RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-00537
            INDEX CODE:  111.01

            COUNSEL:  ANTHONY W. WALLUK

            HEARING DESIRED:  YES

_________________________________________________________________


APPLICANT REQUESTS THAT:

The Letter of Reprimand (LOR), dated 8 Aug  96,  be  voided  from  his
records and that any reference to the reprimand be expunged  from  his
records.  Specifically, removal of the “inappropriate”  comments  from
his Officer Performance Report (OPR), rendered for the period  28  Oct
95 through 1 Jan 97, and the Promotion Recommendation  (PRF)  prepared
for consideration by the CY97D (22 Sep 97) Captain  Central  Selection
Board.

His promotion to captain (O3) be backdated, with  restoration  of  all
lost benefits.

APPLICANT CONTENDS THAT:

The LOR was based on facts assumed by the commander at  the  time  the
LOR was imposed, but which were later  proven  untrue  in  the  court-
martial of ???.  The LOR should have been removed in Mar 97 after  the
court-martial.  The OPR should have been delayed until after the court-
martial was over and, given the results of the trial, the  unfavorable
comments should not have  been  included.   The  PRF  written  several
months later (Aug 97) clearly reflect that the  command  continued  to
hold the applicant responsible for the  incident  notwithstanding  the
acquittal of ???.  Therefore, the negative PRF was  inappropriate  and
should not have been issued.

The promotion board got to look at the LOR, the OPR  and  the  PRF  in
determining whether to select or nonselect him for promotion.  All  of
those documents inaccurately made his  involvement  appear  much  more
significant than it was, and suggested illegal activity, which did not
occur.  The effects on his promotion of the inaccurate and unjust  LOR
and PRF are illustrated by the fact  that  as  soon  as  the  LOR  was
removed from his record, and the PRF was no longer in effect,  he  was
promoted by the next promotion board (CY98D Captain Board).

Since the LOR has been removed from his promotion file and he has been
promoted by the CY98D Captain’s Board, his date  of  rank  as  captain
should be set back to when he would have been promoted, but for  these
erroneous documents being in his record.

In support  of  his  request,  counsel/applicant  submits  a  personal
statement, with a chronological order of events, copies  of  the  LOR,
response  to  the  LOR,  charge  sheet,  AF  Form  1058   (Unfavorable
Information File Action), recommendation to  delay  promotion  to  the
grade of first lieutenant, the contested OPR and  PRF  and  additional
documents associated with the issues cited in his contentions (Exhibit
A).

STATEMENT OF FACTS:

On 1 Jun 94, the applicant was appointed a second  lieutenant  in  the
the Regular Air  Force.   He  was  promoted  to  the  grade  of  first
lieutenant (O2) on 1 Jun 96.  He is currently serving on  active  duty
in the grade of captain (O3), with an effective date and date of  rank
of 1 Jan 99.

Applicant's OPR profile, commencing with the report closing 27 Oct  95
follows:

            Period Ending    Evaluation

               27 Oct 95     Education/Training Report
            *   1 Jan 97     Does Not Meet Standards
                6 May 97     Meets Standards
            #  26 Jan 98     Meets Standards
            ##  7 Jun 98     Meets Standards
               10 Feb 99     Meets Standards

*  Contested Referral OPR

# Top report at  the  time  he  was  considered  and  nonselected  for
promotion to captain by the CY97D  Captain  Central  Selection  Board,
which convened on 22 Sep 97.

## Top report at the time he was considered and selected for promotion
to captain  by  the  CY98D  Captain  Central  Selection  Board,  which
convened on 21 Sep 98.

The applicant was given a promotion recommendation of “Do Not  Promote
This Board” on the Promotion Recommendation Form (PRF),  prepared  for
consideration by the CY97D Central Captain Selection Board (0397D).

The relevant facts pertaining to this application are contained in the
letter prepared by AFLSA/JAJM.   Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.
_________________________________________________________________

AIR FORCE EVALUATION:

The  Air  Force  Legal  Services  Agency,  AFLSA/JAJM,  reviewed  this
application and stated there are no legal errors requiring  corrective
action; therefore, they  recommended  the  Board  deny  the  requested
relief.

On 9 May 96, the applicant was involved in  a  physical  confrontation
with several Mexican citizens in Mexico, which led Mexican authorities
to arrest the applicant and ???.  After an OSI  investigation,  court-
martial  charges  were  referred  against  ???,  while  the  applicant
received an  LOR  on  8 Aug  96.   The  LOR  was  placed  into  a  UIF
(Unfavorable Information File) and the applicant  was  placed  on  the
control roster; and,  his  promotion  to  first  lieutenant  was  also
delayed.  The LOR was referenced in a “referral” OPR closing 1 Jan 97.
 The applicant was not recommended, nor was he selected, for promotion
to captain by the CY97D promotion board.

In Mar 97, ??? was court-martialed for his role in the same  incident.
The court-martial found ??? not guilty of assault and  not  guilty  of
absence  without  leave,  but  guilty  of  making  a  false   official
statement.  ??? was sentenced to forfeiture of $500 pay per month  for
three months, confinement for two days, restriction to  the  base  for
two months and reprimanded.

JAJM stated that there are two fundamental flaws  in  the  applicant’s
theory of relief.  The first flaw is the applicant’s  contention  that
he has been vindicated by the result of ???‘s court-martial.  Although
the applicant was certainly involved in the  underlying  incident  and
testified as  a  defense  witness  at  the  court-martial  (not  as  a
Government witness as he asserts), the focus of the trial was on ???‘s
actions and culpability.  The applicant’s actions and culpability were
not at issue  and  thus  were  not  adjudicated  by  the  court.   The
applicant’s assertion that the court-martial established  that  “both”
lieutenants  took  appropriate  action  under  the  circumstances   is
patently false.

JAJM   stated   that   the   second   flaw    is    the    applicant’s
mischaracterization of a “not guilty” verdict.  The  court’s  findings
do not prove that ??? was “innocent” of all wrongdoing,  nor  do  they
prove that the underlying facts did not occur.  They especially do not
prove that the applicant was “innocent” of anything.   Therefore,  the
applicant’s  reference  to  ???‘s  court-martial  as  proof   of   his
“innocence” is logically misplaced and irrelevant to the action  taken
by the commander in the applicant’s case.

JAJM indicated that according to the governing Air Force  instruction,
a reprimand does not constitute a criminal action nor does it  require
proof sufficient to  support  a  charge  under  the  Uniform  Code  of
Military Justice.  JAJM stated that the most persuasive information in
support of the  commander’s  actions  is  the  applicant’s  own  sworn
testimony  as  a  defense  witness  in  ???‘s   court-martial.    That
testimony,  which  the  applicant  has  included  as   part   of   his
application, describes the applicant’s version of the incident  giving
rise to the LOR.  The only misconduct referenced in the  LOR  that  is
not directly substantiated by the applicant’s  own  testimony  is  his
cooperation (or lack thereof) in the OSI investigation.

JAJM stated that there is a very good reason why Air  Force  officials
did not correct the applicant’s LOR, and subsequent personnel actions,
in light of ???‘s court-martial.  They recognized then, as  the  Board
should today, that the LOR and the  court-martial  were  fundamentally
different actions taken in response to different mistakes committed by
different Air Force members.  The applicant’s  misconduct  was  fairly
assessed by his commander, correctly  handled  through  administrative
measures,  and  ultimately  proven  to  be  legitimate  based  on  the
applicant’s own testimony.

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

The  Directorate  of  Personnel  Program  Management,  HQ  AFPC/DPPPA,
concluded that the applicant’s evaluators rendered a  factual  Officer
Performance  Report  (OPR),  mentioning  both  his  outstanding   duty
performance, as well as the specific incident of assault that occurred
during the reporting period of the contested OPR.  The  applicant  did
not provide any  statements  from  the  evaluators  of  the  contested
report.  Without benefit of these statements, DPPPA can only  conclude
that the contested report is accurate as written.  As to  the  request
for  direct  promotion,  DPPPA  indicated  that  other  than   another
officer’s general court-martial acquittal, the applicant has  provided
no substantiation  of  his  allegation  that  the  contested  OPR  was
inappropriately rendered.  The burden of proof is on him.  DPPPA  does
not recommend altering the applicant’s 1  Jan  97  OPR,  nor  do  they
support his request for a direct promotion to captain.  If the  AFBCMR
determines  that   administrative   relief   is   appropriate,   DPPPA
recommended the applicant be afforded a Special Selection Board  (SSB)
consideration.  A complete copy of  this  evaluation  is  appended  at
Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel stated that the trial counsel (prosecutor) and the trial judge
both stated in the record  that  applicant  did  not  assault  anyone.
There is no evidence anywhere that applicant was directly involved  in
an assault other than the commander initially  believing  that  to  be
true.  Counsel does not know what evidence the  commander  based  that
determination on because the pages of evidence the government produced
to a jury to prove that ??? committed an assault failed to prove  that
an assault, by anyone, occurred.  Counsel believes that  the  evidence
in this case shows that an LOR for the reasons cited in this  LOR  was
unreasonable.

Counsel indicated the advisory stated that only ???’s actions were the
focus of the charges of assault at  the  trial  and  that  applicant’s
actions  were  not  examined.   That  is  true.   However,  if  it  is
stipulated that applicant did not assault anyone himself, as it was in
this case, then any charges or  allegations  of  participating  in  or
assisting the assault could  only  be  derivative  of  ???’s  charges.
Therefore, as previously stated, there is no factual basis to  support
the allegation that applicant participated in an assault.

Counsel stated that the commander believed  that  both  officers  were
involved in an assault.  The applicant having been given a  reprimand,
had no recourse than to accept it.  Had  he  been  offered  punishment
under UCMJ Article 15 (nonjudicial punishment), he could have declined
it and allowed the commander  to  have  him  court-martialed  for  the
charges.  Had this occurred, he clearly  would  have  been  acquitted.
Actually, he never would have gone  to  a  court-martial  because  the
government admitted that he did not commit an  assault,  therefore,  a
reasonable and honest commander would have dropped the charges.

Counsel has not maintained that this incident did  not  happen.   What
counsel is alleging is that the words used in the LOR and the OPR were
very specific and very serious.  The OPR,  written  after  the  trial,
clearly could have and should have used  words  that  more  accurately
reflected what happened, to wit: an incident rather than  an  assault.
There are a number of ways the incident could have  gone  differently.
But to allege this incident in the serious nature of  the  wording  of
the LOR, and to allow that misstatement and misrepresentation of facts
to continue after the acquittal was unfair and unjust.

Counsel indicated that the LOR  went  away  after  the  applicant  was
promoted to captain, as the regulation intended, but the reference  to
the LOR in the OPR incorporates it by  reference  and  inappropriately
keeps the  LOR  in  his  promotion  file  forever.   Furthermore,  the
statement that he was “associated with an assault” in  the  OPR  under
the promotion recommendation block continues the misstatement of facts
and will continue to interfere with the applicant’s advancement in his
career.  The applicant has proven to be  an  outstanding  officer  and
desires to continue his career in the  Air  Force  as  a  much  needed
pilot.   The  totality  of  these  circumstances  establish  that   an
injustice has occurred to him through the use of these words  in  this
particular choice of punishment by  his  commander.   Those  documents
should not have gone to the promotion board.

A complete copy of counsel’s response is appended at Exhibit F.

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 concerning removal of the
contested Letter of Reprimand (LOR) or any reference to the  LOR  from
his records.   The  applicant’s  complete  submission  was  thoroughly
reviewed and his contentions were duly noted.  However, we do not find
the applicant’s assertions sufficiently  persuasive  to  override  the
rationale provided by the appropriate Air Force  office  (AFLSA/JAJM).
Therefore, in the absence of  sufficient  evidence  that  the  overall
information used as a basis for the LOR was erroneous  or  that  there
was  an  abuse  of  discretionary  authority,  we   agree   with   the
recommendation of AFLSA/JAJM and adopt their rationale  as  the  basis
for our decision that the applicant has failed to sustain  his  burden
of establishing that he has suffered either an error or  an  injustice
when  issued  the  LOR.   To  the  contrary,  the  available  evidence
indicates to us that the actions taken against the applicant were  the
consequence of his own behavior.  Accordingly, we find  no  compelling
basis to recommend removing any reference to the LOR from his records.
 We note that the LOR is no longer a part of the  applicant’s  record;
therefore, removal of the LOR is a moot issue.

4.  Notwithstanding the  above,  we  are  persuaded  by  the  evidence
presented that the LOR should  have  stated  that  the  applicant  was
involved in an “incident” rather than an “assault.”  Inasmuch  as  the
LOR is not filed in his records, no action is required to correct  the
LOR.  However, we recommend that  the  contested  Officer  Performance
Report (OPR) and Promotion Recommendation Form (PRF) be  corrected  to
change “assault on a person” to “incident.”  Even though we  recommend
modifying the contested OPR and PRF, we do not find these  corrections
to be sufficiently substantive to question the outcome  of  the  CY97D
selection board.   Therefore,  we  do  not  believe  referral  of  the
corrected record for consideration by a Special Selection Board  or  a
recommendation for promotion to the grade of captain by the  CY  1997D
selection board would be appropriate.  In view of  the  foregoing,  we
recommend that the applicant’s records  be  corrected  to  the  extent
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:

      a.  The Company Grade Officer Performance Report, AF Form  707B,
rendered for the period 28 Oct 95 through 1  Jan  97,  be  amended  in
Section VI (Rater Overall Assessment), by changing the  word  “assault
on a person” to read “incident.”

      b.  The Promotion Recommendation, AF Form 709, prepared for  use
by the Calendar Year 1997D Central Captain Selection Board, be amended
in  Section  IV  (Promotion  Recommendation),  by  changing  the  word
“assault on a person” to read “incident.”

The following members of the  Board  considered  this  application  in
Executive Session on 16 November 1999, under the provisions of AFI 36-
2603:

                  Ms. Charlene M. Bradley, 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 A.  DD Form 149, dated 18 Dec 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 14 Apr 99.
   Exhibit D.  Letter, HQ AFPC/DPPPA, dated 23 Jun 99.
   Exhibit E.  Letter, SAF/MIBR, dated 12 Jul 99.
   Exhibit F.  Letter from counsel, dated 1 Nov 99.




                                   CHARLENE M. BRADLEY
                                   Panel Chair

AFBCMR 99-00537




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:

            a.  The Company Grade Officer Performance Report, AF Form
707B, rendered for the period 28 Oct 95 through 1 Jan 97, be amended
in Section VI (Rater Overall Assessment), by changing the word
“assault on a person” to read “incident.”

            b.  The Promotion Recommendation, AF Form 709, prepared
for use by the Calendar Year 1997D Central Captain Selection Board, be
amended in Section IV (Promotion Recommendation), by changing the word
“assault on a person” to read “incident.”




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency