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DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

OCT 2 3 "1998 

Office of the Assistant Secretary 

AFBCMR 98-00094 

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: 

tary records of the Department of the Air Force relating to 
e corrected to show that: 

a.  The Article 15, UCMJ, initiated on 13 September 1996, with punishment imposed on 

22 November 1996, be, and hereby is, set aside and removed from his records and all rights, 
privileges and property of which he may have been deprived be restored. 

b.  The Company Grade Officer Performance Report (OPR), AF Form 707B, rendered 
for the period 23 July 1996 through 22 July 1997 be, and hereby is, declared void and removed 
from his records. 

It is further directed that, should he not be selected for promotion to the grade of captain by 

the Calendar Year 1998D (CY98D) Captain Selection Board, scheduled to convene on 
21 September 1998, his records, as amended, be considered by Special Selection Board (SSB) 
for the CY98D board. 

Air Force Review Boards Agency 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 98-00094 

COUNSEL:  None 

HEARING DESIRED:  Yes 

APPLICANT REQUESTS THAT: 
The Article 15, dated 22 November 1996, be set aside and removed 
from his records, including his promotion selection record and an 
Unfavorable Information File  (UIF) . 

APPLICANT CONTENDS THAT: 
He  did  not  commit  the  offenses  alleged  in the Article  15. The 
inconsistencies in the accusers' statements demonstrate they were 
not  credible.  The  Article  15  specifications were  identical  in 
nature  and  language  to  the  specific  reasons  listed  on  the 
recommendation for "Not Qualified  for Promotion  (NQP)  to first 
lieutenant  (1Lt) action.  The  Secretary of  the  Air  Force  (SAF) 
determined, "on the basis of the evidence presented," that he was 
qualified  for promotion.  The evidence submitted to the  SAF  is 
the same evidence contained in the Article 15.  The decision of 
the SAF sets a great precedence.  He has already met a promotion 
authority  on  8  December  1997  with  this  information  in  his 
selection record. To be required to meet  a subsequent promotion 
board with the same prejudicial information would be unjust  and 
possibly suggest double jeopardy. 
In support, he provides  documents pertaining to  the Article  15 
proceedings and the NQP action. 
Applicant's complete submission is attached at Exhibit A .  

STATEMENT OF FACTS: 
Applicant has 7 years, 1 month and 2 days of enlisted service. He 
was honorably discharged on 28 December 1992 to enter the officer 
training program. He is currently serving on extended active duty 
in the grade of 1Lt  (DOR: 11 Jan 97). 

pplicant  was  a  2Lt  assigned  to 
PTS),  Air  Intelligence  Agency 
lowing information was extracted 
provided by  the  applicant  and  from his 

military personnel record: 

Subsequent to a security police investigation, the applicant 
was served an Article 15 on 16 September 1996, which consisted of 
three specifications in violation of Article  134  of  the Uniform 
Code  of  Military  Justice  (UCMJ). The  first  two  specifications 
stemmed from the applicant's alleged adulterous affairs with two 
different women: an Army NCO and an Air Force civilian. The third 
specification was  for allegedly fraternizing with  the Army NCO. 
The  applicant's  commander became  aware  of  situation after  the 
Army NCO  filed charges that  the  applicant had  assaulted her  on 
21 July 1996. 

On 7 October 1996, after consulting with counsel, applicant 
waived  his  rights  to  a  trial  by  court-martial,  accepted 
nonjudicial punishment proceedings, and  acknowledged  his  rights 
concerning the nonjudicial punis 
oceedings. The applicant 
and  presented  written 
appeared  before  the  commander, 
matters.  On  13 November  1996, 
/Cc  provided  a  written 
summary  of  the  Article  15  presentation  to  the  AIA  commander 
(AIA/CC) ,  who  was  to  determine  whether  to  impose  nonjudicial 
punishment. Applicant's presentation was included. 

On  22  November  1996,  the  AIA/CC  imposed  punishment 
consisting of  forfeitures of  $1000 pay per month  for two months 
and  a  reprimand.  The  applicant  appealed  this punishment  on  2 
December 1996. It was determined that  the applicant should have 
been allowed to make his presentation before the AIA/CC since the 
AIA/CC was reasonably available. As a result, the AIA/CC granted 
the  applicant's  request  to  appeal  on  20  December  1 9 9 6   and 
scheduled  an  appointment  for  the  applicant  to  make  his 
presentation before him on 6 January 1997. 

In  the  interim, on  3  January  1997, applicant  was  advised 
that he was recommended for an NQP  to  1Lt action.  The reasons 
cited were the same as the Article 15 specifications.  Applicant 
appealed the recommendation on 15 January 1997. 

On  17  January  1997,  AIA/CC  determined  that  nonjudicial 
punishment was appropriate and imposed punishment of  forfeitures 
of $750 pay per month for two months and a reprimand. The AIA/CC 
also  determined  that  the  Article  15  would  be  placed  in 
applicant's selection records. 

On 30 January 1997, applicant requested that the AIA/CC not 
file  the  Article  15  in  the  selection  records  and  presented 
written matters for consideration. On that same day the applicant 
also  appealed  the  Article  15  punishment  to  the  Vice  Chief  of 
Staff  (HQ USAF/CV), the appellate authority. 

On  25  February  1997,  the  applicant  was  acquitted  in  a 
civilian  jury  trial  of  the  assault  charges.  The  prosecutor 
provided an affidavit pertaining to this matter. 

On 3 March 1997,  the applicant provided additional material 
to the HQ USAF/CV  in appeal of  the Article  15 punishment. That 
same day he  also appealed to the SAF regarding the NQP  action, 
advising that in February 1997 he had been acquitted by  jury of 
the assault charges filed by the Army NCO. 

After  reviewing  all  matters  presented  in  the  Article  15 
appeal as well as the entire case file, the HQ USAF/CV denied the 
appeal on 5 March 1997. 

On 10 April 1997,  the AIA/CC determined that the Article 15 

would be filed in applicant's selection records and UIF. 

On 14 April  1997 ,  applicant provided  additional matters  to 

the SAF regarding the NQP action. 
On  17  November  1997,  the  Air  Force  Personnel  Board  (AFPB) 
considered the NQP action and indicated it had  failed to find a 
preponderance of the evidence supported a determination that the 
applicant had engaged in either adultery or fraternization.  The 
AFPB recommended against the NQP action. On 8 December 1997,  the 
SAF  designee,  the  Director of  Air  Force  Review  Boards Agency, 
determined that the applicant was qualified for promotion to the 
Reserve grade of 1Lt. 
On 14 January 1998 ,  the Officer Performance Report  (OPR) closing 
22  July  1997  was  referred  to  the  applicant. 
Three  of  six 
Performance  Factors  in  Section  V  were  marked  "Does  Not  Meet 
Standards" and the rater referred to the contested Article 15 in 
Section VI.  Applicant provided  a rebuttal on 23  January 1998, 
which  prompted  the  report  to  be  rewritten  in  part  and  again 
referred to him on 17 June 1998.  Applicant rebutted this version 
of  the  OPR  on  26  June  1998;  however,  the  additional  rater 
concurred with the marked down performance factors and Article 15 
comment and added a comment regarding the Article 15 in Section 
VII. The OPR was filed in his records on 21 August 1998, and the 
Personnel Data System was updated in September 1998. 
HQ AFPC informally advised the AFBCMR Staff that the applicant is 
scheduled to be considered for promotion to the grade of captain 
when  the  Calendar  Year  1998D  (CY98D)  Captain  Selection  Board 
convenes on 21 September 1998. 
OER/OPR profile since 1996, follows: 

PERIOD ENDING 

EVALUATION OF POTENTIAL 

12 Feb 96 
22 Jul 96 
22 Jul 97 

Meets Standards 
Meets Standards 

Referral  (Does Not Meet Standards 

in 3 Performance Factors) 

3 

98-00094 

AIR FORCE EVALUATION: 

The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
evaluated  this  case  and  indicates  applicant  has  provided  no 
additional evidence that was not previously considered during the 
processing of his Article  15 and subsequent appeals which would 
indicate an injustice has occurred.  Although  the applicant may 
have pointed  out  some  inconsistencies in the  two  complainants' 
statements, none  of  these  inconsistencies  is  relevant  to  the 
principal conduct with which the applicant was charged, which is 
the adultery and fraternization. It is common for individuals to 
have a faulty memory regarding inconsequential events. He has not 
provided a logical explanation as to why two separate women, who 
apparently did not know each other, would  come forward and make 
false allegations against him. His attempts to rationalize as to 
why  they  would  do  this  are  fairly  weak.  A  set  aside  is 
appropriate  in  the  unusual  case  where  there  is  a  question 
concerning the guilt of the offender or where  it is in the best 
interests of  the Air  Force to clear the member's record. A  set 
aside  is clearly not  appropriate in  this case. The  applicant's 
case  was  thoroughly  reviewed  by  two  commanders  and  thoroughly 
reviewed  again  on  appeal.  There  is  nothing  compelling  in  his 
responses  to  the  Article  15  or  in  this  application  which 
indicates a clear injustice has been done. The punishment is not 
disproportionate to the offense committed. Denial is recommended. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

The  applicant  reviewed  the  evaluation  and  reaffirms  his 
innocence.  He  contends  that  strong  credibility  issues  were 
ignored, which does not reflect fairness and impartiality. He has 
provided evidence to prove the  [cornplainants] lied in their sworn 
statements. To find him guilty based on unproved allegations and 
without any evidence is an injustice. The burden of proof should 
be on the accuser. The accusers' sworn statements were the only 
evidence  provided,  hence  their  word  is  what  the  decision  was 
based  on.  Contrary  to  the  advisory's  suggestion  that  the 
inconsistencies are  "irrelevant , It  he  contends that while  it may 
have  been  of  no  consequence  to  the  complainant  to  make  these 
allegations, they were  detrimental to  his  career and  integrity 
and should not be dismissed.  These inconsistencies go directly 
to the credibility of the complainants and credibility is crucial 
since the words of  their sworn statements are what  the decision 
was based on. The  inconsistencies were  due to  lies, not  faulty 
memory. He provides further rationale as to why the complainants' 
statements  are  not  credible.  The  injustice  is  clear  in  that 
there was a rush to judgment as to his guilt.  Afker  reviewing 
the evidence, the SAF determined he was qualified for promotion. 
The  SAF's decision  is  final. To  leave  this  information  in his 

4 

98-00094 

selection record would permit  a lower authority promotion board 
to rule on what the highest Air Force authority has already ruled 
on, which is a serious breach of the chain of command structure. 
His application should be approved. 

Applicant's complete response, with attachment, is at Exhibit E. 

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  voiding  the  contested  Article  15  in  its  entirety. 
Normally we are reluctant to overturn a commander's imposition of 
nonjudicial punishment as he  is usually in the best position to 
assess a member's credibility. Our reluctance is especially keen 
in this case given the fact that the Vice Chief of Staff was the 
appellate authority and he  undoubtedly carefully considered the 
entire case file before denying the applicant's appeal. However, 
based  on  the  lack  of  independent  evidence  supporting  the 
statements of  the  applicant's accusers  and  the  inconsistencies 
contained therein, we feel compelled to resolve any doubt in this 
applicant's  favor.  In  this  regard,  the  only  evidence  from 
independent third parties was provided by the applicant. Further, 
no  sworn  statements were  taken  from  witnesses  supporting  the 
enlisted female's allegations, and  the veracity  of many  of  the 
applicant's claims was not  investigated. Nothing other than the 
female civilian's own statement supports her assertions, yet the 
applicant  has provided persuasive  documentation  to  substantiate 
his.  We  note  the  AFPB  found  that  the  preponderance  of  the 
evidence did not  support the NQP action, and the SAF's designee 
determined  that  the  applicant  was  qualified  for promotion. We 
agree with this determination. The basis for the NQP action was 
the  same as for the Article  15 and, since the preponderance  of 
the evidence did not support the NQP action, we conclude it also 
does  not  support  the  imposition  of  nonjudicial  punishment. 
Therefore, we recommend that the Article 15 be set aside. 
4.  Although  the  applicant  neither  raised  the  issue  of  the 
referral OPR  closing 22 July 1997 nor requested its removal, we 
note that the report does refer to the Article 15 in question and 
cites  his  alleged  fraternization and  adultery.  Since we  have 
concluded the charges which drove the Article 15 are groundless, 
these  same  unsubstantiated allegations should not  serve as  the 
basis for the referral OPR. Therefore, the report is flawed and 
inaccurate  and,  in  the  interest  of  justice,  should  also  be 
removed from the applicant's records. 

5 .   In addition, since the above recommendations come too late to 
amend  applicant's  records  before  the  CY98D  board  convenes  on 
21 September 1998, we  further recommend that, should he  not  be 
selected for promotion  to captain, his  records, as amended, be 
considered by Special Selection Board  (SSB) for the CY98D board. 

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  Article  15,  UCMJ,  initiated  on  13  September  1996, 
with  punishment  imposed  on  22 November  1996, be  set  aside and 
removed from his records and all rights, privileges and property 
of which he may have been deprived be restored. 

b.  The  Company  Grade  Officer  Performance Report  (OPR), AF 
Form 707B, rendered for the period  23 July 1996 through 22 July 
1997 be declared void and removed from his records. 

It  is  further recommended that, should  he  not  be  selected  for 
promotion  to  the  grade  of  captain  by  the  Calendar  Year  1998D 
(CY98D)  Captain  Selection  Board,  scheduled  to  convene  on 
21 September  1998,  his  records,  as  amended,  be  considered  by 
Special Selection Board  (SSB) for the CY98D board. 

The following members of the Board considered this application in 
Executive  Session  on  3  and  15  September  1998,  under  the 
provisions of  AFI 36-2603: 

Mr. Henry C. Saunders, Panel Chair 
Mr. Joseph G. Diamond, Member 
Ms. Peggy Gordon, Member 

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

Exhibit A.  DD Form 149, dated 7 Jan 98, w/atchs. 
Exhibit B .   Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFLSA/JAJM, dated 24 Feb 98. 
Exhibit D.  Letter, AFBCMR, dated 19 Mar 98. 
Exhibit E.  Letter, Applicant, dated 

Apr 98, w/atch. 

. *  

DEPARTMENT OF THE AIR  FORCE 
AIR  FORCE  LEGAL  SERVICES AGENCY  (AFLSA) 

24 February 1998 

MEMORANDUM FOR AFBCMR 

FROM:  AFLSNJAJM (Capt Hogan) 
112 Luke Avenue, Room 343 
Bolling Air Force Base, DC 20332-8000 

Applicant’s request:  In an application dated 7 January 1998.- 

the applicant, requests that an Article 15 be set aside and removed from his records to include his 
Promotion Selection Record and an Unfavorable Information File . The applicant received the 
Article 15 punishment on 17 January 1997.  m a p p e a l e d  the punishment.  AF/CV, the 
appellate authority, denied his appeal on 5 March 1997.  This review will address the propriety of 
the Article 15 nonjudicial punishment proceedings.  The applicant is within the three year filing 
window provided by 10 U.S.C. 1552(b). 

Facts of military justice action:  On 16 September 1996, the applicant was served an 
Article 15 which consisted of three specifications in violation of Article 134 of the UCMJ.  The 
first two specifications stemmed fiom the applicant’s adulterous affairs with two different 
women, an Army NCO and an Air Force civilian.  The third specification was for hternizing 
with the Army NCO.  The applicant’s commander became aware of these charges after the Army 
NCO filed assault charges against the applicant,  (The applicant was subsequently acquitted of 
the assault charges in a civilian jury trial).  During the course of investigation relating to the 
assault charges, the Army NCO revealed she and the applicant dated for several months and had 
sexual relations numerous times during their relationship. During the investigation, a civilian 
woman came forward and stated she had a sex 
occasions.  The civilian, a civilian employee 
stated she stopped the relationship when she 
was married in December 1995.  His wife 1 
fiaternized with the Army NCO between, on or 
adulterous relationship began in early January 1996.  The applicant’s affair With the AF civilian 
occurred between May-June 1996. 

On 7 October 1996, the applicant acknowledged his rights concerning the nonjudicial 

punishment proceedings.  The applicant consulted a lawyer.  The applicant waived his rights to a 
trial by court-martial and accepted nonjudicial punishment proceedings.  The applicant requested 
to make a private personal appearance before the commander.  The applicant provided written 
matters for the cokander’s consideration.  On 7 October 1 996, the applicant made his 
presentation before 

o provided a written summary of the 

9800094 

presentation on 13 November 1996 to I[ AIMCC. I 
the commander who was to determine whether or not to impose nonjudicial 
-vas 
punishment.  On 22 November 1996.-i 
determined nonjudicial punishment 
was appropriate and imposed a punishment consisting of forfeitures of $1 000.00 pay per month 
for two months and a reprimand. 

The applicant appealed this punishment on 2 December 1996. It was determined that it 
was error for the applicant not to have been allowed to make his presentation before M C C  
since MAKC was reasonably available.  As a result, AWCC granted the applicant’s appeal on 
20 December 1996 and scheduled an appointment for the applicant to make his presentation 
before him on 6 January 1997. On 17 January 1997, N C C  determined nonjudicial 
punishment was appropriate after considering all the documentary evidence and the applicant’s 
personal presentation before him.  The punishment consisted of a reprimand and forfeitures of 
$750.00 pay per month for two months.  The punishment was imposed on 22 January 1997.  The 
applicant appealed his punishment to HQ USAF/CV, the appellate authority, on 30 January 
1997.  The applicant submitted matters in writing for the appellate authority to consider. After 
considering all the matters presented in the appeal as well as the entire case file, HQ USAF/CV 
denied the appeal on 5 March 1997. 

Applicant’s contentions:  The applicant maintains that he is innocent of all the charges 

and the specifications which were alleged in the Article 15.  Subsequent to his Article 15, the 
applicant was served a not qualified for promotion to first lieutenant action.  The applicant 
appealed.  The Secretary of the Air Force Review Boards Agency declared the applicant 
qualified to be promoted to first lieutenant on 8 Dec 97.  The applicant alleges the same evidence 
and his response used in the Article 15 proceeding was reviewed by the Board to determine 
whether he was qualified for promotion.  The applicant believes since the same evidence was 
used when the board decided he was qualified for promotion, that the Article 15 is unjust and 
should be set aside. 

In his response to the nonjudicial punishment proceedings, the applicant alleges that both 
women who filed a complaint against him were lying.  He points several inconsistencies in both 
complainant’s statements. In addition, the applicant submitted a statement from his wife who 
stated she believes her husband is telling the truth as well as statements from fiiends and co- 
workers in support of his good duty performance and his good moral character. 

Discussion:  The applicant has provided no additional evidence that was not previously 
considered during the processing of his Article 15 and subsequent appeals which would indicate 
an injustice has occurred.  Although the applicant may have pointed out some inconsistencies in 
the two complainant’s statements, none of these inconsistencies are relevant to the principal 
conduct with which the applicant was charged which is the adultery and fraternization. It is 
common for individuals to have a faulty memory regarding relatively nonconsequential events. 

The applicant has not provided a logical explanation as to why two separate women, who 
apparently do not know each other, would come forward and make false allegations against him. 
His attempts to rationalize as to why they would do this are fairly weak.  He alleges the Army 

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9800094 
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.- 

.. 

a 

NCO wanted more of relationship with him than she had.  The applicant admits in his Article 15 
response to socializing with the Army NCO off-duty.  He attended several activities with her to 
include an Army ball and a carnival.  The Army NCO knew the applicant well enough to have 
received his pager number.  The applicant knew the Army NCO well enough that he asked her to 
play host to several of his visiting friends from out-of-town since he thought he would be unable 
to because he thought he had to work.  This in and of itself is sufficient to prove that the 
applicant fraternized with the Army NCO.  The applicant points out several instances of conduct 
where the Army NCO behaved irrationally in fiont of him and others.  It can readily be assumed 
that the basis for her irrationality was the sexual relationship she had with the applicant and his 
indifference towards her. 

Prior to the commander’s findings, the applicant made two personal presentations.  One 
before his wing commander and one before AINCC. Both commanders were not convinced of 
the applicant’s version of events.  The applicant appealed the nonjudicial punishment action to 
HQ USAF/CV.  The appeal was denied. 

The Manual for Courts-Martial and AFI 5 1-202 allows for Article 15 nonjudicial 

punishment to be set aside on appeal if under all the circumstances, the punishment resulted in a 
clear injustice.  A set aside is appropriate in the unusual case where there is a question 
concerning the guilt of the offender, or where it is in the best interests of the Air Force to clear 
the member’s record.  A set aside is clearly not appropriate in this case.  The applicant’s case was 
thoroughly reviewed by two commanders and thoroughly reviewed again on appeal.  There is 
nothing compelling in the applicant’s response to the Article 15 or in this application which 
indicates a clear injustice has been done.  The punishment is not disproportionate to the offense 
committed. 

Recommendation:  Mer  a review of the available records, I conclude there are no legal 
errors requiring corrective action regarding the nonjudicial punishment and administrative relief 
by this office is not warranted.  Therefore, I recommend that the applicant’s request be denied. 

Associate Chief, Military Justice Division 
Air Force Legal Services Agency 

9800094 
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