RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00328
                 INDEX CODE:  111, 126

                 COUNSEL:  ROBERT E. WATSON

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Article 15,  Record  of  Nonjudicial  Punishment,  imposed  on
7 October 1996, be removed from his records.

2.  The Enlisted Performance Report (EPR),  rendered  for  the  period
1 November 1995 through 31 October 1996, be declared void and  removed
from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The allegations contained in the Article 15 are not supported  by  law
or fact.  The referral EPR is  based  on  the  defective  Article  15.
Applicant’s counsel states that considering the factors referred to in
AFI 36-2909, with regard to dereliction of duty, it is clear that  the
applicant was not derelict in his duties.  The (personal) relationship
[for which the applicant received the  Article  15],  simply  did  not
detract from the authority of superiors.  For  the  same  reasons  the
relationship did not result in, or reasonably create the appearance of
favoritism or misuse of office or position.  The applicant’s  conduct,
concerning adultery, was not prejudicial to good order and  discipline
in the armed forces and the conduct was  not  of  a  nature  to  bring
discredit upon the armed forces.  For the reasons set forth above, the
allegations are not legally supported.

In support of his appeal, applicant submits Article  15  documentation
which was placed  in  his  Noncommissioned  Officer  (NCO)  folder,  a
request for mitigation of the Article 15, EPRs  and  response  to  the
referral EPR.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving in the Regular Air Force in  the  grade
of technical sergeant.

On 20 September 1996, applicant, while serving in the grade of  master
sergeant, was notified of his commander’s intent to impose nonjudicial
punishment upon him for violation of  the  Uniform  Code  of  Military
Justice (UCMJ):  (1) Article  92,  dereliction  of  duty  -  while  on
temporary duty at or near Dhahran, Saudi Arabia, from on  or  about  1
January 1996 to on or about 1 February 1996, and  while  on  permanent
duty at or near Seymour Johnson Air Force Base (AFB),  North  Carolina
(NC), from on or about 1 February 1996  to  on  or  about  1 September
1996, by willfully engaging in an unprofessional,  intimate,  personal
and sexual relationship with a Senior Airman, a married woman, who was
an airman he supervised in Dhahran, Saudi Arabia, and who was  in  his
squadron at Seymour Johnson AFB, NC;  (2) Article 134, adultery  -  at
or near Dhahran, Saudi Arabia and at or near Seymour Johnson  AFB,  on
divers occasions, between on or about 1 January 1996 and on  or  about
1 September 1996, wrongfully have sexual  intercourse  with  a  Senior
Airman, a married woman not his wife.  The applicant  acknowledged  he
understood his rights concerning nonjudicial  punishment  proceedings;
that he had consulted a lawyer; that he waived  his  right  to  court-
martial and accepted nonjudicial proceedings under Article  15,  UCMJ;
and, that he requested a personal appearance before his commander  and
submitted a written presentation.

On 7 October 1996, after considering the matters presented in defense,
mitigation, or extenuation, the commander  found  that  applicant  had
committed one or more of the offenses alleged and  imposed  punishment
which consisted of reduction  to  the  grade  of  technical  sergeant,
forfeiture of $945.00 pay and  a  reprimand.   Applicant  acknowledged
receipt of the  Article  15  action  and  of  his  rights  to  appeal.
Applicant was also informed, on 9 October  1996,  of  the  commander’s
decision to file the Article 15 in  an  Unfavorable  Information  File
(UIF).  The record was found legally sufficient by the Judge  Advocate
(JA) on 9 October 1996.  The applicant did not appeal the  punishment.


The applicant did not file a  similar  appeal,  to  void  the  EPR  in
question, under AFI 36-2401 as would be appropriate.  AFPC/DPPPAB  did
not return  the  application  because  the  applicant  does  not  have
evaluator support, as required by AFI 36-2401.

Applicant’s EPR profile is as follows:

          PERIOD ENDING            OVERALL EVALUATION

            25 Jun 90                     4
            25 Jun 91                     5
            25 Jun 92                     5
            25 Jun 93                     5
            28 Jan 94                     5
            28 Jan 95                     5
            31 Oct 95                     5
         *  31 Oct 96                     2 (Referral Report)
            23 Apr 97                     5
            23 Apr 98                     5

* Contested report

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate  Chief,  Military  Justice  Division,  Air  Force  Legal
Services Agency, AFLSA/JAJM, states that  they  note  that,  with  the
advice of a military defense counsel, the applicant  elected  to  have
his commander adjudicate this matter.  The applicant could have turned
down the Article 15 action and required the Government  to  prove  the
charges beyond a reasonable doubt at  a  court-martial.   Instead,  he
chose to present his defense to his commander in a nonjudicial  forum.
The  commander,  exercised  the  discretion  entrusted  to  him  as  a
commander in determining that the applicant was guilty of the  charge.
He also imposed punishment he believed was appropriate for the  crime.
Applicant’s counsel is mistaken in concluding  that  the  offenses  in
this case are not legally supported.  The charges  of  dereliction  of
duty and adultery constitute legitimate offenses under  the  UCMJ  and
are factually supported in this case.

The  applicant  had  a  duty  under  AFI  36-2909,  Professional   and
Unprofessional  Relationships,   to   refrain   from   developing   an
unprofessional relationship with any other military  member.   As  the
applicant’s counsel notes, AFI 36-2902,  paragraph  2.2  states  that:
“Relationships are unprofessional, whether  pursued  on  or  off-duty,
when they detract from the authority of superiors  or  result  in,  or
reasonably create the appearance of, favoritism, misuse of  office  or
position, or the abandonment  of  organizational  goals  for  personal
interests.”

Counsel claims that because the applicant  was  not  in  the  airman’s
supervisory chain (except for the time they spent  deployed  to  Saudi
Arabia, when apparently he was her supervisor), their affair  did  not
“detract from the authority of superiors.”  Although it is  not  clear
from the record when the applicant supervised his paramour,  the  fact
that  the  applicant  began  this  unprofessional  relationship  while
deployed to an area of imminent danger is an aggravating factor, not a
mitigating factor.  Apart from the aspect of aggravation, however, the
question of the applicant’s supervisory status is legally  irrelevant.
Anyone with military experience understands the significant difference
between a non-commissioned officer (NCO) and an airman.  The  inherent
responsibility and authority given to the  applicant  as  an  NCO,  by
itself, sets him apart from all lower-ranking individuals.

Counsel’s next point that “no one was aware of the relationship  while
the pair was in Saudi Arabia so  no  “appearance”  issue  existed”  is
misleading.  However, the  charged  misconduct  includes  events  that
transpired well beyond the applicant’s return from the  Persian  Gulf.
It is clear from the applicant’s statement  that  “when  I  was  first
notified of the perceptions and rumors that were going on about myself
and SrA B---, I had no idea how damaging  they  had  become”  that  he
realized that  personnel  in  the  unit  were  aware  of  his  special
relationship with an airman in the unit.  If counsel’s point  is  that
the applicant’s misconduct only became obvious after he returned  from
his  deployment,  the  argument  is  misplaced.    An   unprofessional
relationship is improper anywhere it happens.  It is  also  irrelevant
if the applicant mistakenly believed that once  he  was  approved  for
cross-training and the airman was  assigned  to  another  unit,  their
relationship could continue unabated.

The applicant not only created the appearance of  an  unusually  close
personal relationship with an airman in  his  unit,  he  actually  had
sexual relations with her at which time she  was  married  to  someone
else.  That constitutes adultery for both of them.

At one  time,  the  applicant  believed  that  the  affair  negatively
impacted  the  unit.   Most  importantly,  the  applicant’s  commander
determined that the adultery impacted the unit.  It is hard to  follow
counsel’s logic that prejudice  to  the  unit  occurs  when  a  member
commits adultery with the spouse of another military member,  but  not
when the member commits adultery with another member of the same unit.


Finally, the applicant’s attorney minimizes the discrediting nature of
the applicant’s adultery.  He implies that  the  applicant’s  adultery
was not objectionable  because  the  airman  was  separated  from  her
husband in anticipation of a divorce when the affair occurred.

It is  clear  that  the  applicant  continues  to  disagree  with  his
commander’s  findings  and  decision  on  punishment.   However,   the
applicant’s reluctance to accept the consequences  of  his  misconduct
does not constitute “sufficient evidence of probable material error or
injustice.”  On the contrary, the record contains more  than  adequate
evidence that the applicant committed the misconduct  giving  rise  to
the Article 15, that the referral EPR  accurately  reflects  the  same
misconduct, and that the applicant’s commander properly exercised  his
authority in this case.  Recommend the applicant’s request be  denied.


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


The Chief, Inquiries/AFBCMR Section,  Enlisted  Promotion  &  Military
Testing Branch, HQ AFPC/DPPPWB, states that the applicant’s punishment
consisted of  a  reduction  from  the  grade  of  master  sergeant  to
technical sergeant with a date of rank and effective date of 7 October
1996.  AFPC/DPPPWB defers to the AFLSA/JAJM recommendation.   However,
if the Board voids the Article 15 or removes the reduction as part  of
the punishment, the effective date of rank to  master  sergeant  would
revert to the original date of 1 May 1993.

Concerning the Enlisted Performance Report  (EPR)  closing  31 October
1996, providing the applicant is otherwise eligible,  the  first  time
the contested report will  be  considered  in  the  promotion  process
(provided it is not voided) is cycle 99E7 to master sergeant.

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

The Chief, BCMR and SSB Section, AFPC/DPPPAB, states  that  Air  Force
policy is that an evaluation report is accurate  as  written  when  it
becomes a matter of record.  To effectively challenge an  EPR,  it  is
necessary to hear from all the members of the  rating  chain—not  only
for support, but for  clarification/explanation.   The  applicant  has
failed to provide any information/support from the rating chain on the
contested EPR.  AFPC/DPPPAB has no doubt of  the  applicant’s  stellar
duty performance  throughout  the  reporting  period.   The  applicant
engaged in an unprofessional relationship, which  caused  problems  in
the workplace, and hampered the morale of his  “team.”   Additionally,
he carried that unprofessional relationship a step further and engaged
in adultery with a married subordinate.  This blatant violation of not
only Air Force standards, but the Uniform  Code  of  Military  Justice
(UCMJ), sets a poor example to those he supervised.  His rater  admits
in a memorandum included  in  the  Article  15  package,  “I  have  no
problems with the way he (the applicant) manages the jobs assigned  to
him.”  Notwithstanding, it is obvious he did have a problem  with  the
applicant’s inability to exercise  good  judgment  in  regard  to  the
affair with his subordinate.

The applicant indirectly contends the contested  EPR  is  inconsistent
with previous performance.  It is not feasible to compare  one  report
covering a certain period of  time  with  another  report  covering  a
different period of time.  The  contested  EPR  was  rendered  to  the
applicant as a result of unacceptable off-duty behavior.  The fact is,
the applicant was  expected  to  maintain  standards  of  conduct  and
responsibility at least as stringent as the rest  of  the  NCO  corps.
The applicant’s desire  for  the  board  to  direct  voidance  of  the
contested EPR because of the promotion advantage is understandable.  A
review of the documents  provided  does  not  reveal  a  violation  of
regulatory  provisions  or  indicate  an   injustice   has   occurred.
Recommend the applicant’s request be denied.

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

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant’s
counsel on 22 June 1998 for review and response.   Counsel’s  response
states, in part, that it is clear that the applicant was not  derelict
in his duties.  The relationship simply  did  not  “detract  from  the
authority of superiors.”  Contrary to the language of the Article  15,
applicant never served in the supervisory chain of Senior Airman B---;
they were merely members  of  the  same  unit.   A  prime  example  of
prejudice [of good order and discipline] which  is  reasonably  direct
and palpable is when a service member has a sexual  relationship  with
the spouse of another service member from  the  same  unit.   In  this
case, of course, no such situation existed.  Senior  Airman  B---  was
actively seeking a divorce under the  laws  of  North  Carolina  which
requires a  minimum  one-year  separation  before  a  divorce  may  be
finalized.  Senior Airman B--- had been separated since  on  or  about
5 August 1995.

Since,  for  reasons  set  forth,  the  allegations  are  not  legally
supported and the applicant should be restored to his rightful rank of
master sergeant.  His record  should  be  corrected  by  removing  the
Article 15 and referral EPR.

Counsel’s response is attached at Exhibit G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice.  After a thorough review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that the Article 15, imposed  on  7  October  1996,  or  the
Enlisted Performance Report (EPR), closing 1 November 1995, should  be
removed from his military personnel records.  The contentions  of  the
applicant and his counsel are duly noted;  however,  we  do  not  find
these assertions, in and by  themselves,  sufficiently  persuasive  to
override the rationale provided by the Air Force  offices  of  primary
responsibility (OPR).  We therefore agree with the recommendations  of
the Air Force and adopt the rationale expressed as the basis  for  our
decision that the applicant has failed to sustain his burden  that  he
has suffered either an error or an injustice.  Therefore, we  find  no
compelling basis to recommend granting the relief sought.

_______________________________________________________________________
_____________________

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 11 February 1999, under the provisions of AFI 36-
2603.

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Mr. William H. Anderson, Member
                  Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated undated, w/atchs.
   Exhibit B.  Applicant's Microfiche Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 5 May 98.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 18 May 98.
   Exhibit E.  Letter, HQ AFPC/DPPPAB, dated 3 Jun 98.
   Exhibit F.  Letter, AFBCMR, dated 22 Jun 98.
   Exhibit G.  Counsel’s Letter, dated 15 Jan 99.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair