RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01514
                       INDEX CODE: 111.02 111.05 126.04
                       COUNSEL: None

                       HEARING DESIRED: No


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    “All evidence of proceedings be removed that lead to the Article
15 punishment.”

2.    The Enlisted Performance Report (EPR) closing 9  September  1997
be removed from his records.

3.    His grade of technical sergeant  (TSgt)  be  restored  with  the
original date of rank (DOR) of 1 November 1996.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not commit the  alleged  sexual  misconduct.  He  was  presumed
guilty from the start because he refused to take a polygraph test. Not
taking the test was an issue primarily because, as an AFOSI agent,  he
was held to a different standard. The investigation into  his  alleged
sexual misconduct was poorly conducted  and  the  credibility  of  the
alleged victims is questionable. For a person to be guilty of a crime,
the allegation must be corroborated. Since he would not succumb to the
pressure of the AFOSI, they felt they needed to set an example in  his
case. His commander discussed the allegations with squadron  personnel
that did not have a “need to know,” going so far as to  state  he  was
“probably guilty.” Squadron personnel knew of his impending Article 15
before it was imposed by  the  commander.  Due  to  favoritism,  other
personnel  involved  in   adverse/derogatory   situations   were   not
investigated to the extent he was  (if  at  all)  and  received  minor
punishment.

In support of his request he submits, in part, a 14-page brief with 29
attachments,  including  the  AFOSI  Report  of  Investigation  (ROI),
character references from superiors, fellow agents,  an  area  defense
counsel (ADC) and others and other pertinent documents. Also  provided
is his  current  commander’s  supporting  statement,  which  expresses
strong support and concern that unlawful command influence within  the
AFOSI and conflict of interest prejudiced the  applicant’s  case  from
the start and  denied  him  due  process.  Based  on  the  applicant’s
outstanding record and the information contained  in  this  case,  the
commander closed the  Unfavorable  Information  File  (UIF)  one  year
early. Also  included  are  statements  asserting  the  applicant  was
presumed guilty from the start.

Applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 20 May 1981 and was  subsequently
promoted to TSgt with a DOR of 1 November 1996. For the most part, and
with the exception to the  contested  referral  EPR,  his  performance
reports reflect the highest ratings. He is currently  serving  in  the
Regular Air Force in the grade of  staff  sergeant  (SSgt)  at  Warner
Robins AFB, GA.  During the period in question, he was assigned to the
62nd Field Investigations Squadron (62FIS), Detachment 623 (AFOSI), at
Misawa AB, Japan.

The following information was extrapolated from the AFOSI ROI dated 10
March 1997:

      On 28 December 1996,  the  applicant’s  AFOSI  detachment  began
investigating him based on information  that  he  had  allegedly  made
inappropriate sexual advances to a female airman assigned to the  35th
Fighter Wing at Misawa AB. She alleged the applicant entered her  dorm
room on 27 December 1996, pushed her down and pinned her on  her  bed,
lay on top of her and kissed her without consent. Before he  left,  he
allegedly grabbed, pulled her close and inserted his hand  inside  her
jeans. She pushed him  away  and  he  departed  through  an  adjoining
bathroom. She alleged that, before he left, he told  her  this  was  a
secret and he could find out anything  about  her  if  she  told.  The
applicant admitted to being in her room but denied committing  any  of
the acts she alleged. He asserted that he was never alone with her for
more than a few seconds because people were coming in  and  out.   The
airman took a polygraph and it was the opinion of the polygrapher that
she  did  not  indicate  deception.  Additional  obtained  information
identified previous alleged incidents of inappropriate behavior by the
applicant towards a Japanese  National  and  her  sister.  Further,  a
senior airman alleged that, while she  and  the  applicant  were  both
stationed at Andrews AFB, MD, and deployed to Volksfield, WI, in  June
1995, he exposed his penis to her when they were walking together  and
asked if she wanted to touch it.  The investigation was concluded on 5
March 1997.

On 26 and 27 March 1997, statements to the  AFOSI  revealed  that  the
applicant allegedly grabbed and tried to kiss another senior airman at
Masawa AB between 1 and 30 June 1996.

On 16 April 1997 the 62FIS commander notified  the  applicant  of  his
intention to administer nonjudicial punishment pursuant to Article 15,
Uniform Code of Military Justice (UCMJ), in violation of Articles  128
and 134. The applicant was charged with two cases  of  assault,  i.e.,
the June 1996 and 27 December  1996  incidents  involving  the  senior
airman and airman at Masawa AB, Japan. He was also  charged  with  one
case of indecent exposure towards the  senior  airman  in  June  1995.
After consulting with counsel the applicant waived his right to court-
martial and accepted nonjudicial  proceedings  under  Article  15.  He
presented written matters for consideration.  On 24  April  1997,  the
62FIS  commander  determined  the  applicant  committed  the   alleged
offenses and imposed punishment consisting of reduction to  the  grade
of SSgt, with a new DOR of 24 April 1997, and  forfeiture  of  $200.00
per month for two months.  His appeal was denied on 29 April 1997. The
Article 15 was filed in his UIF.

On 15 September 1997, the contested  EPR  was  referred  to  him.  All
categories in Section III were marked at the highest level except  for
conduct on/off duty, which was marked “Unacceptable.”  The  rater  and
indorser comment on the Article 15 the applicant received  for  sexual
misconduct. The overall rating was “3.” The indorser indicated he  had
not received comments from the applicant.

On 12 January 1998, the Kadena Air Base ADC requested  that  the  35th
Operations Support Squadron (35OSS) commander set  aside  the  Article
15. The ADC contended that the  AFOSI  detachment  commander  and  the
62FIS  commander,  who  served  the  Article  15,  were   biased   and
predisposed towards the case which rendered them  unable  to  maintain
impartiality. At  a  March  1997  commander’s  call  at  HQ  AFOSI,  a
brigadier general’s comments  indicated  a  desire  to  prosecute  the
applicant and punish him harshly before the investigation was complete
[The investigation was completed on 5 Mar 97 and the ROI written on 10
Mar 97]. According to 35OSS  commander’s  statement  [Exhibit  A],  he
removed the Article 15 from the UIF one year early.
_________________________________________________________________

AIR STAFF EVALUATION:

The Staff Judge  Advocate  (AFMPC/JA)  reviewed  the  application  and
asserts the facts of this case do not  warrant  a  set  aside  of  the
Article 15, which is a completely  accurate  characterization  of  the
applicant’s misconduct. He was properly and thoroughly represented  by
counsel and given ample opportunity to provide  written  responses  to
the commander. There is no evidence that  the  applicant’s  supervisor
prejudged the case. Nor could  this  supervisor,  as  the  commander’s
subordinate, have exerted unlawful command influence on the commander.
 The is nothing in the record  to  indicate  that  the  commander  and
appellate  authority  were  other  than  fair  and  impartial.   Three
unrelated victims  alleged  misconduct  of  a  sexual  nature  by  the
applicant at different times and places. The applicant has not offered
any plausible explanation of why three separate women would make false
accusations against him. The Article  15  punishment  administered  is
within legal limits and is appropriate to  the  offenses;  it  is  not
unjust or disproportionate. The application should be denied.

A complete copy of the evaluation is at Exhibit C.

The Chief, Inquiries/AFBCMR Section,  HQ  AFPC/DPPPWB,  advised  that,
should the Board set aside the Article 15,  the  applicant’s  DOR  and
effective date to TSgt would be 1 November 1996  and,  based  on  this
DOR, he would be considered  for  MSgt  for  the  first  time  in  the
promotion process cycle 99E7, provided he is  otherwise  eligible.  As
for the contested EPR, the first time this report will  be  considered
in the promotion process will be for cycle 99E6 to  TSgt.  Should  the
Board void the report in its entirety or upgrade the  overall  rating,
he will be entitled to supplemental promotion consideration  beginning
with cycle 99E6, provided  he  is  not  selected  during  the  initial
selection process.

A complete copy of the evaluation is at Exhibit D.

The Chief, Commanders’ Programs Branch, HQ  AFPC/DPSFC,  advises  that
the Article 15 is mandatory for file in a UIF for  enlisted  personnel
when the punishment is in excess of one month, as was in  the  instant
case. An AF Form 1058, Unfavorable Information  File  Action,  is  not
required to refer the Article 15 to the UIF. Section 11 of the AF Form
3070, Record of Nonjudicial Punishment Proceedings, was  annotated  to
reflect the Article 15 would be filed in the UIF. UIFs may be used  by
commanders to form the basis for a variety of adverse actions as  they
relate to a member’s conduct,  bearing,  behavior,  integrity  and  so
forth. Commanders may remove an enlisted member’s UIF early. The Chief
recommends denying this appeal on the basis that the applicant did not
provide sufficient justification  to  warrant  removal.   The  current
commander indicated he removed the applicant’s UIF  early,  originally
due to expire April 1999. The removal of the UIF deletes  the  Article
15 and UIF from the personnel database; however, the Article 15 itself
will remain in the applicant’s master personnel  record  (MPR)  unless
directed set aside by the AF Review Board.

A complete copy of the evaluation is at Exhibit E.

The Acting Chief, Appeal & SSB Branch, HQ AFPC/DPPPAB, indicates  that
the Performance Feedback Worksheet (PFW) acts as a scale on where  the
ratee stands in relation to the expectations of the rater.  Apparently
the rater and commander from the report had higher expectations of on-
or off-duty conduct  than  did  the  applicant.  Further,  a  positive
feedback session does not guarantee a firewalled EPR. The Acting Chief
concurs with the AFLSA/JAJM  advisory  opinion  that  the  Article  15
punishment may have motivated the rater and commander to  address  the
applicant’s behavior in the contested EPR, as they  were  well  within
their purview to do. As the Article  15  punishment  was  administered
within legal limits and appropriate to the offenses, the author
sees no reason to void  the  EPR.  Also,  not  having  the  EPR  hand-
delivered to him by his  rater  does  not  by  itself  invalidate  it.
Denial is recommended.

A complete copy of the evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR STAFF EVALUATION:

The applicant reviewed  the  evaluations  and  asserts  his  fate  was
already  determined  long  before  the  case  was   investigated   and
subsequently closed. His superiors made public predetermined decisions
about him long before the investigation was over, primarily because he
would not take a polygraph. He provides examples of  why  he  believes
the process was biased and predetermined.  He  indicates  others  were
aware of  his  unfair  treatment  but  were  afraid  of  reprisal.  He
questions  why  his  entire  eight-year   AFOSI   career   was   being
investigated. It was highly unusual  and  disturbing  that  the  AFOSI
would go back that far and conduct a witch-hunt. He explains  why  the
credibility  of  the  alleged  victims  is  questionable   and   their
allegations were uncorroborated.  He had difficulty obtaining counsel.
He was not willing to go through a court-martial  when  his  commander
and the AFOSI command was already prejudiced against him. His military
performance and behavior during his 17  years  of  service  have  been
nothing less than outstanding.

Applicant’s complete response is at Exhibit H.

________________________________________________________________

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 relief is warranted. Applicant’s  contentions  and  the
supporting statements were duly noted; however, we do not  find  these
assertions, in and by themselves, sufficiently persuasive to  override
the rationale provided by the Air Force.  The  applicant’s  submission
does not  sustain  his  allegations  of  command  influence  and  pre-
judgment. Even if for the sake of argument one were  to  accept  these
assertions---which we do not---the applicant has not provided evidence
convincing us that he was innocent  of  committing  sexual  misconduct
towards three different enlisted women at different times and  places.
As  the  Article  15  punishment  appears  within  legal  limits,   is
appropriate to the offenses committed, and supports the referral  EPR,
we find no compelling basis to void these documents  and  restore  the
applicant’s  grade   of   TSgt.   Therefore,   we   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 of having suffered either an error  or  an  injustice.  The
appeal should be denied in its entirety.

_________________________________________________________________

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 27 July 1999, under the  provisions  of  AFI  36-
2603:

                  Mr. Oscar A. Goldfarb, Panel Chair
                  Mr. Patrick R. Wheeler, Member
                  Mr. Charlie E. Williams Jr., Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 26 May 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 9 Jul 98.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 30 Jul 98.
   Exhibit E.  Letter, HQ AFPC/DPSFC, dated 24 Oct 98.
   Exhibit F.  Letter, HQ AFPC/DPPPAB, dated 9 Nov 98.
   Exhibit G.  Letter, AFBCMR, dated 23 Nov 98.
   Exhibit H.  Letter, Applicant, dated 9 Mar 99.




                                   OSCAR A. GOLDFARB
                                   Panel Chair