RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-01268

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15, Uniform Code of Military Justice (UCMJ),  dated  12 November
1996, be voided from his records and the punishment imposed upon him be  set
aside; and, that he be returned to pilot training.
_________________________________________________________________

APPLICANT CONTENDS THAT:

Since 17 June 1996, the day he was commissioned into the Air Force from  the
United States Merchant Marine Academy, he has  yet  to  receive  the  annual
training of the concepts of AFI  36-2909  (Professional  and  Unprofessional
Relationships) on fraternization.

On 6 September 1996, he had a “one-night  stand”  with  a  woman  who  later
turned out to be enlisted.  He did not know she  was  an  enlisted  military
member at any time until 13 September 1996 when he  was  confronted  by  two
classmates.  At that time, he terminated any interaction with her.

On 12 November  1996,  he  was  unjustly  served  with  an  Article  15  for
knowingly  fraternizing  with  an  airman.   Subsequently,  he  received  an
Unfavorable  Information  File  (UIF)  and  it  was  filed  in  his  Officer
Selection Record (OSR), and he was removed from pilot training.   There  are
many problems and misunderstandings with the investigation report.

He asks the Board to resolve him of the Article 15, the UIF,  its  existence
in his selection record and return to pilot training.

In support of his request, applicant submits a copy of the Article 15 and  a
personal statement, with additional documents  associated  with  the  issues
cited in his contentions.  These documents are appended at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant is a former member of the U.S. Merchant Marine, United  States
Naval Reserve.  On 14 February 1996, he submitted a request to  resign  from
the US Naval Reserve and transfer to the Air Force.

On 17 June 1996, the applicant was appointed a  second  lieutenant,  Reserve
of the Air Force, and was voluntarily ordered to extended active duty on  30
June 1996.  He is currently serving on active duty in  the  grade  of  first
lieutenant, with an effective date and date of rank of 29 May 1998.

Information extracted from the  Personnel  Data  System  (PDS)  reveals  the
applicant as a student in navigator training, effective  16  December  1997.
Effective 10 April 1999, his duty title was KC-135R navigator.

On 12 November 1996, the applicant was notified of  his  commander's  intent
to impose nonjudicial  punishment  on  him  under  Article  15,  UCMJ.   The
misconduct applicant had allegedly committed was for fraternization with  an
enlisted member on or about 13 September 1996, in violation of Article  134,
UCMJ.  The applicant consulted a lawyer, waived his right  to  demand  trial
by court-martial  and  accepted  nonjudicial  punishment.   He  requested  a
personal  appearance  and   submitted   a   mitigating   statement.    After
considering all matters presented  to  him,  the  commander,  on  2 December
1996, found that the applicant did  commit  one  or  more  of  the  offenses
alleged.  The commander imposed punishment of forfeiture  of  $820  pay  per
month for 2 months, the  amount  over  $400  pay  per  month  for  2  months
suspended until 25 May 1997, after which time it would be  remitted  without
further action, unless sooner  vacated,  and  a  reprimand.   The  applicant
submitted  documentation  indicating  that  he  appealed   the   nonjudicial
punishment on 11 December 1996.  His request was denied on 23 December  1996
by the appellate authority.  On 2 January  1997,  the  commander  determined
that  the  Article  15  would  be  filed  in  the  applicant’s   Unfavorable
Information File (UIF).

On 13 December 1996, the applicant was notified of  the  commander’s  intent
to file the Article 15 in his Officer Selection Record (OSR).  On 8  January
1997, the applicant submitted a statement of  rebuttal  to  the  commander’s
intent to file the record of Article 15 in his OSR.  After  considering  the
applicant’s rebuttal, the commander, on 14  January  1997,  determined  that
the record of nonjudicial punishment would be filed in the applicant’s OSR.
_________________________________________________________________

AIR FORCE EVALUATION:

The Air Force Legal Services Agency, AFLSA/JAJM, stated that the  applicant,
after having been recently transferred to the Air Force  from  the  Merchant
Marine, was sent TDY to San Antonio, Texas, for flight training.   While  in
San Antonio, he was observed on two occasions by other military  members  to
be socializing in a civilian setting with a female enlisted member at a  bar
near the enlisted member’s home.

JAJM indicated that both the applicant and the enlisted  member,  both  then
unmarried individuals, admit having had sexual intercourse on  one  occasion
at her home the evening of their first meeting in the bar.  They both  state
there were no subsequent such encounters and there is no direct evidence  in
the file to indicate that anyone other than the participants were  aware  of
this or any other intimate sexual encounter between the  applicant  and  the
enlisted member.  On the second occasion in  which  the  applicant  and  the
enlisted woman met in a social setting, the applicant was advised  by  other
officers in his party that he was then acting inappropriately friendly  with
the enlisted member, given the difference in their  military  status.   Once
so advised, according to a witness, applicant’s behavior changed.

JAJM stated that  while  one  might  raise  factual  questions  under  other
circumstances as to the type of conduct which falls within  what  Air  Force
custom would define as  fraternization,  it  should  be  clear  that  sexual
intercourse between an enlisted member and an officer (the specific  conduct
the applicant is charged with having conducted in  violation  of  the  UCMJ)
qualifies as fraternization in the Air Force.

The applicant’s contention, that he did not know the woman was  an  enlisted
member at the time he engaged in sexual relations with her,  is  a  question
of fact that was considered by the applicant’s commander  as  the  trier  of
fact under the nonjudicial punishment proceedings.  There  was  evidence  to
support both sides of the proposition, and the  commander  determined  there
was more evidence to support the proposition that  the  applicant  knew  the
woman was an enlisted member. One of the five  elements  of  a  prima  facie
case of fraternization under UCMJ Article 134 is that the accused then  knew
the person with whom he was fraternizing to be an enlisted member.   As  the
applicant  was  charged  with  fraternization  on  the  basis   of   “sexual
intercourse,” the date of his  first  social  encounter  with  the  enlisted
member is the date with which he must be charged with knowledge.  This is  a
close case, but JAJM is not in  a  position  to  second  guess  the  factual
findings of  the  applicant’s  commander.   JAJM  indicated  that  there  is
sufficient evidence in the record to support  the  commander’s  findings  in
the case.

JAJM found no legal errors requiring correction  and  administrative  relief
by their office.  However, based on the facts of this  case,  if  the  Board
feels there  was  insufficient  evidence  to  support  a  finding  that  the
applicant knew the woman was an enlisted member when he engaged in sex  with
her, the Board may grant relief accordingly.

A complete copy of this evaluation is appended at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of  the  Air  Force  evaluation  was  forwarded  to  applicant  on  3
August 1998 for review and response.  As of this date, no response has  been
received by this office (Exhibit D).
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

Pursuant to the Board’s request  concerning  what  action(s)  transpired  to
have the applicant removed from pilot training and transferred to  navigator
training, the Operations Assignment Division, HQ AFPC/DPAO,  indicated  that
the incident resulting in the Article 15 occurred  when  the  applicant  was
attending  flight  screening  at  Hondo,  TX,  prior  to   beginning   Joint
Specialized Undergraduate Pilot Training (JSUPT) at Vance  AFB,  OK.   After
elimination  from  JSUPT,  the  applicant   attended   Joint   Undergraduate
Navigator Training (JUNT) and earned his wings in July 1998.

DPAO stated that the applicant received the Article  15  in  November  1996.
In  December  1996,   the   applicant’s   squadron   commander   recommended
elimination from JSUPT due to “substandard officership and  professionalism”
and the  group  and  wing  commanders  concurred.   On  2  April  1997,  the
applicant was notified he would not attend pilot training  and  directed  to
give at least three preferences for  the  next  assignment.   The  applicant
responded with navigator training as his first choice.  On  11  April  1997,
the squadron commander recommended the applicant for “all of  his  requested
Air  Force  Specialty   Code   (AFSC)   selections   and   locations.”    No
documentation exists as to how the applicant entered JUNT except  for  a  23
May 1997 handwritten memo-for-record (MFR) stating the  applicant  “will  be
given  a  navigator  seat.”   No  documentation  exists  to  determine   how
substandard officership and professionalism disqualified the applicant  from
JSUPT, but not from JUNT or any  other  career  field.   The  standards  for
officership  and  professionalism  are  the  same  for  all  officers.    An
individual who fails to meet standards for one career field, fails  for  all
career fields.  This  is  not  a  case  of  physical  ability,  but  one  of
professional standards.  If the applicant’s behavior  was  not  good  enough
for pilot training, then he should have been separated from the  Air  Force.
The reverse is also true.  If he made the cut for  navigator  training  then
he should not have been eliminated from pilot training.

A complete copy of this evaluation is appended at Exhibit E.


Pursuant to the Board’s request concerning the Article 15  retention  period
within an Officer Selection Record (OSR), the Selection  Board  Secretariat,
HQ AFPC/DPPB, stated that the governing  Air  Force  instruction  stipulates
that “For Lt Colonels and below, keep Article 15 on file  in  the  selection
record until the officer is afforded one in-promotion-zone (IPZ)  or  above-
promotion-zone (APZ) consideration….”  In the applicant’s case, the  Article
15, dated 2 December 1996, was  filed  in  the  OSR  on  11 September  1997.
Based  on  the  applicant’s  Total  Active  Federal  Military  Service  Date
(TAFMSD) of 30 June 1996, he will first become  eligible  for  promotion  to
captain in June 2000.   Therefore,  the  applicant  would  meet  the  P0399D
captain board, which is scheduled to convene in  September  1999,  with  the
Article 15 filed in  his  OSR  (unless  removed  early  by  the  appropriate
authority).  A complete copy of this evaluation is appended at Exhibit F.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

Copies of the additional Air Force evaluations were forwarded  to  applicant
on 8 March and 12 March 1999 for review and response.  As of this  date,  no
response has been received by this office (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 with  respect  to  the  Article  15
action.  The evidence reflects  that  the  commander  initiated  Article  15
action based on information he  determined  to  be  reliable  and  that  the
nonjudicial punishment was properly accomplished and applicant was  afforded
all rights granted by statute and regulation.  The applicant has  failed  to
show any error in the initiation of the Article  15  action.   We  have  not
been  convinced,  by  his  submission,  that  his   commander   abused   his
discretionary authority when he  imposed  the  nonjudicial  punishment,  and
since we find no abuse of that authority, we find no reason to overturn  the
commander’s  decision.   Therefore,  lacking  substantial  evidence  to  the
contrary, no basis exists to recommend favorable action on  the  applicant’s
request to void the contested Article 15.

4.  Notwithstanding  the  above,  we  are  in  agreement  with  the  opinion
expressed by the Operations Assignments Division,  HQ  AFPC/DPAO,  that  the
standards  for  officership  and  professionalism  are  the  same  for   all
officers; i.e., the same professional  standard  applies  to  navigators  as
well as pilots.  Therefore, if the applicant  was  qualified  for  navigator
training then he should have been qualified for pilot  training.   Based  on
the circumstances presented in this case, we believe that any  doubt  should
be resolved in favor of the applicant by affording him  the  opportunity  to
be reinstated into Undergraduate  Pilot  Training  (UPT),  providing  he  is
otherwise qualified.  We therefore recommend that  the  applicant’s  records
be corrected as indicated below.

5.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue(s) involved.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that, provided he is  otherwise  qualified
for aviation service, he be entered into  Undergraduate  Pilot  Training  in
the earliest possible class.
_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 1 July 1999, under the provisions of AFI 36-2603:

                  Mr. Terry A. Yonkers, Panel Chair
                  Mr. Joseph A. Roj, Member
              Mr. Grover L. Dunn, Member

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

   Exhibit A.  DD Form 149, dated 5 May 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 23 Jun 98.
   Exhibit D.  Letter, SAF/MIBR, dated 4 Aug 98.
   Exhibit E.  Letter, HQ AFPC/DPAO, dated 4 Feb 99.
   Exhibit F.  Letter, HQ AFPC/DPPB, dated 18 Feb 99.
   Exhibit G.  Letters, AFBCMR, dated 8 Mar and 12 Mar 99.




                                   TERRY A. YONKERS
                                   Panel Chair



AFBCMR 98-01268




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, provided he is otherwise
qualified for aviation service, he be entered into Undergraduate Pilot
Training in the earliest possible class.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency