RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-03020
            INDEX CODE:  126.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Letter of Reprimand, dated 8 Apr 97, Unfavorable Information  File
(UIF), and any and all documents and references pertaining thereto, be
declared void and removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He received  the  LOR  and  resulting  UIF  for  pursuing  a  romantic
relationship based on error of law and error of fact.  The LOR was not
legally sufficient.

In support of his appeal the applicant provided a personal  statement,
copies of the LOR and his rebuttal to the  LOR,  statements  from  his
current wife and defense  counsel,  and  excerpts  from  a  Report  of
Inquiry.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently serving on active duty in the grade of
lieutenant colonel.  His Total Active Federal  Military  Service  Date
(TAFMSD) is 6 Feb 77.

On 8 Apr 97, the applicant received  an  LOR  after  an  investigation
revealed that he was involved in an inappropriate  and  unprofessional
relationship with the wife of  a  subordinate  member  of  the  United
States Air Force.  The LOR indicated that while it was likely that the
applicant committed adultery, it was quite certain that he  pursued  a
romantic (in her words, “sexual”) relationship with his  current  wife
while she was still married.

A Report of Inquiry, dated 13 Mar 97, indicates that an  investigation
was conducted regarding  the  allegation  that  the  applicant  had  a
relationship with the former wife of a staff sergeant prior  to  their
divorce.  The Inquiry Officer concluded that:  (1)  there was reliable
evidence that the applicant engaged in a sexual  relationship  with  a
woman not his wife on 22 Mar 95.  This act  occurred  before  she  was
divorced.  To  SSgt  XXXX,  the  applicant  actions  could  have  been
considered  dishonorable,   disgraceful,   indecent,   and   seriously
compromised his standing as an officer; (2)   based  on  the  existing
evidence,  reasonable  doubt  existed  as  to  whether  other  of  the
applicant’s actions amounted to  conduct  unbecoming  an  officer  and
gentleman; and (3)  based on the existing evidence,  reasonable  doubt
existed as to whether the applicant engaged in actions which  amounted
to adultery.

_________________________________________________________________

AIR FORCE EVALUATION:

The Quality Force and Commander’s Program Branch, AFPC/DPSFC, reviewed
this application and recommended denial.  According to DPSFC, the  use
of the LOR by commanders and supervisors is an exercise of supervisory
authority and responsibility.  The LOR is used  to  reprove,  correct,
and instruct subordinates who depart from acceptable norms of  conduct
or behavior, on or off duty, and helps maintain established Air  Force
standards of conduct or behavior.  The LOR automatically establishes a
UIF for officer personnel.  The LOR is  not  required  to  be  legally
sufficient.  It is a tool for commanders and supervisors to reprove or
instruct subordinates.  In DPSFC’s view, they are not in the  business
of assessing a commander’s decision making  authority  when  assigning
administrative actions to subordinates.

A complete copy of the DPSFC evaluation is at Exhibit C.

The Staff Judge  Advocate,  AFPC/JA,  reviewed  this  application  and
recommended denial.  According to JA, the  Supreme  Court  and  Claims
Court have repeatedly made it clear that where  an  executive  officer
enjoys broad discretionary power, and in the absence of evidence  that
an action is arbitrary,  capricious,  or  unsupported  by  substantial
evidence,  a  judicial  tribunal  may  not  review  his  decision  and
substitute its judgment for his.  In JA’s opinion, the commander acted
properly and there was no abuse of discretion.

A complete copy of the JA evaluation, with attachment, is  at  Exhibit
D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his detailed response, the applicant  indicated  that  he  believes
that the LOR/UIF represented the government’s attempt to “save  face.”
In his view, to have been given an LOR/UIF two years after the alleged
misconduct,  and  after  having  received  two   outstanding   Officer
Performance Reports (OPRs) and having  been  married  for  almost  two
years to the woman with whom he is accused of having an illegal sexual
relationship, was insane.  He  met  his  wife  in  church  and  became
acquaintances.  After she left her husband and filed for divorce, they
became friends.  They fell in love, got married, and had  a  beautiful
baby girl.  The relationship was not sexual until after his  wife  was
divorced.  He did not see anything wrong with his behavior then and he
doesn’t see anything wrong with it now.  He has not violated any  laws
or instructions.

Applicant’s complete response and additional documentary evidence  are
at Exhibit F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  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.   The  evidence  of  record
reflects that the applicant received an LOR for being involved  in  an
inappropriate and unprofessional  relationship  with  the  wife  of  a
subordinate member of the Air Force.  It appears that  the  basis  for
the LOR was the unsubstantiated allegation that the  applicant  had  a
sexual encounter with his current spouse while she was  still  married
to the other individual.  After reviewing the available evidence,  the
Board majority finds substantial  doubt  has  been  created  that  any
inappropriate or unprofessional encounter occurred.  In  view  of  the
potentially  harmful  consequences  of  the  subject  actions  on  the
applicant’s career, the Board majority firmly believes that  the  ends
of justice would best be served by resolving any doubt in this  matter
in favor of the applicant.  Accordingly, the Board recommends that 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  the  Letter  of
Reprimand, dated 8 Apr 97, Unfavorable Information File (UIF), and any
and all documents and references pertaining thereto, be declared  void
and removed from his records.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 3 Nov 98, under the provisions of AFI 36-2603:

      Ms. Rita S. Looney, Panel Chair
      Mr. Steven A. Shaw, Member
      Mr. Patrick R. Wheeler, Member

Mr. Shaw and Mr. Wheeler voted to correct the records, as recommended.
 Ms. Looney abstained from  consideration  of  the  application.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 7 Oct 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPSFC, dated 29 Oct 97.
     Exhibit D.  Letter, AFPC/JA, dated 25 Nov 97.
     Exhibit E.  Letter, SAF/MIBR, dated 8 Dec 91.
     Exhibit F.  Letter, applicant, dated 12 Dec 97, w/atchs.




                                   RITA S. LOONEY
                                   Panel Chair



AFBCMR 97-03020




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:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT be corrected to show that the Letter of
Reprimand (LOR), dated 8 Apr 97, Unfavorable Information File (UIF),
and any and all documents and references pertaining thereto, be, and
hereby are, declared void and removed from his records.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency