AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-02698 

HEARING DESIRED: NO 

APPLICANT REOUESTS THAT: 
1.  The administrative demotion to the grade of staff sergeant 
(SSgt) be removed from his record. 
2.  He  be  restored  to  the  grade of  technical  sergeant  (TSgt) 
with back pay. 

The  Enlisted  Performance  Reports  (EPRs) rendered  for  the 
3 ,  
periods  1 March  1995  through  28  February  1996  and  29 February 
1996  through 28 February 1997 be declared void and removed from 
his record. 
4.  He  be  provided  promotion  relief,  either  in  the  form  of 
retroactive  promotion  to  master  sergeant  (MSgt), or  in  the 
alternative, he be given supplemental promotion consideration, 

APPLICANT CONTENDS THAT: 
Applicant's counsel states the commander violated the applicant's 
rights by denying him the right to face his accusers in a court 
room.  He  also  contends  that  the  commander  violated  specific 
provisions of AFI 36-2503 and that, therefore, the action taken 
against the applicant is legally insufficient and thus should be 
reversed. 
Applicant's  counsel also states that under the provisions of the 
Uniform  Code  of  Military  Justice  (UCMJ),  specifically  10  U.S. 
Code,  Section  815, and  the Manual  for Courts-Martial, Part V, 
paragraph 3 ,   an airman being offered Article 15 punishment has an 
absolute right to request that his case be considered by a court- 
martial.  Line 5 of AF Form 3070 clearly and correctly allows the 
accused  to  demand  a  court-martial. 
Applicant  desired  and 
deserved that right because in his heart and mind he knew he had 
not  committed  the  acts  alleged.  The  acceptable options  for a 
commander when  an  airman  demands  trial  by  court-martial is  to 
either refer it to a court-martial, or to drop the action.  I n  
this case, the commander. elected to ignore applicant's  exercise 

. 

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97-02698 

of  his  statutory  and  constitutional rights and  substituted an 
administrative process which deprives applicant of those rights. 
As  admitted in the Air  Force reply to a Congressional inquiry, 
the commander withdrew the Article 15 action because he did not 
consider the charges serious enough  for a court-martial.  That 
was not the commander's decision to make.  He elected to resolve 
the matter through the military justice system, the declsi-on on 
whether it should be  court-martial was the applicant's  decision 
and his  right.  This action by  the commander in and of  itself 
establishes both propriety and equitable bases for reversing the 
demotion  action.  The  administrative demotion  system  does  not 
permit the member to be faced by any accusers.  It is essentially 
up to the discretion of the commander to do what he believes is 
best. 
It  has  none  of  the  due  process  protections  that  are 
available under the military justice system. 
Applicant's counsel further states the first sentence of AFI 36- 
2503 states \\Don't use administrative demotions when it is more 
appropriate  to  take  actions  specified  by  . . . (UCMJ) ."  It  was 
clearly intended by AFI 36-2503 that the actions like those taken 
in  applicant's  case  not  occur.  Paragraph  1.3  of  AFI  36-2503 
states  that  the  entire  military  record  must  be  considered  in 
determining whether to demote.  The applicant had an outstanding 
record.  He received excellent evaluations, was promoted to TSgt 
at the  12 year point, which is ahead of  his contemporaries, he 
received decorations and congratulations for his performance of 
duties.  Applicant's  15-year  service  record  does  not  support 
demotion  action  and  was  either  overlooked  or  ignored  by  the 
demotion authority.  Paragraph 1.4 of AFI  36-2503 requires the 
commander to allow the individual to overcome deficiencies prior 
to  initiating  action.  Applicant  had  no  prior  incidents  and 
rehabilitative  efforts  had  not  previously  been  initiated. 
Probation  was  not  considered  even  though  it  would  have  been 
clearly  appropriate  in  this  case. 
The  provisions  of  the 
instruction were  ignored  by  the  chain of  command because  they 
wanted  to  punish  the  applicant  and  they  knew  that  under  the 
military  justice  instructions they could not  do so.  Applicant 
had  forced  them  into  going  to  a  court-martial,  his  defense 
counsel  had  clearly  established  legal  defenses  to  the 
allegations, so they pressed on with their illegal administrative 
action, perhaps hoping that applicant would not challenge them or 
believing  that  even  if  their  illegal  action  was  ultimately 
reversed, their purpose would have been achieved. 
In support of his request, he submits a copy of the Article  15, 
dated  23 June 1995, demotion action documentation, Excerpt from 
the UMCJ,  Appendix  2, Congressional  Inquiry Division  letter to 
Senator  Hutchison,  excerpt  from  AFI  36-2503,  five  letters  of 
appreciation. 
Applicant's complete submission is attached at Exhibit A. 

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97-02698 

STATE MENT 0 F FAC TS: 
Applicant  is currently serving in the Regular Air Force in the 
grade of SSgt. 
On 23  June 1995,  the applicant was notified of his commander's 
intent to impose nonjudicial punishment upon him for:  (1) making 
unwelcome and offensive sexual remarks t
r

o
(2) did  maltreat 

ject  to  his  orders 

Noncommissioned 

unwelcome  and  offensive  remarks  such  as,  \\we have  to  talk 
turkey,N'\\I enjoy seeing you in your blues, it makes my day," or 
words  to  that  effect.  Also  he  verbally  degraded  her  husband 
s3ying "he wasn't  good, wasn't  a man, and she shouldn't  put  up 
withd him," and then compared yourself to him  saying you were a 
'real  man, knew how to treat a woman, and his wife was treated 
like a queen and that- 
deserved better,', or words to that 
effect.  All  of  the  aforementioned  actions  created  a  hostile 
working environment. 
On  27  June  1995,  after  consulting  with  counsel,  applicant 
demanded trial by court-martial. 
On  30 October  1995,  applicant  was  notified  of  his  commander's 
intent  to  recommend  to  the  Commander, -1 Support  Group, the 
demotion  authority, that  he  be  demoted  to  the grade of  senior 
airman.  The  specific  reason  for  the  demotion  is  Failure  to 
Fulfill 
(NCO)  Responsibilities. 
Unprofessional  behavior  toward  unit  members'  spouses  and 
maltreatment of subordinates are indicators that applicant failed 
to  fulfill  his  general  NCO  responsibilities  of  maintaining 
exemplary  standards  of  behavior  including  personal  conduct, 
loyalty  and  support  of  the  Air  Force  directives  concerning 
unwanted sexual behavior. 
On  30 October  1995,  the  applicant  acknowledged receipt  of  the 
proposed  demotion  action,  did  not  concur  with  the  proposed 
demotion, would  provide  statements on  his  behalf,  requested  a 
personal  hearing  before  the  initiating commander, and  that  he 
consulted with counsel. 
On  1  April  1996,  the 
Support  Group  Commander demoted  the 
applicant to the grade of SSgt with a date of rank and effective 
date of 1 April 1996. 
On  3  April  1996,  the  applicant  acknowledged  receipt  of  the 
demotion action and elected to appeal. 
On 29 April 1996, the Wing Commander disapproved the applicant's 
appeal. 

Officer 

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EPR profile since 1993 reflects the following: 

97-02698 

PERIOD ENDLNG 

28 Feb 93 
28 Feb 94 
28 Feb 95 
*  28 Feb 96 
*  28 Feb 97 

*  Contested Reports 

EVALUATION OF POTENTIAL 

5 
5 
-
5 
2  (Referral) 
3  (Downgraded from 

-

 

a 4) 

AIR FORCE EVALUATION: 
The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed this 
application and states that the first time the applicant became 
ineligible for promotion consideration was February 1996 when his 
promotion eligibility status (PES) code was N.  This rendered him 
ineligible for promotion consideration for cycle 9737 as outlined 
in AFI 36-2502, Table 1.1, Rule L.  Also, PES code N was used to 
identify  an  individual  with  a  referral  EPR,  as  for  the  EPR 
closing 28 February 1996.  The fact that the EPR was a "2" report 
alone, would have rendered him  ineligible for promotion for the 
9737 cycle  (promotions effective August  1997  -  July 1998).  He 
was demoted to SSgt with a date of rank of 1 April 1996 and will 
be  eligible  for promotion  consideration  to  TSgt  for  the  98E6 
cycle (promotions effective August 1998 -  July 1999), which would 
include the EPR  closing 28  February 1997.  It is their opinion 
the demotion action taken against the applicant was procedurally 
correct and there is no evidence there were any irregularities or 
that  the  case  was  mishandled. 
There  are  no  provisions  to 
authorize an automatic promotion to MSgt  except by  the AFBCMR, 
Chief of Staff of the Air Force, or the Stripes for Exceptional 
Performers  (STEP) program, nor do they recommend this be  done. 
However, should the AFBCMR grant the applicant's request, he will 
be  entitled to have his former grade of TSgt reinstated with  a 
date of  rank of  1 January 1993.  In addition, providing he  is 
otherwise eligible and recommended by his commander, he would be 
entitled  to  supplemental  promotion  consideration  to  MSgt 
beginning with cycle 9637. 
A complete copy of their evaluation is attached at Exhibit C. 
The BCMR and SSB Section, AFPC/DPPPAB, reviewed the application 
and states that to effectively challenge an EPR, it is important 
to hear  from all  the evaluators on the  contested  report  -  not 
only  for  support,  but  for  clarification/explanation. 
The 
applicant  did  not  provide  any  evidentiary  support  from  the 
evaluators to substantiate error or injustice.  In the absence of 
information from evaluators, official substantiation of error or 
injustice from the  Inspector General  (IG) or Social Actions  is 

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97-02698 

appropriate, but not provided in this case.  The appeals process 
does  not  exist  to  recreate  history  or  enhance  chances  for 
promotion.  It  appears  this  is  exactly  what  the  applicant  is 
attempting to do -  recreate history.  The  contested EPRs  were 
rendered  to  the  applicant  as  a  result  of  substantiated 
unacceptable behavior.  They find  it  interesting the applicant 
chose  not  to  include  a  copy  of  the  official  Report  of 
Investigation conducted by  the  security police.  However,  the 
commander  obviously  considered  their  findings  and  found  they 
supported  the  allegations of  sexual harassment brought  against 
the applicant by the women.  Further, it is apparent he found the 
matter  to  be  a  serious  offense  worthy  of  reproof  and  took 
immediate and appropriate action.  The fact is, the applicant was 
expected to maintain standards of conduct and responsibility at 
least  as  stringent as  the  rest  of  the  noncommissioned officer 
corps .  The applicant was involved in substantiated incidents of 
sexual  harassment  and  was  removed  from  his  duties  as  a 
supervisor.  They understand the applicant's  desire for the board 
to direct voidance of the contested EPRs because of the promotion 
advantage.  However, to remove the EPRs from his record would be 
unfair to all the other NCOs who did not  sexually harass their 
subordinates'  wives  and  coworkers,  and  effectively  performed 
their duties.  They, therefore, conclude removal of the contested 
reports would make the applicant's record inaccurate. 
A  complete copy of the evaluation is attached at Exhibit D. 
The  Senior Attorney-Advisor, AFPC/JA,  reviewed  the  application 
and  states that they agree with  the comments of HQ AFPC/DPPPAB 
and HQ AFPC/DPPPWB, and concur in their recommendations to deny 
relief.  The  relief  sought  for removing  the  EPRs  in question, 
restoring  applicant s  previously  held  rank  of  TSgt  or 
retroactively promoting him  to MSgt, and removing the documents 
he has requested might merit consideration only if the underlying 
administrative demotion action was removed.  Counsel's  argument 
that  once  an  accused  demands  trial  by  court-martial,  it  is 
essentially a 'put  up or shut up" situation, is not supported by 
any authority.  The fact that para 3 . 3 ,   AFI 51-202, cautions that 
commanders  should  recognize  that  alleged  offenders may  demand 
trial  by  court -martial  (requiring proof  beyond  a  reasonable 
doubt),  in no  way  ties  a  commander's  hands  to  the  extent  he 
cannot withdraw the Article  15, UCMJ, action and proceed by way 
of  administrative  demotion  action. 
The  reality  that  such 
administrative actions may require a lesser standard of proof or 
provide a lesser degree of due process protection than a trial by 
court-martial, does not preclude their use after termination of 
proceedings  which  might  otherwise  lead  to  a  trial  by  court- 
martial . 
In  their  opinion,  the  action  of  the  applicant's 
commander in administratively demoting him was both procedurally 
and substantively correctly taken.  The commander determined, for 
reasons  they  are  unable  to  pinpoint  (particularly since  the 
applicant  chose  not  to  provide  a  copy  of  the  underlying 
investigation), that  administrative action was more  appropriate 
than judicial action.  That may have occurred for any number of 

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97-02698 

reasons. 
He  may  have  determined  insufficient  evidence  was 
available to constitute proof beyond a reasonable doubt.  He may 
have determined the gravity of the sexual harassment incident did 
not warrant subjecting applicant to trial by court-martial, but 
rather was more appropriately handled administratively.  Whatever 
the  reason for withdrawing  the Article  15 action, the  language 
pointed out by counsel does not prohibit administrative- action. 
That language, in their opinion, was designed to provide guidance 
to commanders that if a court-martial is warranted, pursue it - 
do not  confer unwarranted  leniency by  not  pursuing  appropriate 
criminal charges.  The fact that the course of action chosen by 
the commander affords fewer protections to the applicant, such as 
confronting  the  witnesses  against  him  and  proof  beyond  a 
reasonable  doubt,  is  perfectly  acceptable  and  complies  with 
concepts of  fairness and  equal protection, since  the peril  to 
which an accused in a trial by court-martial is subjected is much 
greater than that in an administrative action.  L o s s   of liberty 
far  outweighs  loss  or  rank  on  the  spectrum  of  punitive  and 
administrative consequences, 
AFPC/JA  also  states counsel  states para  1.4, AFI  36-2503, was 
violated by the commander because the applicant was not given an 
opportunity  to  overcome  deficiencies  prior  to  initiating  the 
demotion action.  That paragraph begins  "When appropriate, give 
airmen  an  opportunity  to  overcome  their  deficiencies  before 
demotion  action  is  initiated." 
Apparently,  applicant  has 
consistently  and  completely  denied  the  legitimacy  of  the 
allegations  of  sexual  harassment  against  him. 
It  seems 
inconsistent  to  them  how  applicant  could  be  afforded  an 
opportunity to overcome deficiencies he denies having.  This is 
not  to  say  an  opportunity  to  overcome  deficiencies  would  be 
appropriate even if applicant admitted wrongdoing -  his conduct 
may  have  been  of  such a nature  that  allowing him  to  overcome 
deficiencies was not warranted,  For the reasons outlined above, 
it  is  their  opinion  the  application  should  be  denied  in  its 
entirety.  Applicant has failed to present evidence of any error 
or injustice warranting relief. 
A  complete copy of the evaluation is attached at Exhibit E. 

APPLICANT'S REVIEW OF AIR FORCE  EVALUATION: 
The applicant  reviewed the advisory opinions and  states he  did 
everything in accordance with regulations when the Article 15 was 
offered and he chose a court-martial.  His squadron did not treat 
him justly.  He was caught in a Catch 22,  All he asked for was a 
chance to defend himself and face his accusers.  He was  tried, 
convicted, and punished without being allowed to step foot in a 
court-room, based on statements alone.  Even if he had gone to a 
court-martial and  lost, he may  not  have  lost a stripe, because 
everything would  have  been  taken into consideration  (Le., his 
EPRs, awards, decorations and history)  AFPC/JA points out that 

6 

97-02698 

the administrative demotion is considered a more lenient form  of 
action and  a court-martial is more  perilous, that  the  loss  of 
liberty far outweighs loss of  rank on the spectrum of punitive 
and administrative consequences.  This would be true if there was 
a form of defense in an administrative demotion.  All he was able 
to do to defend himself was turn in character statements, nothing 
to  refute  the  allegations.  Just  because  he  is  active  duty, 
shouldn't  mean that he doesn't  have the constitutional right to 
face his accusers. 
Counsel reviewed the Air Force evaluations and states the AFPC/JA 
advisory ignores the  factual circumstances of  what  occurred at 
Wright Patterson AFB.  The Commander clearly consulted JA and the 
determination  was  made  under  the  regulation  that  there  was 
sufficient evidence to proceed with military justice action.  The 
decision  was  made  that  it  was  "appropriate  to  take  actions 
The JA believed this, the commander 
specified under the UCMJ." 
believed  this,  and  applicant  believed  it,  that  is  why  he 
exercised his  right to have his case tried by  a court-martial, 
rather than by the commander who had already made the decisions 
against  him. 
Therefore,  the  prohibition  in  the  demotion 
regulation is clearly applicable here.  The commander should not 
have resorted to administrative action.  If the allegations made 
against applicant had any validity, they should have been sent to 
a trier of fact to determine if they were true.  The test was not 
whether the  commander thought he  could win  a court-martial, or 
whether the lesser burden of proof might be more in his favor in 
an administrative action, the test was whether the matter was one 
that should go through military justice channels.  Nothing in the 
advisory  suggest  that  the  case  was  not  serious  enough  for 
military  justice action.  When  applicant chose to exercise his 
legal  rights and  confront  his  accusers, the  commander changed 
course  and  elected  an  entirely  different  forum  in  which  the 
applicant had  no rights, no confrontation, and no appeal.  The 
commander could not  take a stripe under the UCMJ  so he  took it 
administratively. 
Applicant's/Counsel's complete responses are attached at Exhibit 
G. 

THE BOAR D CONCLUD ES THAT: 
1.  The  applicant  has  exhausted  all  remedies  provided  by 
existing law or regulations. 
2.  The application was timely filed. 

~~ 

Insufficient  relevant  evidence  has  been  presented  to 
3 .  
demonstrate  the  existence  of  probable  error  or  injustice. 
Applicant's contentions that the commander violated his rights by 
denying him  the right to proceed  to trial by  court-martial and 
that the commander violated specific provisions of AFI 36-2503 in 

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97-02698 

demoting him  is unsubstantiated.  The Board  is of  the opinion 
that  the  withdrawal  of  the  Article  15,  UCMJ,  action  and 
proceeding  with  the  administrative  demotion  action  was  well 
within the commander's  purview.  .In regards to the applicant's 
request  that  the  EPRs  rendered  for  the  periods  1 March  1995 
through 28 February 1996 and 29 February 1996 through 28 February 
1997 be removed from his record, we note that the applicant has 
not submitted any supporting documentation from the rating chain 
and has  failed to provide  sufficient evidence showing that  the 
reports were not an accurate assessment as rendered.  In view of 
the above findings, we agree with the opinion and recommendations 
of the Air Force.  We find no evidence of error in this case and 
after  thoroughly  reviewing  the  documentation  that  has  been 
submitted in support of applicant's  appeal, we do not believe he 
has  suffered  from  an  injustice. 
Therefore,  based  on  the 
available  evidence  of  record,  we  find  no  basis  to  recommend 
granting the relief sought in this application. 

THE BOAR D DETERMINES THAT: 
The  applicant be  notified  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  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 29 October 1998, under the provisions of AFI 
36-2603 : 

Mr. Vaughn E. Schlunz, Panel Chair 
Mr. Loren S. Perlstein, Member 
Mr. Terry A .   Yonkers, Member 

The following documentary evidence was considered: 

Exhibit A. DD Form 149, dated 4 Sept 97, w/atchs. 
Exhibit B. Applicant's Master Personnel Records. 
Exhibit C. Letter, AFPC/DPPPWB, dated 3 Mar 98, w/atch. 
Exhibit D. Letter, AFPC/DPPPAB, dated 5 Mar 98. 

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Exhibit E. Letter, AFPC/JA, dated 31 Mar 98. 
Exhibit F. Letter, AFBCMR, dated 20 Apr 98. 
Exhibit G. Applicant/Counsel's  Response, dated 10 Jun 98. 

97-02698 

Panel Chair 

9