGen C--- his side of the story and, in his opinion, 
the applicant had nothing more to gain by making a statement to 
the  Security. Police.  Counsel  specifically denied  he  failed to 
apprise  the  applicant  of  the  consequences  of  the  LOR  and 
recounted how he had gone over to the legal office and reviewed 
the  Air  Force  Regulation  concerning  the  mandatory  reporting 
requirements to  SAF/IGQ  for  substantiated misconduct  involving 
senior officers.  Counsel  specifically remembers counseling the 
applicant regarding this reporting requirement and of his rights 
to submit matters in his behalf.  He also recalled discussing the 
fact that an LOR  would have a negative impact on the applicant's 
career. 

Given the foregoing, it is believed applicant was competently and 
ably  represented  under  the  circumstances. 
Applicant's 
allegations  against  his  legal  counsel  are  regrettable,  but 
clearly  indicative  of  an  individual  who  refuses  to  accept 
responsibility for his actions or be  accountable for his conduct 
and who insists on blaming everyone else, including "the system" 
and his lawyer for his lapse. 

6 

AFBCMR 96-02 10 1 

The bottom  line- - -the  applicant has  failed to present  credible 
evidence to support his contention there was legal error in this 
case, and  they find that  the  law and Air Force procedures were 
followed in processing this case. 

AFPC/JA  further states that  there was  no  injustice.  Applicant  , 
has now decided to attempt to readjudicate the factual basis for 
He has attached a number of statements  (some sworn and 
his LOR. 
some unsworn) which he claims casts doubt on the credibility of 
the  female  airman  who  made  the  allegations  against  him  and 
provide theories and reasons behind the malevolent motivation of 
the  female  airman  to  fabricate  the  allegations  against  the 
applicant. 
Interestingly,  none  of  the  statements  directly 
refutes anything the female airman has said happened to her the 
evening of the party.  Many of the statements simply state that 
the person making  the  statement did-not observe the  incident  - 
not that the incident did not occur.  Reference is made that one 
of the eyewitnesses to the incident has now recanted her earlier 
statement, but  the  recanted  statement  itself  is  nowhere  to  be 
found.  Many  of  the  statements  give  opinions  on  whether  the 
applicant  and/or  the  other  witnesses  to  the  incident  were 
intoxicated that evening and then go on to expound upon whether 
that person was or was not impaired.  Even if all the statements 
and  affidavits are  to be  believed, it  does not  alter  the  fact 
that  the  female airman believed  she had  been  assaulted by  the 
applicant,  and  she  immediately  tried  to  report  it  to  her 
commander. 
None  of  the  statements  alters  that  fact. 
Furthermore,  this  is  not  a  situation  where  the  misconduct  is 
alleged to have taken place at a time or in a place where there 
were  no  witnesses.  We  are  asked  by  the  applicant  to  simply 
ignore the fact that his conduct was-  observed and commented upon 
by multiple  eyewitnesses to the incident.  It  is true that some 
of  the  eyewitnesses have  better  memories  than  others, but  the 
basic overarching fundamental facts of  what  happened that night 
have not been refuted by any of the evidence presented with this 
application.' What seems to be the most telling piece of evidence 
in the application is the repeated mention by the applicant that 
he wanted to apologize to the airman.  That kind of response is 
entirely  inconsistent  with  innocence.  It  is  safe  to  say  that 
outrage would be  a more  typical response  from  a  senior officer 
wrongfully accused of sexual harassment in today's Air Force. 

The  applicant  also  claims  the  investigation  was  flawed  and 
unlawfully influenced by the Wing Commander at  Incirlik, Turkey. 
In  support  of  his  claim,  the  applicant  has  attached  two 
statements from Lt  Col  P---  M--- .  Lt  Col M---  relates that he 
had  been  told  by  the 
Security  Police  Commander  that, on 

assigning the case to e SPS NCO Security Police Investigators, 

the  Wing  Commander  [BGen  (sel)  J---  B---]  had  labeled  the 
applicant a  "flaming assholell  to his operations officer and t h a t  
the implication was that the applicant was known for this type of 
conduct.  L t   Col  M---  offers  his  opinion  that  cases  involving 
serious crimes and  felonies such as alleged sexual assaults are 

7 

AFBCMR 96-02 10 1 

I 

normally handled by  the Office  of  Special  Investigations  (OSI) 
who  have  greater training but  are  outside  the  normal  chain of 
command  and  thus  free  of  command  influence. 
The  applicant 
believes  that  the Wing  Commander  [BGen  (sel) B---) coveted the 
applicant's control over the flying mission and  "was out to get 
him."  Contrary to the assertions he makes in his application, 
the  evidence he  alludes  to  (if true) merely  restates the Wing 
Commander's personal  appraisal of the applicant's character and 
nothing more.  There has been no proof  that  the Wing Commander 
told  his  investigators to  "get" the  applicant  or  to  fabricate 
their investigation in any way.  Furthermore, there is nothing in 
this  record  which  would  indicate  that  the  Security  Police 
Investigators were incompetent.  It is an axiomatic principle of 
administrative law that  federal officials charged with official 
duties are presumed to carry out those responsibilities according 
to  law;  L e . ,  a  presumption  of  regularity, in  the  absence  of 
proof to the contrary. 
Applicant's  evidence  in  support  of  his  claim  of  an  injustice 
consists  almost  entirely  of  his  own  self-serving  unsworn 
statements and  ''memos for record."  He  repeatedly  accuses  the 
witnesses  of  being  biased,  but  has  supplied  the  Board  no 
evidence ,  other  than  his  personal  opinion,  that  their  sworn 
statements are inaccurate.  The affidavits he does attach state 
the obvious -  that the indi,vidual did not see the sexual assault 
occur, not that the incident did not happen.  Absent legal error, 
personal  bias  or  animosity  alone  does  not  void  a  personnel 
action.  Applicant  must  do  more  than  "merely  allege  that  Can 
investigation]  is inaccurate, incomplete, or subjective in some 
sense; in order to invoke a court  [or BCMR] intervention, he must 
show violation of  a specific objective requirement of a statute 
or regulation or misstatement of a significant hard fact.  Even 
when reasonable minds could reach different conclusions from the 
evidence,  [the BCMR]  should not substitute its judgment for that 
of  the decision-maker absent such a showing.  Applicant has not 
made such a showing. 

- 

d 

In conclusion, AFPC/JA  states that  what  should be  added to all 
that has been said up to this point  is that sexual assault is a 
serious  criminal  offense. 
The  applicant  could  have  been 
prosecuted for his misconduct under the UCMJ.  He could have been 
tried by General Court-Martial or punished under Article 15.  His 
llstellarll career was obviously considered when the decision was 
made  only to reprimand him.  They find it  disingenuous  f o r   the 
applicant  to come before  the AFBCMR  to ask  that  it  forgive his 
misconduct  and erase the  incident on the basis of  his  llstellarll 
Was  the  LOR  and  the  SOUIF  too  harsh  a 
Air  Force  career. 
punishment  in this case?  They think not.  In this context, an 
"injustice,  when not  also legal error as contemplated under 10 
Sec.  1552(a),  has  been  described  by  the  courts  as 
U . S . C .  
' I . .   .treatment by  the military authorities that  shocks the  sense 
of  justice.I1  There is nothing about the processing of this case 
by  military authorities which  shocks the  sense of  justice.  To 
the  contrary, the evidence would  suggest that  the applicant was 

8 

AFBCMR 96-02 10 1 

fortunate to have escaped the incident without-more  significant 
disciplinary action having been taken. 

A complete copy of the evaluation is at Exhibit J. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant states, in part, that he has chosen not to go into debt 
to  hire  an  attorney,  but  has  attempted  to  represent  himself 
because  he  is  innocent. 
He  now  sees  that  anyone  without 
financial  resources  or  legal  training  is  at  a  serious 
disadvantage  when  arguing  against  a  staff  judge  advocate's 
opinion, liberally sprinkled with legal precedents.  He now sees 
that the role of the staff judge advocate's office is to hand the 
AFBCMR  an outcome, worded  as  a  judicial opinion.  He 'believed 
that the AFBCMR was here to see that justice was served and that 
it was open to all, from airman up.  No airman could fight the 
intimidation of  a  staff judge advocate's influence.  He  cannot 
word his request in legal jargon.  He is not located at Randolph 
AFB, Texas, nor will he probably be known to you.  He can only 
ask again that you investigate this case, fairly and impartially 
and to talk to people who were involved, and who have served with 
him.  He knows that a sexual harassment charge is the current DOD 
"witch hunt" and that he could more easily argue his innocence of 
murder.  Despite the odds against him, he maintains that, (1) he 
did  not  sexually  harass  SRA  C---,  (2) the  investigation  was 
influenced,  (3) key evidence was  not  available  for BGen  C---'s 
LOR  decision,  ( 4 )   legal  counsel  was  lacking,  and  (5)  senior 
officials seriously mishandled  his  case.  His  record  should be 
cleared,  the  LOR  removed,  his  destroyed  career  restored  and 
compensated, and  those who  are  guilty of  the  improper handling 
should be punished. 

He has been punished  for something he  did not  do.  He  did not 
lIgrabll SRA  G---.  The  author of  the  advisory opinion used  his 
apology as an admission of guilt.  An  apology expresses regret, 
concern, and compassion for another person.  He has held several 
command positions and if you investigate his record and talk to 
those  he  has  commanded,  you  will  find  that  he  takes  very 
seriously  the  leadership  role.  He  looks  out  for  the  people 
assigned to his units and he does not ignore or attempt to cover 
up  allegations  (paragraph 78).  As  an officer  and  a gentleman, 
his first inclination was to say he was sorry you feel you have 
suffered  (paragraph 11).  If  you  read  the  report, his  initial 
response was to want  to talk to SRA  C---  (paragraph 8 ) .   He has 
found that talking can defuse a bad situation. 

He would still like to meet with SRA  C---.  What  has caused her 
to be  so angry with the Air Force that she wanted  to  "get even" 
with  the Air  Force and  llto take out  an officer"  (paragraphs 7 ,  
10, 26, 4 4 ,   7 4 ,   7 6 ,   89, 9 0 ,   9 4 ,   9 6 ,   98, 8 9 ,   9 0 ,  9 4 )   by  making 
such an allegation? 

9 

AFBCMR 96-02 10 1 

He should have measured every word in light of legal manipulation 
but  he  has  never  hesitated  to  take  the  high  road  even  if  it 
involved  saying  he  was  sorry  you  have  made  this  accusation 
against him, but  he did not  Ilgrabll  you.  God help us  if every 
leader in the Air Force is following the implication of the staff 
judge  advocate  and  measuring  every  word  in  order  to  protect 
his/her career and not become involved. 

He  certainly  did  not  ask  to  be  involved,  but  SRA  C---Is 
accusation involved him.  He will never have any memory of this 
incident because he did not  do it.  She may have been touched, 
but it was not by him.  He knows exactly the path he took out of 
the  pavilion  and  he  knows  it  was  crowded  and  he  knows  it  was 
difficult  to  move.  He  remembers his  movements  from  start  to 
finish and he did not grab SRA  C---  (paragraphs 30, 42,-  55, 66 , 
8 5 - 8 8 ,   91-93, 9 5 ,   9 7 ) .  
His witnesses did not see him touch SRA C---  either.  The author 
of  the advisor  opinion says that because his witnesses say, 111 
the possibility that he did touch her.  This is another example 
of  twisting  of  the  words  of  ordinary  DOD  personnel  who  are 
untrained  in  the  way  to  express  the  truth  in  a  way  that  an 
attorney  will  not  attack.,  He  should  have  brought  all  his 
witnesses  in,  hired  a  lawyer  and  coached  them  on  how  to 
effectively state the truth. 

did not see 6 touch SRA  C - - - , I 1   the door is left open for 

- 

Over this last year he talked to some of his witnesses and they 
told him and they wrote that they watched him  leave.  When they 
said they did not see him touch SRA  C---  they meant  they saw him 
touch no one on his way out.  He asked them to tell the truth and 
they did.  He  encourages you  to  talk  to his witnesses and not 
accept  the  manipulation  of  words  by  the  staff  judge  advocate. 
That  is  not  an  investigation, but  accepting  the  staff  judge 
advocateIs foregone conclusion. 

4 

How  could  the  staff  judge  advocate, an  officer  of  the  court, 
ignore  the  evidence  that  a  commander,  BGen  (sel) J---  B--- 
instructed  his  investigators to  Ilreally  get" him?  Lessons  in 
leadership  teach  that  the  only  instruction  you  give  is 
investigate, nothing more.  These security police  expressed the 
opinion  that  they  had  a  really  hot  case  and  that  they  were 
supposed  to  find  him  guilty. 
Has  anyone  looked  into  these 
allegations?  The  staff  judge  advocate  cites  a  legal  case  to 
support  the  claim  that  investigators  are  Ifpresumed to  carry 
out . . .  responsibilities  according  to  law. II 
The  key  word  is 
llpresumedll and  the  staff  judge  advocate  is  making  a  leap  of 
presumption  in  the  favor  of  investigators when  he  has  offered 
statements  that  indicate  that  there  is  doubt  that  these 
investigators  carried  out  those  responsibilities  without 
influence  (paragraphs 26-28, 54, 64, 6 5 ) .   BGen  (sel) B ---  was 
the  commander who  would  be  signing the  investigators' O E R s   and 
He was not  their commander and  could never reward  them, 
O P R s .  

10 

AFBCMR 96-02 10 1 

I 

but  BGen  (sel) B--- held  their careers in his -hand and  he  had 
made it clear the conclusion he wanted. 

11 

C

Applicant  continues  by  asking  why  would  he  bring  up  these 
allegations, serious as they are, if he  did not  already have a 
first-hand knowledge of  BGen  (sel) B---Is -style  of  leadership. 
[BGen (sel) B---]  is ambitious and did not like his beina in his 
territory.  [BGen  (sel) B---]  just  replaced him  as 
at 
Ramstein  and  commented that  he  had  to  "once aqain 
BGen  (sel) B---  was  open  in  trying  to  overruie  what  he  (the 
applicant) did  as the W
 in charge of  the  flying operation. 
[BGen  (sel) B---] wanted  his position and that was apparent to 
others.  He knows BGen  (sel) B---  and he knows how he felt about 
him  (paragraph 4 )  . 
(sel) B---  had followed him as Operations 
in I$IIIIT1(c  and he was extremely unpopular 
Group Commander in 
and more interested in making  [himself] look good than in. looking 
That  is  a -clear  difference  in  their 
out  for  his  people. 
leadership styles.  If  [the author of the advisory opinion] were 
a  fighter  pilot,  Wing  Commander,  he  would  understand  what  a 
bitter pill BGen  (sel) B---  had to swallow by yet again having to 
watch him be the popular, effective leader, in charge of planes, 
while  he  was  in  charge  of  roads  and  grounds. 
Again,  he 
encourages you  to ask  those who  have  had  to  follow, not  lead, 
both of  them  (there are numerous examples available).  You will 
find that BGen  (sel) B---  does not generally endear himself and 
he would let his bitterness cause him to improperly influence an 
investigation.  It is not an accusation he makes  lightly and he 
hopes  it  is  not  passed  over  lightly.  In  fact,  in  the  last 
several weeks he  has  been  able  to make  contact  with  BGen  (now 
retired) R---  C--- .  [BGen C---'SI  own words to him when they went 
over the  incident were  IrB- - -  saw you as a threat/competitor  to 
his  job as  commander as well  as  a -future promotion  and  didn't 
like it/ 

During a recent visit to St. Louis, he had the chance to further 
discuss  this  incident  with  BGen  C---  and  to  provide  him  with 
additional documentation he requested.  It is interesting to note 
that  in July 1996, prior to his retirement,  [ [BGen C---1 called 
him with suggestions on how to get this Ifthrown out." [BGen C - - - I  
recommended  this  process  and  the  Article  138  which  he  has 
pursued.  The  SAF/IG  is  currently  reviewing  the  Article  138 
request. He provided BGen C---  with the statements from Lt  Cols 
M---  and  D---, Captain  S---  and  Ms.  H--- . 
[BGen C---I showed 
great interest in Lt Col M---Is statements.  In fact, [BGen C - - - ]  
he stated that this information could have changed his decision. 
As he  (the applicant) previously stated in his earlier letter, Lt 
Col  M---  had  attempted  to  get  this  data  to  him  prior  to  the 
AWACS  departure  to  Tinker  AFB.  He  (the applicant)  had  also 
questioned his receipt.  He does not know how  [BGen C---I missed 
it but  it was obvious from his comments and expressions that  it 
would  have  made  a  positive  impact  in  his  favor. 
[BGen C---l 
further  stated,  "That in  28  years  of  active  duty, giving  [the 
applicant] the LOR was  the  toughest thing he  had  done  -  and he 
still isn't sure he made the right decision".  He asked BGen C--- 

1 1  

AFBCMR 96-02 10 I 

to send a letter in his behalf for removal of the LOR or at least 
support  further questioning.  Whether  or not  he  does  is to be 
seen.  Regardless,  doesn't  this  behavior  beg  some  more 
questioning? 

He still contends that Captain D---  [applicant's ADC at the time] 
should  have  been  more  aggressive  in  the  questioning  of  the 
witnesses.  As stated before, he and his wife needed'over  30 days 
to go through the report and pick it apart.  While  he recognizes 
that this is  [Captain D---'s] job, he thinks the short time spent 
as well  as  [Captain D---'s] failure to  recognize the 
condition of his client and the requirement to lead him through 
the  critical end  game  investigation/reinvestigation  resulted in 
their failure to get at the truth. 

I 

He  did  seek  a  legal  opinion  in  the  spring  of  1996  from  an 
attorney who believed in him, Lt Col-K--- K--- , -  the CCDC-that the 
author of  [the advisory opinion] and Captain D---  refer to in the 
opinion.  Lt Col K---  was professional enough to really listen to 
him, read his rough draft report, look over his evidence and meet 
with him  and his wife.  She listened to them, asked questions, 
made comments, and took the report home.  Lt Col K---  offered her 
written  and  verbal  suggestions  as  to  how  to  strengthen  his 
arguments.  If Captain D---  was in such close contact with Lt Col 
K- - - ,  then  why,  when  she ,met with  him  and  his  wife,  did  she 
express  complete surprise upon  finding out  that  BGen C---, his 
commander, was at the party for all but the last few moments that 
he was there?  He wondered then and wonders now why Captain D--- 
and  the  investigators failed to question BGen C---.  They were 
together, talking, eating, and drinking for all but the last few 
minutes  when  [BGen C---I left  and  the  incident  was  alleged  to 
have  taken place.  If he were  acting in a drunk and disorderly 
fashion  why  did  the  commander  not  stop  this  immediately 
[paragraphs 8, 55, 60, 611 ?  How did Captain D---, who claims to 
have interviewed all the witnesses and talked to BGen C---  miss 
this  key  witness  to  his  behavior?  Lt  Col  K---  was  clearly 
stunned that# BGen C---  had not been questioned and that she did 
not  know of  his attendance or see his  name  as a member of  the 
party anywhere in the investigation (paragraphs 3 1 / 3 2 ) .   She said 
he  definitely should have been questioned and this angle should 
be  further examined.  Had Captain D---  really kept in the close 
contact with Lt Col K---  as he contends why did he fail to give 
her all the pertinent information necessary to the investigation? 

It is interesting that the only investigation that the author of 
the advisory did was to talk  to his  attorney and to defend his 
conduct.  It  would  seem  that  all  his  other allegations do  not 
require asking any questions of anyone.  Questioning of a fellow 
attorney caused the author of the advisory to ask questions, but 
never  to  ask  them  of  him.  Lt  Col  K---  died  this  summer but 
Captain D---  will  have  to  call  both  him  and  his  wife  liars  in 
order to refute what  she discussed with them and what  she found 
to be wrong with the handling of his case. 

12 

AFBCMR 96-02 10 1 

Lt  C o l   K---  cautioned  him  and  his  wife  that  even  though  the 
senior leadership had inappropriately handled some aspects of his 
case, he  should proceed  cautiously because  as  she  said,  "they 
will circle the wagons against ~ 0 u . I ~  He had to take that chance, 
because to leave out the part played by senior officers would be 
to cover-up the truth. 

His report  covers not  only BGen  (sel) B---  and  BGen  C - - - ,   but  ' 
also Brigadier General S--- J---  (paragraphs 25, 26,  28,  2 9 )   and 
General  H---  (paragraphs  2,  3,  16,  17).  The  impact  of  his 
cooperation with the GAO and going forward with information about 
the cover-up of the Black Hawk shoot-down are issues as well, but 
they  will  be  adjudicated,  if  not  by  the  Senate  investigative 
committee, then by the investigative press and he can only state 
that it has been made clear that the Air Force is trying to block 
any investigation.  His proof of Colonel D---  R--- I  s  dereliction 
and the cover-up by the Air Force are probably beyond t'he scope 
of the AFBCMR, but definitely pertinent to understanding how much 
easier it  is to cover-up dereliction of duty leading to murder 
(paragraphs 3,  20) than it  is to prove  innocence when the topic 
is sexual harassment. 

handling  of  the  SOUIF  [sic] . I 1  

"What is not beyond  the  scope of  the Board  is what Lt Col K--- 
pointed out to him was clearly contrary to Air Force policy was 
General 
How  can  a 
commander  wait  one  year, 'never counsel  with  the  accused,  and 
allow an additional punishment to be incurred (paragraphs 15/16]? 
Then  General 
further  ignored  his  responsibilities  by 
telling him that he would call his wife and he would question and 
speak against the SOUIF.  He has never called him and his wife, 
nor spoken in his behalf.  Commanders at a lower level would be 
held accountable.  Where is the leadership and the accountability 
(paragraph 22) ? 
[The  author  of  the  advisory  opinion]  is  a  stickler  for 
accountability and he  should have  noticed  that  the  only person 
who  has taken any responsibility is him.  Captain D---  and  the 
author  of  the  advisory  maintain  that  Captain  D---  has  no 
responsibility  if  he  poorly  represents  a  client.  He  is  not 
familiar with the oath  [Captain D - - - 1   took as an Air Force legal 
counsel, but  he does know the one he  took.  He took an oath at 
Virginia  Military  Institute, to neither  lie, cheat, nor  steal, 
nor  tolerate  it  in others.  It  is  one  of  the  only  honor  code 
systems in the nation which has not been wracked with scandals. 
He  adhered to  it  then and he  made  that  code a part  of  his  Air 
Force commitment.  The Air  Force  had  lost  faith in him  and  he 
offered to his commanding officer to retire or resign  (paragraph 
15).  How much more responsibility can an officer take  (paragraph 
19)?  Cover up, lie, and get  a good  lawyer are the  current Air 
Force tactics, but he refused to stoop to the new norm. 

In  conclusion,  applicant  states  that  he  appeals  to  you,  the 
members  of  the  Board,  to  investigate  this  false  accusation, 
tainted investigation, and improper handling by legal counsel and 

13 

AFBCMR 96-02 10 1 

senior officers.  The minimal dollar cost for an investigator's 
short TDY to get the truth will be well worth the investment.  He 
welcomes  the  opportunity  to  meet  with  you  and  urges  you  to 
investigate as a  fair and  impartial Board and  not  as attorneys 
looking  for  a  way  to  support  the  Air  Force  position  on  a 
political correctness issue. 

Applicant's complete response is at Exhibit N. 

I 

ADDITIONAL STATEMENT SUBMITTED ON BEHALF OF APPLICANT: 

In a letter of  19 December 1996,  BGen R---  C---  [who issued the 
LOR;  now  retired] ,  describes  the  reasons  for  the  applicant's 
assignment to Incirlik AFB  in late August  1994 in a TDY status. 
He  further  states  that,  as  you  are-  well  aware, applicant  was 
accused  by  SRA  C - - - ,   an  airman  assigned  to  the  deployed AWACS 
unit,  of  sexual  assault/harassment  during  a  16 September  1994 
party following an OK  composite force mission  ---a large scale 
mission  similar  to  the  Red  Flag  exercises  conducted  at  Nellis 
AFB.  While at the party, applicant allegedly approached her from 
behind and grabbed or pinched her buttocks.  To the best of his 
memory  since  he  does  not  have  the  _I Security  Police 
investigation report at his disposal, only AlC  J---  W---  stated 
she saw applicant  approach SRA  C---  and perform  this act.  As 
outlined  in his  8 October 1994 memorandum to SAF/IGQ, paragraph 
L d . ,  the  two  officers  standing  in  front  of  SRA  C--- saw  [the 
applicant] approach the victim from behind, saw his arms moving 
toward  her,  and  then  saw  the  victim  jumping  up  and  forward. 
Based  on  the  evidence  available  to  him  he  issued  a  Letter  of 
Reprimand to  [the applicant] and forwarded the entire file to his 
commander , General J- - -  J- - - , 
He  learned of  the  alleged  incident  the morning of  17  September 
1994 through a phone call from  [BGen  (sel) J---  B---I, -. 
He told  [BGeh (sel) B---] to conduct a thorough investigation as 
quickly as possible.  The 17th was a no-fly day.  The very next 
day, he  had  applicant come to his office where  he  informed him 
there was an allegation against him of sexual assault and advised 
him  to  contact  the  Area  Defense  Counsel  (ADC).  To  say  [the 
applicant]  was  stunned  is  an  understatement. 
[The applicant] 
told  him  he  had  absolutely  no  recollection  of  this  incident. 
Further,  [the applicant]  stated the allegations were  completely 
out  of  character.  He  believes  then  as  he  does  now  that  [the 
applicant] did not recall this incident.  [The applicant] offered 
to  contact  the  airman and  make  a  personal  apology  despite  the 
fact he  did  not  know whether  or not  he  actually committed  the 
act.  He  (BGen C---) believes his  response was  [the applicant] 
should first contact the ADC while waiting for the investigation 
to run its course. 

The  statements  by  SRA  C ---,   AlC  W---  and  the  two  officers 
convinced  him  that  an  incident  had  occurred  involving  [the 

14 

AFBCMR 96-02 10 1 

Later,  he  issued  an  LOR,  first  hearing  [the 
applicant]. 
applicant's]  verbal  explanation. 
There  was  no  compelling 
evidence  that  he  did  not  commit  the  alleged  incident. 
Overindulgence in alcohol coupled with a long duty day and lack 
of sleep are not valid defenses. 

I 

P

.

R

In  early  December,  [the  applicant]  visited  his  place  of 
employment  after  retirement  for  an  orientation  tour  in  [the 
applicantls]  new position as m
 [The applicant] gave 
cc 
him  copies of  Lt  Col M---Is 2 December 1994 memo  to 
and the 26 May 1 9 9 6   memo to applicant's legal counsel.  This was 
the first time he had access to these documents.  Paragraph two 
of  the  26  May  1 9 9 6   memo  states:  !!One alleged witness, Airman 
First  Class  J---  W--- ,  recanted  her  original  eyewitness 
statement.. . . 
He has no knowledge as to the veracity of  this 
statement by Lt Col M---  nor has he seen any statement from AlC 
w- - -  other  then  what  was  in  the  original- 
Security  Police 
investigation report.  If AlC W---  has subsequently changed her 
statement  than  this  fact  needs  to be  pursued  since  she  is the 
individual who saw [the applicant] approach SRA C---  and grab her 
buttocks.  The two officers standing in front of SRA  C---  did not 
actually witness  [the applicant] grab SRA  C- - -  s buttocks.  They 
could only state that he was in a position to perform this act. 

A complete copy of this statement is Exhibit 0. 

ADDITIONAL AIR FORCE EVALUATION: 

HQ AFPC/JA  states, in part, that  having  carefully  reviewed the 
former  commanding  general's letter,-  they  have  not  altered  the 
conclusions  and  recommendations  reached  in  their  earlier 
advisory.  First, the statements from Lt Col M---  alluded to by 
BGen C---  are not new; they are already in the AFBCMR  case file 
and  were  reviewed  by  that  office  prior  to  completing  that 
advisory.  Indeed, they noted at that time that nothing furnished 
by  Lt  Col  M---  constituted  evidence  that  would  overturn  or 

otherwise discredit the findings made by the e Security Police 

Squadron, upon  which  BGen  C---  based  his  letter  of  reprimand. 
They also noted in their earlier advisory the fact that the file 
made  reference  to  the  claim  by  Lt  Col  M---  that  one  of  the 
eyewitnesses  to  the  incident  (presumably, A1C  J---  W - - - >   had 
supposedly recanted her  earlier  statement; however,  they  noted 
that the recanted statement was not in the case file and had not 
been  submitted by  the  applicant or anyone else.  It  is obvious 
from the tone of BGen C---'s letter that such a recantation was 
not  furnished to  him  either.  Their  conclusion is  that  if  any 
testimony was recanted, it was not reduced to writing or someone 
would  most  certainly  have  forwarded  it  to  the  Board  by  now. 
Thus,  as  was  the  case  before  BGen  C---'s letter,  the  only 
evidence the Board has before it  that a key witness  in the case 
has  supposedly recanted  testimony  is  a  statement by  an officer 
who was  stationed with applicant at  the  time  (Lt Col M---)  and 

15 

AFBCMR 96-02 10 1 

who has an obvious bias  to discredit the victim  and  her  story. 
No  one, 
however,  has  provided  any  evidence  of  recanted 
testimony.  They would note that it is not the responsibility of 
the  AFBCMR  to  serve  as  an  investigative  body  and  chase  down 
questionable claims such as this; rather, the  Board  is  charged 
with the responsibility to determine the issues before it based 
on the evidence of record in the case file.  If the Board were to 
determine  nevertheless  that  further  investigation  of  this  ' 
allegation  is appropriate, a position  with  which  they strongly 
disagree,  they  would  recommend  that  the  Board  pursue  such  a 
request through appropriate investigative channels.  Suffice it 
to  say  once  more,  however,  that  if  such  truly  exculpatory 
evidence existed, the Board would certainly have had it by now. 
HQ AFPC/JA  further states that, in their opinion, even if  such 
evidence  did  exist,  it  would  not  change  the  result.  As  was 
thoroughly  explained  in  their  earlier  advisory, the  victim  of 
this alleged assault has stated unequivocally that it took place; 
this airman has never wavered  in her  statement to  that  effect. 
Moreover,  no  witness  who  provided  statements  to  the  Security 
Police  ever  stated  that  the  incident  did  not  take  place;  the 
statements offered by  the  applicant in his  attempt  to mitigate 
the  incident  merely  state  that  the  particular  witnesses  in 
question  did  not  see  anything, not  that  the  incident  did  not 
occur.  Finally, as we pointed out in our earlier advisory, the 
applicant has never denied the allegation  (suggesting he was too 
drunk to remember one way or the other).  Consistent with this, 
what is probably the most telling piece of evidence in this case 
is  the  repeated  mention  by  the  applicant  that  he  wanted  to 
apologize  to  the  airman  and  the  fact  that  this  applicant's 
behavior  subsequent  to  the  event---to  include  his  actions  as 
described by  his defense counsel---was  entirely consistent with 
someone who was guilty of the alleged conduct. 

In sum, it  is recommended that this application be  denied.  All 
of the evidence of record clearly supports the actions that were 
taken;  nothimg  offered  by  the  applicant  or  by  BGen  C---  has 
altered  that  fact.  Although  the  Board  could  certainly pursue 
further investigation of  the issue raised by BGen C---, they do 
not believe such action would either be appropriate or necessary. 
Even  if  the  witness  had  recanted  her  statement, the  evidence 
remaining is sufficient, in their opinion, to sustain the actions 
taken.  As they noted in their earlier advisory, this applicant 
simply  refuses to  accept  responsibility  for  his  actions  or  be 
accountable for his conduct, and he  insists on blaming everyone 
else, including "the system" and his lawyer, for his own lapse in 
behavior.  The bottom line in this case is that the applicant has 
failed to present credible evidence to support his contention of 
legal error or injustice. 

A complete copy of the additional evaluation is at Exhibit Q. 

16 

AFBCMR 96-02 10 1 

, 

APPLICANT'S RESPONSE TO ADDITIONAL AIR FORCE EVALUATION: 

The applicant states that he has not changed his position that he 
did not commit this act and that he  is appealing for a full and 
untainted investigation. It appears to him that not only was his 
case  improperly investigated and  influenced by  BGen  (sell  J--- 

B--- and the e Security Police, but may have been-  tainted and 

influenced by the AFBCMR  itself.  To say that he does not think 
his case has been handled properly is an understatement.  If  it 
will  ever  be  handled  in  an  ethical manner  is  questionable. He 
requests that he be given a fully accounting of all the paperwork 
that will go before the Board and copies of it, so that he knows 
none  of  it  has  been  altered  or  lost---both  concerns  he  has  a 
right to question. 
He would like to know why it took the board until March .29 [sic] , 
1997, to put  a  cover  letter with  [+he  additional advisory]  of 
24 January and mail  it to him on March 20, 1997. He was told he 
''was hard  to  find," despite his  having  notified  the  AFBCMR  in 
writing of  his PCS move  and address. Is he  supposed to believe 
that  the  Board  is  capable  of  handling  any  record or  should he 
believe  that  a  form  cover  letter  takes  two  months  to  print, 
staple, and attach to a response? Again, he asks for assurances 
that this Board is not  in itself incapable of  impartial or even 
competent decisions. 

[AFPC/JA]  again  contends  in  the  advisory  that  he  is  guilty 
because  he  apologized  and  again  insists  that  he  has  taken  no 
responsibility for his actions.  He will not rehash what he has 
already addressed  in his package  and  subsequent letters before 
you.  [AFPC/JA]  has  offered  no  evidence  as  to  why  an  apology 
constitutes guilt or why it constitutes a lack of responsibility. 
From the beginning to date, he is the only one who has not tried 
to  dodge,  cover-up,  or  lie.  Committing  the  deadly  crime  of 
apologizing is  the worst  [AFPC/JA] can offer for guilt.  What  a 
shame that no one ever shown [the author of the AFPC/JA advisory] 
that  courtesfr, for that  is all  that  a  questionable apology  is. 
Even  the  19 Dec  1 9 6 6   memorandum  from BGen  C---  stated  that  he 
(the applicant) wanted  to apologize despite his  doubts, but  he 
(BGen C---> counseled that he  should get an attorney. No wonder 
the Air Force suffers from such credibility gaps with the public 
and Congress as the Black Hawk, CT-43 crash, and Khobar Towers. 
The  leadership  in  each  case  was  hidden  and  continues  to  hide 
behind  legal  counsel  such  as  [HQ  AFPC/JA's]  and  he  (the 
applicant)  is  not  acting  responsibly?  He  maintains  that  in 
stopping his  career, the Air  Force  is  downsizing one  of  their 
blindly  loyal while  keeping their blatantly derelict.  [AFPC/JA] 
introduces several  other  contentions using  BGen  C---Is letter, 
which he will address. 

[AFPC/JA] says that a recantation by A1C W---  is not in the case 
file and has not been submitted by him or anyone else.  He does 
does  he  have  any  way  of 
not  know  if  she  recanted  or not, 
obtaining that  information. AlC  W 
lied  about  his  touching 

17 

AFBCMR 96-02 10 1 

her and he believes that  lying in a sworn statement is perjury. 
She also recognized him  but  not  her  friends that were  standing 
there and she was  quite  inebriated. He  thinks A1C W---  makes  a 
very questionable witness, but  [AFPC/JA] has put great  faith in 
her.  She  lied  once, maybe  she  had  a  pang  of  conscience  and 
recanted; he only has Lt  Col M---Is statement to go on and he, 
after all, knew her.  [AFPC/JA] perhaps knows her, he does not. 

[AFPC/JA]  also  has  absolute  faith  in  the  sacredness  of  the 
investigation file.  His case file shows that he had  to reapply 
for a llcompletell file several times, and after telling him he had 
received a complete, but  unreadable file, the  IG  suddenly found 
two more statements.  On the one and only time he was allowed to 
see, but  not  have  a  copy  of,  a  compete  file,  the  morning  of 
5 October 1994, for about an hour, there was a sworn statement by 
MS. L--- H---  and numerous statements by-personnel. 
As 
you will see in the file, the IG maintains these do not exist. He 
saw the file; the IG did not. The statements did exist but now do 
not.  Could  her  statement  have  lldisappearedll along  with  these 
others? Only those who know where the rest of the file went know 
the answer to that. 

I 

[AFPC/JAl  may believe  that evidence has not  disappeared in this 
case, but  he  knows  that  sworn  statements were  in  the  original 
file and no one has provided them to date.  Where did these files 
go? Can  [HQ AFPC/JA]  swear that a recantation never existed just 
because he did not  see one in the investigative report? Strange 
how that file seems to have records appear and disappear at will. 
He  has  repeatedly  tried  to  get  a  complete  file, but  does  not 
think an untampered one exists. 
Since  the  file  has  been  tainted, -  where  can  one  obtain  the 
statements?  [AFPC/JA] said that  "it is not the responsibility of 
the  AFBCMR  to  serve  as  an  investigative  body  and  chase  down 
questionable claims such as this.  Is  [AFPC/JA] insinuating that 
he  has  the  responsibility to  "chase down questionable claims?" 
Imagine what'would  happen  if  he  contacts AlC W---  and  requests 
such  a  thing. Under  Paragraph  2  of  the  Board  Responsibilities 
which he was  sent  in May  1966,  2.1 states, IIHowever, the Board 
may,  in  its  discretion, hold  a  hearing  or  call  for  additional 
evidence. .  . I 1   It would seem that the Board can ask questions he 
cannot legally ask.  Why would the Board hesitate to gather any 
and all statements and investigate thoroughly the handling of the 
case if  the Board intends to see that justice is served? If  the 
Board  subscribes  to  [AFPC/JAIs] sarcasm, then  investigating  is 
just  "chasing  down  questionable  claims. 
Please  do  not  use 
[AFPC/JA's] obvious disdain for the evidence he has collected and 
be  swayed by  the derogatory dismissal of  this as a questionable 
claim. 

[AFPC/JA] further shows contempt for his case by impugning Lt Col 
M- - - .  Lt Col M---  was advised, by an attorney, not to provide him 
with  any  information. Lt  Col  M ---  decided  to  do  the  honorable 
thing and provide him  with  information Lt  Col  M ---  used  in his 

18 

AFBCMR 96-02 10 1 

own  case  and  to  answer  questions for him  (the-  applicant). Had 
BGen C---  done what he told him had  [sic] done in September 1994, 
BGen C---  would not  be  relying on memory and  a  letter he  (the 
applicant) provided him, but  would  have  talked  to Lt Col  M---. 
[BGen C---I told him he had done it in 1994 and he believed  [BGen 
c- - - I  to be truthful. He now found out that had he not asked Lt 
Col M---  himself, he would never have known of  this information 
from either of two men who called themselves his friend,  BGen  ' 
c- - -  and MGen  (sel) S---  J--- .  Lt Col M---  had nothing to gain 
by helping him and has risked a great deal.  Maybe you should ask 
the two generals why they did such a poor job of following up on 
leads at the time of the investigation. 

Yes Lt Col M---  received punishment, but he would expect that at 
some point  [Lt Col M---] would appeal his treatment as well.  As 
Lt  Col  K---  told  his  (the applicant's) wife  and  him  at  their 
meeting  in the  summer of  1996,  Lt  Co1  M ---  has  a  strong legal 
case because of  his treatment by BGen  (sel) J---  B---  and MGen 
(sel) S---  J--- .  She  was  an  attorney  who  found  him  to  be  a 
credible witness who had  received unjustified punishment  by  two 
men who should have acted responsibility. 
[AFPC/JA]  places  tremendous  credibility  in  the  statements  of 
several  witnesses  who  are  not  so  credible.  Their  statements 
should be further examined., [AFPC/JA] states that  'Ithe victim of 
this alleged assault has stated unequivocally that it took place; 
this airman has never wavered in her  statement to that effect." 
Perhaps  [AFPC/JA] talks  to  SRA  C---  on a  regular basis,  since 
%ever1' spans right up to the moment. He has not talked with her 
since the morning before the alleged incident, when she thought 
his  asking  her  questions  about  her  job  constituted  his  being 
"judge and jury over'' the AWACS. As others have stated Ms. 
was  definitely  a  disgruntled  AWACS  troop---read  MGen  A---sl 
report of the low morale---who thought she should not have had to 
deploy. 
She  had  tried  the  sexual  harassment  allegation  on 
several others and she had threatened to "get even"  with the Air 
Force by  '!taking out'! an officer. He thinks greed and hatred of 
Air Force officers caused her to set her sights on revenge. That 
is a strong motivation to maintain one's story. 

She was  also  interested  in pursuing  a  sexual  relationship with 
a witness  in the  investigation] ,  into 
Captain K---  [-5rCS, 
whose arms she fell. She appealed for assistance, after the fact 
and  in the privacy  of  his  room, to Captain F---  [.'-r""CS, 
a 
witness in the  investigation], who was  interested in pursuing a 
sexual relationship with her.  Attention-getting is also a great 
motivation  and  her  recounting  and  embellishing  each  time  she 
retold the story is quite dramatic.  There should be enough there 
to  question  her  veracity,  but  there  is  more.  She  brought  a 
lawsuit in Federal court charging not only sexual assault by him, 
but  that  she was  subsequently forced out of  the Air  Force as a 
result of  collusion by him, Lt Col M---, and  MGen  (sell  S--- 
J- - - .  Not  only is the assault part  a fabrication, but  also the 
subsequent  ruin of  her  career.  He  never  had  any  contact  with 

19 

AFBCMR 96-02 10 1 

her. As  you can see there was no friendly conversation between 
MGen  bel) J---  and him  and he only saw Lt Col M---  the day he 
left when he tried to give him  (the applicant). information. 

SRA C---  had  expressed her plan to exit  the Air  Force prior to 
the alleged incident and he has since been  told  she had  turned 
down a chance at further training for career progression prior to 
the alleged incident. He was not  in her chain-of-command and to 
his knowledge no one forced her out. She quit because she wanted 
to. 

Apparently  the  Justice  Department  did  not  buy  her  arguments 
because they argued the case, instead of  "paying her off,  which 
he  is told  is done when  the  Pentagon thinks it  cannot win  the 
case. It was  subsequently turned down by  that  court  and  she is 
now appealing in the Federal District Court.  You bet,. she has 
not wavered  in her assertion. If  she wavers she risks a  strong 
counter-suit  by  those  she  has  falsely  accused. 
She  has  to 
maintain her story because she hopes to get money and is out on a 
llslanderll limb. 

[AFPC/JA] should have  noticed  that  only the  alleged victim  and 
her roommate swore that there.was another woman present that they 
Security Police report  you will 
saw.  Should you read  the 
find that they tried to fin  this person and could not. This is 
buried at the end of the report, but they had to admit they tried 
and  she  was  never  found. 
She  was  given  a  very  attractive 
persona by these two roommates, but a party of 2 O O + ,   many of them 
male,  and  single, do  not  remember  ever  seeing  such  a  person. 

That should have been a red flag to the e Security Police, but 
they  conveniently  let  those  sworn  statements  go  unchallenged. 
Again,  an  attorney  would  have  a  field  day  with  false  sworn 
testimony-- call it per j ury . 
SRA  C---  thought nothing of creating a person to strengthen her 
case and also to bring her roommate into the lie. Several other 
statements  attest  to  the  fact  that  the  roommate  would  say 
anything she was  told  to  say by  her  friend. He wonders  if  her 
allegiance is still as strong. Again, he  thinks you can see why 
he cannot obtain statements from either the alleged victim or her 
roommate. These were sworn statements and he  thinks lying under 
oath is perjury, but  [AFPC/JA] sees the alleged victim as a woman 
of  truth because  her  story never  wavered.  It  will  not  waiver, 
until she is held accountable in some public forum or asked tough 
questions by  unbiased  investigators, if  such  exist  in  the  Air 
Force.  Otherwise she risks losing money and being counter-sued. 

In  sum  he  maintains  the  following:  (1) he  did  not  sexually 
harass  Ms.  -, 
(2) the  investigation was  influenced by  BGen 
(sei>  J---  B---,  ( 3 )   his legal counsel was derelict,  ( 4 )   senior 
officials seriously mishandled his case, and  ( 5 )   justice at  the 
hands of the AFBCMR is questionable, unless he  is willing to pay 
for it  (see enclosed) . 

20 

AFBCMR 96-02 10 1 

He understands that this will take months. By the way, why did it 
take two months between the time  [AFPC/JA] faxed their comments 
and  [the AFBCMR staff] put a standard form cover letter on it and 
mailed it? Two months and no new information or investigation was 
added, just a form letter?  He understands that reading a hefty 
file  will  take  time,  but  two  months  for  a  cover  letter  is 
incredibly slow.  He apologizes  (note that he is not admitting to 
anything, but  only being polite) for the additional- requests of 
assurances of proper handling of his case which he requested and 
realizes that something more than a cover letter will really slow 
the process. 
Applicant's complete response, with an attached 22 January 1997 
statement he provided to the OSI, is at Exhibit S. 

/ 

THE BOARD CONCLUDES THAT: 

- 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2 .   The application was timely filed. 
3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence, of  probable  error  or  injustice  to 
warrant granting partial relief.  In reaching this conclusion, we 
considered the following: 

a.  The primary question before this Board was: Precisely 
what happened at the Arkadas Park party? To make a determination 
we  had to thoroughly examine the evidence of record and attempt 
to ascertain the credibility of the individuals involved. To that 
end, we greatly appreciate the willingness of  the applicant, his 
counsel, and his witnesses to testify before this Board. We also 
acknowledge the applicant's difficult burden. As  his counsel so 
aptly asked: "How do you prove you're innocent? How do you prove 
a negative--*that you did not do something?"  However, since the 
applicant was disciplined for misconduct, and this and any other 
Board Panel operates under the presumption of regularity, proving 
otherwise  rested  squarely  on  the  shoulders  of  the  applicant. 
During the course of our deliberations, we came to realize that, 
at  this  point  in  time,  the  evidence  unfortunately  does  not 
clearly reveal  exactly what  occurred on  16 September  1994, nor 
does  it  unequivocally  establish  whether  the  incident  was  an 
accidental or deliberate act. 

b.  This difficulty stems, in part, from the ROI prepared 
by  the Jll)l  Security Police. While we  are not  convinced that  it 
is fatally flawed by command influence as the applicant alleges, 
we do believe it  is inconsistent and contradictory. For example, 
the  highly  divergent  observations  from  the  witnesses  and  the 
incongruities between some of  their statements and the Security 
Police  summaries thereof give  one  the  uneasy  feeling that  this 
was  not  the  most  competently  or  thoroughly  conducted 

21 

AFBCMR 96-02 10 1 

investigation.  Further,  we  note  that  neither the  ROI  nor  the 
individuals' statements attached  thereto make  any  reference  to 
the water balloon fight mentioned in the applicant's appeal and 
in his witness's affidavit. ,As was  discussed during  the  Formal 
Hearing, this balloon  fight may  have provoked  an unintentional 
contact  between  the  applicant  and  the  complainant.  Had  the 
investigation been  more  thoroughly  conducted, perhaps  we  would 
qot now be facing so many unanswerable questions.  Ahother issue  ' 
which gave us pause was the fact that the enlisted eyewitness had 
to have her memory Ifrefreshed'' in 1996. 

c.  On  the  other  hand,  we  believe  it  would  be 
irresponsible  to  totally  disregard  the  testimony  of  the 
complainant and the two captains who state they saw the applicant 
deliberately  approach  her  from  behind. 
While  they  did  not 
actually see him grab her, it was seconds after he came up behind 
her  that  she  strongly reacted. Although  the  applicant 'may set 
great store by the Deployed Detachment Commander's statements, we 
find this individual's credibility somewhat suspect.  He clearly 
changed his stories regarding his response  (or lack thereof) to 
the  complainant's allegations.  We  also  cannot  ignore  the  fact 
that  the  former 
Commanding General, who  knew the  applicant 
and was in a position to consider all the evidence, including the 
applicant's  verbal  explanation,  still  issued  the  LOR.  As  he 
indicated in his supporting statement, he served the LOR because 
"there was  no compelling evidence that  [the applicant] did not 
commit the alleged incident." This remains true today.  The 
commander  also  stated  he  had  been  told  that  the  enlisted 
eyewitness  had  recanted  her  testimony. 
Since  he  could  not 
confirm  the  veracity  of  this  allegation, he  asked  that  it  be 
pursued.  This was done and while we note, albeit uncomfortably, 
that the eyewitness had to have her -memory "refreshed/'  the fact 
remains  that  she  still  did  not  recant  her  original  testimony. 
Consequently, we  are unable to  resolve all doubt  completely in 
the applicant's favor. 

d.  The second determination we had  to make was: If  the 
applicant did  commit the alleged misconduct, was the punishment 
he  received appropriate  or  do  mitigating  circumstances warrant 
relief?  If  we  could  state  categorically  that  the  applicant 
deliberately  grabbed  the  airman  as  alleged,  we  believe  the 
punishment  and  its  repercussions  were  probably  appropriate. 
However,  as  indicated  in  our  discussion  above,  we  cannot 
determine with certainty precisely what happened on 16  September 
1994.  It is conceivable that the incident occurred as presented 
in the  ROI. Since that possibility has not  been  eliminated, we 
cannot entirely exonerate the applicant.  Therefore, we  believe 
it would be  inappropriate to void the LOR  and the SOUIF in their 
entirety  from  the  point  of  their  inception.  However, we  also 
believe  certain mitigating  issues justify our recommending some 
.  We note that both the 
Commanding General and the HQ 
Commander recommended against establishing a SOUIF because 
they  believed  the  alleged  incident  was  an  aberration.  It  is 
apparent  they  did  not  intend  for  the  LOR  to  mar  forever  an 

22 

AFBCMR 96-02 10 1 

otherwise outstanding career. This, together with  the questions 
raised, rather than answered, by the substandard ROI inclines us 
to  believe  that  the  LOR  and  the  SOUIF  should  not  continue  to 
severely  impact  the  applicant's  second  and  third  promotion 
considerations. 

the 

for 

4.  In conclusion, after weighing all aspects of this appeal, we 
believe  the  LOR  and  the  SOUIF  considered  by  the  Calendar Year  ' 
1 9 9 5   promotion  board  should  stand;  however,  they  should  be 
deleted 
applicant's  remaining  two  promotion 
considerations.  Although the applicant did not  address the PRF 
reviewed by the Calendar Year 1 9 9 6   promotion board, we shall do 
so  now.  That  document's  "DO  Not  Promote"  recommendation  was 
undoubtedly  driven  by  the  LOR  and  the  SOUIF.  Since  we  have 
concluded that the LOR and the SOUIF reviewed by  the 1 9 9 6   board 
should be voided, we believe the PRF for that board should also 
be deleted for the sake of consistency. These corrections warrant 
consideration by S S B   for the 1 9 9 6   board and, if the applicant is 
not  selected, SSB  consideration for the  1 9 9 7   board.  In view  of 
the many known and unknown components of this difficult case, we 
believe  our decision provides a  fair and responsible resolution 
which serves the interests of the individuals involved as well as 
the  Air  Force.  Thus  we  recommend  the  applicant's  records  be 
corrected as indicated below. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that: 

a.  The Senior Officer Unfavorable  Information File  (SOUIF), 
to  include  the  Letter  of  Reprimand  dated  5  October  1 9 9 4 ,   the 
Report  of  Investigation dated  30 September 1 9 9 4 ,   and  all  other 
attachments  pertaining  thereto,  which  was  considered  by  the 
Calendar Yea?  1 9 9 6   and  1 9 9 7   Brigadier General Promotion Boards, 
be declared void and removed from his records. 

b.  The  Promotion  Recommendation  Form  considered  by  the 
Calendar  Year  1 9 9 6   Brigadier  General  Promotion  Board,  and 
reflecting  an  overall  promotion  recommendation  of  "DO  Not 
Prornote,'l be declared void and removed from his records. 

It  is  further  recommended  that  his  corrected  records  be 
considered for promotion to the grade of Brigadier General by  a 
Special  Selection  Board  (SSB)  for  the  Calendar  Year  1996 
Brigadier  General  Promotion Board  and,  if  not  selected, he  be 
considered by  SSB  for  the  Calendar Year  1997 Brigadier General 
Promotion  Board;  and  that  the  Promotion  Recommendation  Form 
considered by the Calendar Year 1995 Brigadier General Promotion 
Board  and  reflecting an overall promotion recommendation of  "DO 

23 

AFBCMR 96-02 10 1 

Not Promote" not be included in the records reviewed by  the SSB 
for the Calendar Years 1986 and 1977 Brigadier General Promotion 
Boards. 

The following members of the Board considered this application in 
.a  Formal  Hearing  on  17  December  1997,  and  deliberated  in  ' 
Executive Session on  1 8   December  1997, under  the provisions of 
AFI 36-2603: 

Ms. Charlene M. Bradley, Panel Chair 
Mr. Charles E. Bennett, Member 
Mrs. Barbara A. Westgate, Member 
Mr. Kenneth L. Reinertson, Member 
Mr. Henry Romo Jr., Member 

All  members voted  to correct the  records, as recommended. 
following documentary evidence was considered: 

The 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 
Exhibit J. 
Exhibit K. 
Exhibit L. 
Exhibit M. 
Exhibit N. 
Exhibit 0. 
Exhibit P. 
Exhibit Qk 
Exhibit R. 
Exhibit S. 
Exhibit T. 
Exhibit U. 
Exhibit V. 
Exhibit W. 

Exhibit X. 

Exhibit Y. 

dated 8 Oct 94. 

dated 17 Jul 95. 

DD Form 149, dated 16 Jul 96, w/atchs. 
Applicant's Master Personnel Records. 
LOR, dated 5 Oct 94. 
Letter, "/CG, 
Letter, HQ -/CC, 
PRF f o r   1995 Promotion Board. 
Top OPR for 1995 Promotion Board. 
PRF for 1996 Promotion Board. 
Talking Paper and Top OPR for 1996 Board. 
Letter, HQ AFPC/JA, dated 26 Sep 96. 
Letter, AFBCMR, dated 21 Oct 96. 
Letter, Applicant, dated 23 Oct 96. 
Letter, AFBCMR, dated 29 Oct 96. 
Letter, Applicant, dated 17 Dec 96. 
Letter, Brig Gen R---  C--- ,  dated 19 Dec 96. 
Letter, AFBCMR, dated 21 Jan 97. 
Letter, HQ AFPC/JA, dated 24 Jan 97. 
Letter, AFBCMR, dated 20 Mar 97. 
Letter, Applicant, dated 1 3   Apr 97. 
Privileged Information -  Withdrawn. 
PRF and Top OPR for 1997 Board. 
Hand-drawn Map presented at Formal Hearing. 
Air Force Times Article presented at Formal 

Redacted Copy of Memo for Record, dated 2 Dec 

Hearing, dated 22 Dec 97. 
presented at Formal Hearing. 

Transcript of Formal Hearing. 

CHARLENE M.  BRADLEY 
Panel Chair 

24 

AFBCMR 96-02 10 1