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


IN THE MATTER OF:                       DOCKET NUMBER: 98-00567
                                        INDEX CODE:  131.09
    APPLICANT                           COUNSEL:  None

    XXX XX XXXX                   HEARING DESIRED:  Yes

_________________________________________________________________

RESUME OF CASE:

In a appeal dated 16 February 1998, the applicant requested  that  his
promotion to the grade of colonel by the Calendar Year  1994A  (CY94A)
Colonel Selection Board be reinstated with a date of rank (DOR)  of  1
May 1995.  His name had been removed from the CY94A promotion list  by
direction of the Secretary of the Air Force (SAF) on 6 July  1996  for
dereliction  of  duties  in  his  attention  to  a  sexual  harassment
complaint, inappropriate handling of the sexual harassment  complaint,
and failure to  promptly  correct  the  victim’s  record  to  properly
reflect  her  reasons  for  resigning  from  the  Enlisted  Club.  The
applicant was also removed from  command  and  received  a  Letter  of
Reprimand (LOR) for  dereliction  of  duty  and  for  demonstrating  a
failure of leadership by not giving appropriate attention and  serious
treatment to a sexual harassment complaint.

On 17 November 1998, the Board  concluded  that,  while  the  LOR  was
appropriate, the applicant’s removal from the promotion list  was  too
harsh. The Board  recommended  the  applicant  be  reinstated  to  the
selection list and promoted to the grade of colonel effective and with
a DOR of 1 May 1995. A complete copy  of  the  Record  of  Proceedings
(ROP) is attached at Exhibit F.

The ROP was signed by the  Panel  Chair  and  then  forwarded  to  the
Director of the Air Force Review Boards  Agency  (SAF/MIB).   However,
when SAF/MIB reviewed the case, it was discovered that the  Board  did
not have access  to  the  complete  promotion  propriety  file  (PPF).
Therefore, SAF/MIB directed the entire file be obtained and the  Board
be afforded the opportunity to review  the  additional  documentation.
SAF/MIB’s letter is provided at Exhibit G.

The entire PPF was received on 29 January 1999,  and  is  provided  at
Exhibit H.

For informational purposes, the court case  of  Sawyer  v.  US,  which
defines an injustice (or “in the interest of justice”),  beginning  at
the bottom of page 9, is provided at Exhibit I.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable injustice to recommend, once  again,   that  the
applicant’s promotion to colonel be reinstated. We are  acutely  aware
of the political sensitivity involved in recommending a  former  SAF’s
decision be overturned; however, after  careful  examination  of  this
case, including the  entire  PPF,  we  believe  the  original  Panel’s
decision should stand. Several aspects of this case  compelled  us  to
reach this conclusion.

First and foremost, the applicant was not the sexual harasser; yet  he
was punished as if he was. Had it been established that the  applicant
himself was guilty of harassment, or conspired to cover up a  case  of
substantiated harassment, then removing his name  from  the  promotion
list would have been absolutely warranted. The applicant  did  neither
of these things.  What he did do was rely too heavily on his managers,
particularly the Flight Chief, in handling the situation.

The evidence clearly indicates the victim had rejected the  advice  of
both the Social Actions (SA) Superintendent  and  the  office  of  the
Inspector of Complaints  that  she  present  her  case  to  the  Equal
Employment Opportunity (EEO) counselor. At the time she  preferred  to
keep  the  complaint  “in-house.”  As  a  result,  her  complaint  was
presented to the applicant. According to the statement from the former
Chief of SA, “Allowing the unit to investigate allegations  of  sexual
harassment was then and still is allowed under SA directives.” The  SA
Superintendent told the Inquiry Officer (IO) that, in military  cases,
the squadron commander has the  option  to  perform  clarification  of
allegations. The applicant had been advised that the  victim  did  not
want to pursue her allegation  through  EEO  channels.  Therefore,  to
accommodate her wishes  and  after  the  SA  Superintendent  discussed
available options, the applicant elected to have the Flight Chief, who
had  performed  other  investigations,  conduct  an  inquiry.  The  SA
Superintendent relied on the statements collected by the Flight  Chief
and concurred with the Chief’s finding of no sexual harassment.  While
the SA office did not conduct the inquiry, it did assist in  preparing
the letter of findings and the Letter of Admonishment  (LOA).  The  SA
Superintendent informed the IO that the applicant did not concur  with
the findings or the LOA and kicked it back. At the second  finding  of
no sexual harassment, the applicant approved the  LOA.  The  SA  Chief
reviewed and approved the actions taken on this complaint.

Initially, the unit may have sincerely believed the situation was more
one  of  inappropriate  supervisory  behavior   rather   than   sexual
harassment and treated it as such. However, the IG’s substantiation of
the  victim’s  sexual  harassment   complaint   and   the   subsequent
investigation into the applicant’s alleged abuse
of  authority  put  the  Flight  Chief  in   a   questionable   light.
Nevertheless, the evidence would suggest there was no motive  for  the
applicant to falsify the victim’s resignation form in  an  attempt  to
cover up allegations of sexual harassment.  The fact that  the  victim
resigned  due  to  sexual  harassment  had  already  been  proven  and
published to all the primary players. The IO  determined  that,  while
the applicant poorly  handled  the  victim’s  concerns  regarding  her
resignation  form,  no  intentional   mishandling   or   falsification
occurred.

We note the Commander,  who  issued  the  LOR,  and  the  Staff  Judge
Advocate (SJA) believed the applicant had  been  punished  enough  and
recommended against his name being removed from the promotion list. In
fact, this case is  unusual  in  that  the  local  commander  did  not
initiate the promotion removal action. The SJAs for  HQ  AETC  and  HQ
USAF argued essentially that, if the applicant had to be removed  from
command,  he  could  not  have  the  potential  for  assuming  greater
responsibility. However, at the time this situation  occurred,  highly
publicized incidents of sexual  harassment  within  the  military  had
created an environment of heightened political correctness and command
involvement in such cases. The applicant’s removal  as  the   Services
Squadron commander, while also harsh, may be viewed as an  attempt  by
leadership to “send a message” regarding sexual harassment.  We  agree
that sexual harassment complaints should  be  seriously  investigated,
and substantiated harassment should not be  tolerated.  The  applicant
had already proven himself as an  outstanding  commander  in  previous
assignments and he initially thought he  was  acting  responsibly  and
appropriately.  Every  commander  delegates  a  good  portion  of  his
organization’s functions to subordinate agents and, at the  time  this
incident occurred, the applicant had no reason to think  his  reliance
on his managers was misplaced. Hindsight, of course, proves otherwise.
 However, we believe this incident does not overcome  the  applicant’s
already demonstrated potential and that, today, he probably would  not
have been hammered to the extent that he was.

In conclusion, we sincerely believe the punishment in this  case  does
not fit the offense. Surely if the level of accountability in  today’s
Air Force does not equate to “one mistake and you’re  finished,”  then
the  applicant’s  promotion  should  be  restored,  and  this  we   so
recommend.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.  He was not removed from the list of officers selected by the
Calendar Year 1994A Colonel Selection Board.

      b.  He was promoted to the grade of colonel effective and with a
date of rank of 1 May 1995.

_________________________________________________________________

The original Panel Chair retired shortly after signing the ROP. One of
the original members  has  since  been  elevated  as  a  Panel  Chair,
requiring  the  addition  of  a  substitute  member  for  this  second
deliberation.   Therefore,  the  following  members   of   the   Board
reconsidered this application  in  Executive  Session  on  16 February
1999, under the provisions of AFI 36-2603:

                 Mr. Henry Romo Jr., Panel Chair
                 Dr. Gerald B. Kauvar, Member
                 Ms. Patricia D. Vestal, Member

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

   Exhibit F.  Record of Proceedings, undated, w/atchs
   Exhibit G.  SAF/MIB Letter, undated.
   Exhibit H.  Propriety Promotion File.
   Exhibit I.  Sawyer v. US, dated 1 Dec 89.




                                   HENRY ROMO JR.
                                   Panel Chair


AFBCMR 98-00567




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, XXX XX XXXX, be corrected to show that:

           a.  He was not removed from the list of officers selected
by the Calendar Year 1994A Colonel Selection Board.

           b.  He was promoted to the grade of colonel effective and
with a date of rank of 1 May 1995.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-00567
                                        INDEX CODE:  131.09

APPLICANT        COUNSEL:  None

      XXX XX XXXX      HEARING DESIRED:  Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

His promotion to the grade of  colonel  by  the  Calendar  Year  1994A
(CY94A) Colonel Central Selection Board be reinstated with a  date  of
rank (DOR) of 1 May 1995.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His actions were based on good faith and the  “guidance”  he  received
from Social Actions (SA) and others. He did not direct that the reason
for the  victim’s  resignation  [sexual  harassment]  be  changed.  In
hindsight, it is clear he made mistakes in how he handled the  [sexual
harassment] case. On the other hand, removing him from  the  promotion
list and the resultant loss of huge sums of money on active duty  now,
and in retirement later, seems disproportionate to the gravity of  his
failings. He was held out as an example of what happens to people  who
don’t perform perfectly in the nettlesome and still developing area of
sexual harassment.  Also, he was not  given  fair  notice  about  what
supporting reasons [a Letter of Reprimand (LOR) and his  removal  from
command] were being held against him in the promotion removal  process
and therefore he was prevented from properly defending himself against
these supporting reasons. He asks if his mistake should be this costly
and did he really handle this one situation so poorly that  it  merits
the loss of a promotion gained through over 20 years  of  consistently
superior service.

In support, he provides a 7-page brief with 16 attachments,  including
statements from the former SA Chief (Atch 1), the Assistant  Inspector
General (IG) (Atch 3), the general who issued the LOR  (Atch  6),  and
the  Support Group commander (Atch 9); an  Air  Force  policy  message
(Atch 13); and the Report of Inquiry (ROI) (Atch 14).

A copy of applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving on extended active duty in the grade of
lieutenant colonel.

During the period in question, applicant  was  the  commander  of  the
Services Squadron at AFB.

On 12 October 1993, a  nonappropriated  fund  (NAF)  employee  in  the
Enlisted Club (the victim) went to SA and complained that  the  club’s
night manager, a civilian who was not  her  supervisor,  was  sexually
harassing her. She was advised  by  the  SA  Superintendent  that  she
should submit her complaint through the Equal  Employment  Opportunity
(EEO) office; however, the victim apparently wanted to use SA channels
and refused to go to EEO. The case was referred to  the  applicant  by
the SA Superintendent on 20 October 1993. The applicant appointed  the
Flight Chief to conduct the investigation.  On 3  November  1993,  the
Flight Chief  and  the  SA  Superintendent  opined  that  the  alleged
harassment could not be verified. The applicant apparently  authorized
that the night manager be given a letter of  admonishment  (LOA).  The
victim was not satisfied with the findings and on 30 November 1993 she
filed a complaint with the IG and decided to resign. On 24 March 1994,
the IG substantiated the victim’s allegation of sexual harassment.

Applicant was considered  and  selected  by  the  CY94A  Colonel  Line
Central Selection Board on 11 July 1994.

On 21 July 1994, the victim and her husband requested applicant’s help
in correcting an AF Form 2548  (NAFI  Request  for  Personnel  Action)
and/or an AF Form 2545 (NAFI  Notification  of  Personnel  Action)  to
reflect  that  her  reason  for  resigning  was   sexual   harassment.
Apparently,  the  victim’s  original  handwritten  AF  Form  2548  had
indicated she was resigning because of sexual harassment;  however,  a
typed AF Form 2548 and the AF Form 2545 did not include a  reason  for
her resignation. On 15 September 1994, the couple subsequently went to
the  Support Group Deputy Commander, who directed  that  the  AF  Form
2545 be corrected.

An investigation into applicant’s alleged abuse of  command  authority
by influencing falsification of an employee resignation  was conducted
during 19  September-15  October  1994.  According  to  the  ROI,  the
following  findings  were  made:  1)  No  intentional  mishandling  or
falsification  of  the  victim’s   resignation   form   occurred;   2)
Applicant’s  handling  of  victim’s  request  to  have  the   official
paperwork accurately reflect her reason for resignation was poor;  and
3)  Leadership  failed  to  take  action  and  apply  the  appropriate
attention to the matter once the problem had surfaced.

On 17 October 1994, the  Fighter Wing commander gave the applicant  an
LOR for dereliction of duty in  that  he  “did  not  give  appropriate
attention to,  nor  treat  seriously  enough,  the  sexual  harassment
complaint of” the victim.  The  commander  added  that  the  applicant
demonstrated a failure of leadership.

Applicant was advised by  letter  dated  10  February  1995  that  the
commander of the  Air Force  ,  Air  Education  and  Training  Command
(AETC), was recommending that his name be removed from  the  promotion
list to colonel. Reasons cited were applicant’s dereliction of duty in
not giving appropriate attention to, nor  treating  seriously  enough,
the victim’s sexual harassment complaint;  inappropriately  appointing
an internal investigator who lacked the expertise to conduct  such  an
inquiry; allowing that same investigator to impose punishment  on  the
offender; failing to ensure that punishment imposed  on  the  offender
was  appropriate;  failing  to  ensure  that  the  punishment  imposed
including a finding that the offender had committed sexual harassment;
and failing to  promptly  correct  the  victim’s  record  to  properly
reflect her  reasons  for  resigning  from  the  Enlisted  Club.   The
notification letter does not mention the LOR in its text, but it lists
the LOR as an attachment.

Applicant  acknowledged  receipt  of  the   notification   letter   on
20 February  1995,  and  submitted  a  statement  in  his  behalf   on
27 February 1995.

On 27 February 1995, the CC asked that the CC reconsider the promotion
removal, indicating that his intent in reprimanding the applicant  and
removing him from command was to send a clear message regarding sexual
harassment investigations/actions. He added  he  considered  promotion
propriety action but felt it was not appropriate based on  applicant’s
outstanding career and potential.  However, on 7 March  1995,  the  CC
determined that in light of the whole series of inappropriate  actions
and omissions, which the CC found warranted reprimand and removal from
command, he was forwarding his recommendation [for removal].

On 6 July 1995, the Secretary of the  Air  Force  (SAF)  directed  the
applicant’s name be removed from the CY94A promotion  list.  Applicant
was so advised on 21 August 1995 by the CC.
_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Officer Promotion  &  Appointment  Branch,  HQ  AFPC/DPPPO,
reviewed the appeal and states that formal rules of  evidence  do  not
apply to a promotion propriety action, the LOR  was  appropriate,  the
applicant was given sufficient opportunity to respond to  the  removal
action, the CC made it clear by listing the LOR as an attachment  that
it was part of the removal
package, and the CC presented no new information in his  7 March  1995
memo to the CC. Denial is strongly recommended.

A copy of the complete Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the evaluation and indicated that the  advisory  is
incomplete and misleading.  His plea is based principally on the  idea
that taking away his promotion was a disproportionate response to  the
gravity  of  his  failings  in  “officiating”  the  sexual  harassment
complaint. He did no more than follow the guidance  of  the  so-called
experts at his base, to his detriment. The advisory  opinion  mentions
only the LOR issue; it gives no treatment whatsoever  to  the  removal
action. He provides an allegorical tale to clarify  his  circumstances
and the nature of his appeal. He asks for justice.

Applicant’s complete response is at Exhibit E.

_________________________________________________________________

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  to  warrant  restoring
applicant’s name to the CY94A selectee list. We note  the  victim,  at
least initially, clearly  wanted  an  internal  rather  than  external
investigation, and  the  SA  office  advised  the  applicant  that  an
internal investigation was appropriate. The Flight Chief  and  the  SA
office  also  informed  him  that  the  results  of   their   internal
investigation did  not  corroborate  sexual  harassment.  As  for  the
victim’s resignation form, the IG  investigation  determined  that  no
intentional mishandling or falsification of  that  document  occurred.
The applicant did err in not giving  this  situation  his  appropriate
attention. He should have provided more command involvement to  ensure
the victim’s complaint was properly and aggressively investigated  and
her resignation form was corrected. Therefore, we  are  not  persuaded
that the LOR was an abuse of the commander’s discretionary  authority.
Nevertheless, the available evidence also demonstrates he  [applicant]
harbored no  ulterior  motive  and  relied,  albeit  erroneously,  too
completely on his subordinates. Essentially, he acted in  good  faith.
We believe  this  mitigating  factor  renders  his  removal  from  the
promotion list as somewhat harsh. The applicant  has  clearly  learned
from his mistakes and we  are  confident  he  will  not  repeat  them.
Depriving  him  of  his   promotion   would   be   a   permanent   and
disproportionate  form  of  punishment   for   misplaced   trust   and
assumptions. Therefore, we  recommend  his  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.  He was not removed from the list of officers selected by the
Calendar Year 1994A Colonel Selection Board.

      b.  He was promoted to the grade of colonel effective and with a
date of rank of 1 May 1995.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 17 November 1998, under the provisions of AFI 36-
2603:

                  Mr. Henry C. Saunders, Panel Chair
                  Dr. Gerald B. Kauvar, Member
                  Mr. Henry Romo Jr., Member

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

   Exhibit A.  DD Form 149, dated 16 Feb 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPO, dated 6 May 98.
   Exhibit D.  Letter, AFBCMR, dated 18 May 98.
   Exhibit E.  Letter, Applicant, dated 29 May 98.




                                   HENRY C. SAUNDERS
                                   Panel Chair