ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER: 97-01581
                                        INDEX 126.04 107.00 111.05
                                        COUNSEL: Michael J. Gaffney

                                        HEARING DESIRED:  No

_________________________________________________________________

RESUME OF CASE:

In his original appeal, the  applicant  requested  that  the  referral
Officer Performance Report (OPR) closing 13 April 1994 be removed, the
13 May 1994 Article 15 be set aside, and he be awarded the Meritorious
Service Medal (MSM) previously denied him.

His case was considered and denied in  Executive  Session  on  2 April
1998.  A copy of the Record of Proceedings (ROP),  with  Exhibits,  is
attached at Exhibit G.

The applicant has since retained counsel, who requests reconsideration
based on the Board’s reliance on allegedly flawed  advisory  opinions.
Counsel argues that the Article 15 should be  set  aside  because  the
Board relied on a defective legal advisory  opinion  and  because  new
evidence  establishes  that  the  21  March  1994   meeting   involved
privileged  confidential  communications  with   clergy   which   were
improperly disclosed. Counsel also asserts that  the  OPR  closing  13
April 1994 violated paragraph 1.7.d. of  AFR  36-10  by  referring  to
disputed information from an investigation not completed  until  after
the OPR close-out date. Counsel further requests that  his  client  be
given SSB consideration if not selected for promotion [to  major]  and
the Board decides to void the contested OPR,.

Counsel’s complete reconsideration request is at Exhibit H.

The ROP did reflect the correct date (21 March 1994)  of  the  meeting
with the rater, additional rater, the applicant and his  wife  in  the
Statement of Facts section, and also indicated in the summary  of  the
legal evaluation that  the  pertinent  date  used  in  the  AFLSA/JAJM
advisory (21 May 1994) was incorrect.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

The Deputy Chief,  Military  Justice  Division,  AFLSA/JAJM,  reviewed
counsel’s contentions with respect to the Article 15 and provides  his
evaluation of why,  aside  from  its  clerical  errors,  the  original
advisory opinion’s legal conclusions  and  recommendations  are  still
valid and supported by the facts and evidence. The  applicant  claimed
no unauthorized disclosure  of  confidential  information  during  the
original inquiry and presented no evidence that his wife intended  her
request of [the rater] to have the applicant removed from the house to
be a confidential communication. Even  if  the  initial  conversations
were privileged, the applicant and his wife provided  information  not
covered by the privilege when they agreed to provide  a  statement  to
the inquiry officer.  The commander did not abuse his discretion  when
imposing Article 15 nonjudicial punishment, which was not  too  severe
for the offense committed. The author concludes  there  are  no  legal
errors requiring corrective action and no relief is warranted.

A complete copy of the evaluation is at Exhibit I.

The Chief, Evaluation Programs Branch, HQ  AFPC/DPPPE,  also  reviewed
the case  with  respect  to  the  OPR.  The  author  opines  that  the
AFLSA/JAJM discussion is relevant and applicable to the OPR issue. The
author provides a chronology of events to show how he arrived  at  his
recommendation of denial. Regardless of the “intent” of AFR 36-10,  it
does allow evaluators to consider  information  “obtained  from  other
sources.” As the chronology shows, the  information  included  in  the
report by the additional rater was obtained from  the  spouse  of  the
applicant, through the rater of the report, prior to initiation of the
investigation. Since this  information  was  not  the  subject  of  an
investigation when it became known to  the  evaluators,  there  is  no
violation of [AFR] 36-10. Further, counsel’s allegation  regarding  an
extension of the OPR’s close-out  date  is  inaccurate.  Requests  for
extensions to OPR close-out dates pertain only  to  “annual”  reports;
the contested OPR was “directed by the commander.” Close-out dates for
these type  of  reports  are  established  by  the  commander.   Since
counsel’s contentions  are  unsubstantiated,  the  request  should  be
denied.

A complete copy of the evaluation is at Exhibit J.

The Chief, Appeals & SSB Branch, HQ  AFPC/DPPPA,  indicates  that  the
information the additional rater  included  in  his  comments  on  the
contested report was revealed by the applicant and his spouse prior to
the initiation of the investigation. Therefore it could be included in
the report. The applicant has been provided due process  and  has  not
provided newly discovered relevant evidence  that  was  not  available
when the appeal was previously considered. The author does not support
removing the contested OPR.

A complete copy of the evaluation is at Exhibit K.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATIONS:

Counsel rebutted the evaluations, indicating that the real issues here
are  the   unauthorized   disclosures   of   privileged   confidential
communications with clergy by the additional rater  that  led  to  the
Article 15 and illegal OPR. There was privileged communication  before
the rater discussed the situation with the additional rater, who  then
wrongfully disclosed privileged matters to the  reviewer.  Nothing  in
the applicant’s wife’s affidavit indicates she contacted the rater “in
his capacity as her  husband’s  supervisor  to  arrange  to  have  her
husband move out of the house” as suggested by the AFLSA opinion.  The
sequence of events and other facts are corroborated by a 28 July  1999
Declaration from a  minister  and  now  retired  Army  colonel,  which
constitutes new evidence. The supervisory  chaplain  or  minister  who
learns a privileged matter from another chaplain or minister  may  not
disclose  the  confidential  communication  unless  the   person   who
originally made the confidential  communication  gives  permission  to
disclose it to someone else. If the additional rater were acting in  a
supervisory capacity during the Monday meeting he should have informed
the applicant of that rather than counseling him and his wife,  If  he
were acting in a supervisory capacity,  there  was  no  need  for  the
applicant’s wife to be present for a senior  officer  meeting  with  a
subordinate. Finally, if  the  additional  rater  were  acting  in  an
investigative capacity with the applicant as a suspect, he should have
advised the applicant of his Article 31 rights. Counsel  explains  why
he contends the AFLSA advisory is wrong when  it  concludes  that  the
commander had  sufficient  evidence  to  punish  the  applicant  under
Article 15 before the alleged error occurred. Regarding the  OPR,  the
additional  rater’s  ability  to  available  information  from  “other
sources” related directly to his  improper  disclosure  of  privileged
confidential information. Under these circumstances, use of the “other
sources” exception should not be permitted  to  evade  the  protective
intent of paragraph 1-7d of AFR 36-10. The  Article  15  and  the  OPR
should be voided.

Counsel’s complete rebuttal, with Declaration, is at Exhibit M.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

After a thorough review of the  evidence  of  record  and  applicant’s
latest submission, we are not persuaded that relief is warranted.  The
applicant does not dispute that he committed the offense in  question,
and the chronology shows the information included in the contested OPR
by the additional rater was obtained from the spouse of the applicant,
through  the  rater  of  the  report,  prior  to  initiation  of   the
investigation. The applicant has not provided persuasive evidence that
the communications between both chaplains, himself, and his wife  were
privileged communications. Even  if  the  initial  conversations  were
privileged, which we are not convinced they were, the applicant agreed
to be interviewed by the inquiry officer and provided his side of  the
story. He and  his  wife  provided  information  not  covered  by  the
privilege when they agreed to  provide  a  statement  to  the  inquiry
officer.  The  applicant  claimed  no   unauthorized   disclosure   of
confidential information during the original inquiry, and presented no
evidence that his wife intended her request to have him  removed  from
the house to be confidential information. Inasmuch  as  the  applicant
has failed to sustain his burden that he has suffered either an  error
or an injustice, we find no compelling basis to overturn the  original
recommendation for denial.

_________________________________________________________________

THE BOARD 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 26 August 1999, under the provisions of  AFI  36-
2603:

                  Mr. David C. Van Gasbeck, Panel Chair
                  Dr. Gerald B. Kauvar, Member
                  Mr. Gregory H. Petkoff, Member

The following documentary evidence was considered:

   Exhibit G.  Record of Proceedings, dated 26 May 98, w/atchs.
   Exhibit H.  Applicant's Letter, dated 7 Oct 98, w/atchs.
   Exhibit I.  AFLSA/JAJM Letter, dated 3 Feb 99.
   Exhibit J.  HQ AFPC/DPPPE Letter, dated 10 May 99.
   Exhibit K.  HQ AFPC/DPPPA Letter, dated 1 Jun 99.
   Exhibit L.  AFBCMR Letter, dated 21 Jun 99.
   Exhibit M.  Counsel’s Letter, dated 30 Jul 99, w/atchs.




                                   DAVID C. VAN GASBECK
                                   Panel Chair