RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03172
                 INDEX CODE:  126/131

                 COUNSEL:  TODD C. CONORMON

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15, Uniform Code of Military Justice (UCMJ), imposed on 10
March 1998, and all references to the Article 15,  be  set  aside  and
removed from her records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Allegations  in  the  Article  15  were  untrue  and  unsupported   by
sufficient evidence.  Counsel for the applicant states that a thorough
and careful reading of the Inquiry Officer’s (IO) report reveals  that
the allegations against  the  applicant  were  based  on  a  selective
reading of the facts circulated by resentful coworkers  engaged  in  a
petty feud.  Moreover, additional evidence has  come  to  light  which
calls into question the basic fairness of  the  inquiry  itself.   The
Article 15 proceeding was tainted by a serious procedural impropriety.


In support of her appeal, applicant submits a copy of  the  Report  of
Inquiry (ROI), sworn affidavits of the applicant and other individuals
involved and character references.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant in the Reserve of the  Air
Force on 2 October 1984 and ordered to extended  active  duty   on  28
November 1984 for  a  period  of  36  months.   She  was  subsequently
appointed a captain in the Regular Air Force on 17 April 1989.

While serving in the grade of major, the applicant  was  notified,  on
13 February 1998, of her  commander’s  intent  to  impose  nonjudicial
punishment upon her for the following offenses:  (1) pinching a  staff
sergeant on his buttocks; (2)  placing  her  (applicant)  hands  on  a
captain’s inner thigh while stating, “Glad not  everything  froze  off
there;” and (3) distributing a Playboy magazine to  a  senior  airman,
all in violation of Article 133 (Conduct  unbecoming  an  Officer  and
Gentleman).  On 23 February 1998, the applicant acknowledged that  she
understood her rights concerning nonjudicial  punishment  proceedings,
that she had consulted a lawyer, that she waived her right to be tried
by court-martial, and that she did  desire  to  make  a  personal  and
written  presentation  to  the  commander.   On  10  March  1998,  the
commander determined that she had committed the offenses  and  imposed
punishment consisting of a reprimand.  On 20 March 1998, the commander
determined that the Article 15 would not be filed in  the  Officer  HQ
USAF  Selection  Record  and  Officer  Command  Section  Record.   The
applicant appealed  the  punishment  and  the  appeal  was  denied  on
30 March 1998.  The commander indicated that the action would be filed
in an Unfavorable Information File (UIF).  The  Judge  Advocate  found
the record to be legally sufficient on 3 April 1998.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, Air Force Legal  Services
Agency, AFLSA/JAJM, states, in part, that Air Force Instruction  (AFI)
51-202 requires that in contemplating the  imposition  of  nonjudicial
punishment, commanders act on  the  basis  of  information  they  deem
reliable, and that the action be temperate, well-conceived, just,  and
conducive to good order and  discipline.   Based  on  the  information
presented to him, it was well within the commander’s sound exercise of
discretion to conclude that the applicant had acted in a manner  which
undermined  her  authority  as   an   officer.    After   making   his
determination that the applicant had committed the offenses concerned,
he weighed  the  nature  and  scope  of  her  actions  and  imposed  a
punishment  suitable   to   the   circumstances.    Accordingly,   the
applicant’s nonjudicial punishment action was legally  sufficient  and
properly accomplished, and the applicant was afforded all  the  rights
granted by statute.  Recommend the applicant’s request be denied.

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

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  the  applicant’s
counsel on 8 March 1998 for review and response.  Applicant’s  counsel
states, in summary, that he is aware of no case  law,  regulation,  or
statute that makes the applicant’s conduct illegal.  A commander might
not exercise his discretion in applying nonjudicial punishment  in  an
arbitrary and capricious fashion.  He cannot substitute  his  morality
without a valid legal precedent and the rule  of  law.   Punishing  an
officer through nonjudicial punishment requires a  finding,  based  on
the evidence, that the officer is guilty of criminal misconduct.

A copy of the applicant’s response is attached 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   warranting   favorable
consideration of  the  applicant’s  request.   We  have  reviewed  the
evidence of record and the statements  submitted  by  the  individuals
involved.  However, in our opinion,  there  is  insufficient  evidence
regarding the allegations against the applicant.  In this respect,  we
found no direct evidence  of  the  pinching  or  intentional  touching
incidents and no clear-cut evidence of  wrongdoing  by  the  applicant
with regard to the magazine incident, notwithstanding the findings  by
the Investigating Officer (IO).  After reviewing the  statements  from
numerous individuals, we believe that the applicant  was  an  outgoing
individual and concerned about her peers and  subordinates  with  whom
she worked and tried to create a congenial atmosphere  while  deployed
at Westover Air  Force  Base,  Massachusetts  and  also  in  her  home
squadron at Pope Air Force Base, North Carolina.   It  appears  to  us
that  her  actions  for  which  she  received  the  Article  15,  were
misconstrued by her subordinates.  We believe that the Article 15  was
somewhat harsh and at best the applicant should  have  been  counseled
regarding her perceived behavior.  Therefore, we  recommend  that  the
Article 15 and resulting Unfavorable Information File (UIF) be removed
from her records.

4.  We also note that the applicant received  an  Officer  Performance
Report (OPR), for the period 1 February 1997  through  10 March  1998,
which was a referral report.  The comments by the rater and additional
rater indicated that there was a formal investigation concluding  that
the applicant  displayed  poor  judgment  and  unprofessional  conduct
during this period.  The rater also stated in his  overall  assessment
that approval authority was granted to extend the close  out  date  of
the OPR.  It appears that this extension was requested to include  the
Article 15 action against the  applicant.   We  note  that  while  her
commander imposed the Article 15  action,  he  did  not  feel  it  was
egregious  enough  to  ruin  her  otherwise  outstanding  career   and
therefore did not place  the  Article  15  in  her  officer  selection
folder.  Therefore, we recommend that the  referral  OPR  in  question
also be removed from her records.  The applicant was  also  considered
for promotion to the grade of lieutenant colonel by the Calendar  Year
1999 (CY99) Central Lieutenant Colonel Selection Board below -the-zone
(BPZ).  After reviewing the promotion  recommendation  form  that  was
reviewed by the CY99 promotion board, we believe that  the  remark  in
Section IV, Promotion Recommendation, referring to a recent episode of
poor judgment and the overall promotion recommendation in Section  IX,
which reflects  “do  not  promote  this  board,”  is  harmful  to  the
applicant  and  would  be  detrimental  to  her   receiving   a   fair
consideration for promotion.  Therefore, in an  effort  to  offset  an
injustice to the applicant, we recommend her records be  corrected  to
the extent indicated below and  that  she  be  considered  by  Special
Selection Board (SSB) for promotion to the grade of lieutenant colonel
by the CY99 selection board

_______________________________________________________________________
_____________________

THE BOARD RECOMMENDS THAT:

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

    a.  The punishment imposed under the  provisions  of  Article  15,
Uniform Code of Military Justice (UCMJ), AF  Form  3070,  on  10 March
1998, be set aside and all rights, privileges, and property  of  which
she may have been deprived, be restored.

    b.  The Unfavorable Information File (UIF) established as a result
of the above Article 15 action, be declared void and removed from  her
record.

    c.  The Field Grade Officer  Performance  Report,  AF  Form  707A,
rendered for the period 1 February 1997  through  10  March  1998,  be
declared void and removed from her records.

    d.  The Promotion Recommendation Form, AF Form  709,  reviewed  by
the Calendar Year 1999 (CY99) Central  Lieutenant  Colonel  Board,  be
declared void and removed from her records.

It is further recommended that her records be considered for promotion
to the grade of lieutenant colonel (below-the-zone (BPZ)) by a Special
Selection Board (SSB)  for  the  Calendar  Year  1999  (CY99)  Central
Lieutenant Colonel Board.

_______________________________________________________________________
_____________________

The following members of the  Board  considered  this  application  in
Executive Session on 17 August 1999, under the provisions of  AFI  36-
2603:


                  Ms. Charlene M. Bradley, Panel Chair

                  Mr. Mike Novel, Member
              Mr. Philip Sheuerman, Member

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

   Exhibit A.  DD Form 149, dated 11 Jun 98, w/atchs.
   Exhibit B.  Applicant's Microfiche Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 18 Feb 99.
   Exhibit D.  Letter, AFBCMR, dated 8 Mar 99.
   Exhibit E.  Counsel’s Letter, dated 31 Mar 99.



                                   CHARLENE M. BRADLEY
                                   Panel Chair

INDEX CODE:  126/131

AFBCMR 98-03172




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   , be corrected to show that:

            a.  The punishment imposed under the provisions of Article
15, Uniform Code of Military Justice (UCMJ), AF Form 3070, on 10 March
1998, be, and hereby is, set aside and all rights, privileges, and
property of which she may have been deprived, be restored.

            b.  The Unfavorable Information File (UIF) established as
a result of the above Article 15 action, be, and hereby is, declared
void and removed from her records.

            c.  The Field Grade Officer Performance Report, AF Form
707A, rendered for the period 1 February 1997 through 10 March 1998,
be, and hereby is, declared void and removed from her records.

            d.  The Promotion Recommendation Form, AF Form 709,
reviewed by the Calendar Year 1999 (CY99) Central Lieutenant Colonel
Board, be, and hereby is, declared void and removed from her records.


      It is further directed that her records be considered for
promotion to the grade of lieutenant colonel (below-the-zone (BPZ)) by
a Special Selection Board (SSB) for the Calendar Year 1999 (CY99)
Central Lieutenant Colonel Board.







   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency