RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01055
                 INDEX CODE 134.00
                 COUNSEL:  J. C. DeMers

                 HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Any derogatory references to  his  conduct  be  removed  from  his
record, to include the following:

           a.  The referral Officer Performance Report (OPR)  for  the
period 29 June 1994 through 28 June 1995.

           b.  Personnel  Reliability  Program  (PRP)  decertification
action dated 1 November 1995.

           c.  The  Article  15,  Uniform  Code  of  Military  Justice
(UCMJ), dated 20 November 1995.

           d.  The 29 January 1996 memo from  the  90th  Missile  Wing
Commander (90 MW/CC) to the 20th Air Force Commander (20 AF/CC).

           e.  Page 1 of  the  applicant’s  16  January  1996  59-page
rebuttal against placing the Article 15 in his selection folder.

           f.  The “memorandum of [the 20 AF/CC] and attachments.” [No
date specified; presumably it’s the 3 February 1996 memo  placing  the
Article 15 in applicant’s records.]

           g.  The 9 September 1996 Legal Opinion by the 90  MW  Staff
Judge Advocate (SJA) to the 90 MW/CC.

2.  He be reinstated to the list of officers selected for  captain  by
the Calendar Year 1994C (CY94C) Captain Selection Board  and  promoted
effective and with a date of rank of 29 May 1995.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel provides a brief, with  numerous  attachments,  asserting  the
Article 15 punishment was improper and unlawful  because  it  punishes
alleged conduct more than three years prior  to  imposition.  Further,
Captain L---, defense counsel in the  Article  15  proceedings  had  a
conflict of interest in this case. The taint of the allegations of the
17 December 1994 incident has kept the applicant  from  receiving  the
promotion for which he was selected
and which essentially forced him to resign from his Air Force  career.
These allegations were based on the word of Second Lieutenant (2Lt) R--
-, a confessed liar.

A copy of the applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

During the period in question, the applicant was a 1Lt assigned  as  a
Minuteman III ICBM Alternate Command Post Crew Commander at the  320th
Missile Squadron (320 MS) at F. E. Warren AFB, WY.

He was selected for promotion to the grade of captain, to be effective
29 May 1995, by the CY94C board, which convened on 12 September 1994.

On 18 January 1995, the 90 MW Inspector General (90 MW/IG) appointed a
senior officer to  conduct  an  investigation  into  allegations  that
missile crews were leaving launch  control  center  blast  doors  open
during missile  alert  tours  in  violation  of  higher  headquarters’
regulations. On 27 January 1995,  the  20  AF/CC  granted  testimonial
immunity to 2Lt R---.

The investigation concluded on 24 February 1995 and contained a formal
finding  that  the  applicant  had  engaged  in  the   above-mentioned
misconduct.  As a result, on 12 May 1995 the  following  court-martial
charges were preferred against the applicant:  Charge  I  -  Making  a
false  official  statement  to  his  squadron  commander   [that   the
applicant’s deputy (2Lt R---) had  opened  the  blast  door  while  he
slept].  Charge II - Dereliction of duty  [in  willfully  opening  the
launch  blast  door,  taping  over  speakers,  silencing  alarms,  and
punching phone lines]. Charge III  -  Wrongful  interference  with  an
adverse administrative proceeding  [by  attempting  to  influence  the
testimony of  witnesses].   Charge  IV  -  Conspiracy  to  make  false
official statements [with his deputy  regarding  who  left  the  blast
doors open].

On 28 May 1995, the applicant  was  notified  by  his  commander  that
action was being initiated to delay his promotion for six  months  due
to serious allegations involving multiple violations of the  UCMJ.  On
12 August 1995,  the  applicant  tendered  his  resignation,  with  an
effective date of 7 October 1996. The promotion delay was approved  on
5 September 1995.

An Article 32 Investigation was conducted on 6 and 7  September  1995.
According to his 15 September 1995 report, the  Investigating  Officer
(IO) concluded that there was sufficient evidence to proceed to  trial
on Charges I, II and IV. The IO
indicated that while 2Lt R--- was an individual who  had  given  false
official  statements  and  testified  under  a  grant  of  testimonial
immunity, the essential elements of his testimony were corroborated by
a 1Lt R---. The IO was not persuaded by  defense  arguments  that  any
evidence should be excluded  pursuant  to  their  objections.  The  IO
recommended  that  Charge  III  should  be  dismissed  because  of   a
significant typographical error [that made the charge  confusing]  and
the  fact  that  it  mentions  an  investigation   into   blast   door
configuration that did not commence until much later.   The  remaining
three charges should be referred to  trial,  with  amendments  to  the
dates in Charge II. However, the commander  decided  to  withdraw  the
court-martial charges.

In the meantime, on 9 September 1995, the 90 MW SJA completed a  legal
opinion on the applicant’s request for separation. The  SJA  concluded
there was no question the applicant was derelict in his duty and  took
covert and illegal steps to keep his misconduct  from  his  commander.
While involuntary discharge action was a viable option, the SJA opined
that, to  avoid  a  lengthy  separation  process  and  facilitate  the
applicant’s expeditious separation, acceptance of his resignation  was
a more appropriate resolution.

On 26 September 1995, the contested OPR was referred to the applicant.
Block 3, Professional Qualities, of Section  V,  Performance  Factors,
was marked  “Does  Not  Meet  Standards.”  The  applicant  provided  a
rebuttal on 29 September 1995; however, the additional rater  and  the
reviewer both concurred with the rater.

On 26 October 1995, the 90 MW/CC notified the applicant of his  intent
to administer nonjudicial punishment pursuant to Article 15 for making
a false official statement and conspiracy to  make  a  false  official
statement on or about  17  December  1994,  and  dereliction  of  duty
between on or about 6 August 1992 and on or about 17 December 1994, in
violations of Articles 107, 81,  and  92.  After  consulting  with  an
attorney, the applicant  elected  to  accept  nonjudicial  proceedings
rather than request a court-martial. He indicated he wanted to make  a
non-public  oral  presentation  and  provide  written  materials.   On
20 November 1995, the 90 MW/CC determined the applicant committed  the
offenses and imposed punishment consisting of  forfeiture  of  $750.00
pay per month for two months and a reprimand. The applicant  appealed,
submitting matters in writing.

In the interim, on 1 November  1995,  the  applicant  was  permanently
decertified from the PRP.

On 27 November 1995 the commander notified the applicant  that  action
was being initiated to remove his name from the  promotion  list.  The
memo specifically outlined the reasons for this action.

On 2 January 1996, the 20 AF/CC  denied  the  applicant’s  Article  15
appeal.  On 15 January 1996, the 90 MW/CC  advised  the  applicant  he
intended to place the Article 15 in the applicant’s selection  folder.
The applicant provided a 59-page rebuttal dated 19 January 1996. On 29
January 1996, the 90 MW/CC provided a memo to the 20 AF/CC, addressing
the applicant’s 59-page rebuttal and his allegation that various field
pass-on books contain exculpatory evidence, as well  as  a  referenced
memo from a captain.  On 3 February 1996, the 20 AF/CC determined that
the Article 15 should be placed in the applicant’s selection folder.

The applicant submitted a written response to the removal action on 11
January 1996.  On 27 February 1996, his attorney submitted  additional
material to be reviewed in rebuttal to the removal action.  On 30 July
1996, the Secretary of the Air Force directed the applicant’s name  be
removed from the CY94C selection list.

The applicant  was  honorably  discharged  in  the  grade  of  1Lt  on
7 October 1996, Completion of Required Active Service, with 7 years, 6
months and 20 days of active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  reviewed
this appeal and advises that, since nonjudicial punishment  cannot  be
imposed for offenses committed more than two years before the date  of
imposition, punishment cannot be imposed for the 6 August 1992 offense
but it can for the 17 December 1994 offense. Even if the 6 August 1992
offense is thrown out, the imposed punishment  was  still  far  within
legal limits. The applicant argues that Captain L--- had a conflict in
this case but fails to specifically identify the same.  The  applicant
was properly and thoroughly represented by  counsel  and  given  ample
opportunity to provide written responses to the commander. There is no
evidence the applicant’s group  commander,  who  may  have  made  some
comments at a briefing  regarding  blast  door  security  and  officer
integrity, prejudged the  applicant’s  case.   Nor  could  this  group
commander, as  the  commander’s  subordinate,  have  exerted  unlawful
influence on the commander. The Article 15 punishment is within  legal
limits  and  appropriate  to  the  offenses.  Therefore,   denial   is
recommend.

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

The Chief, Appeals & SSB Branch, HQ  AFPC/DPPPA,  also  evaluated  the
case and indicates the applicant does not specify how the referral OPR
should be corrected. Statements  from  the  pertinent  evaluators  are
conspicuously absent.  Evaluation reports are
considered accurate as written  unless  substantial  evidence  to  the
contrary is provided. As the author is  not  convinced  the  contested
report is inaccurate, denial is recommended.

A copy of the complete evaluation is attached at Exhibit D.

The Chief, Officer Promotion &  Appointment  Section,  HQ  AFPC/DPPPO,
advises that the applicant was provided all  supporting  documentation
and given sufficient opportunity to  respond  to  the  removal  action
taken by the commander. The removal package  received  numerous  legal
reviews and was found to be legally  sufficient.  Applicant’s  request
for reinstatement of promotion should be denied.

A copy of the complete evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel submits a brief specifying which documents in the  applicant’s
records are tainted  and  should  be  corrected  or  removed.  Counsel
counters  the  arguments  contained  in  the  Air  Force  evaluations,
specifically  AFLSA/JAJM’s.  Counsel  contends  the  applicant  is  an
honorable man who came up through the enlisted ranks, attended the Air
Force Academy and was promoted to captain. All  this  was  taken  away
when a known liar made accusations against the applicant to  save  his
own skin. This error and injustice should not continue uncorrected.

A complete copy of counsel’s response, with attachments, is 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. Careful deliberation was
given to the evidence and troublesome circumstances of this  difficult
case. The Article 15 charged the applicant with  dereliction  of  duty
between on or about 6 August 1992 and on or about  17  December  1994.
In our view, due to the two-year statute  of  limitations  imposed  on
nonjudicial  punishment,  the  applicant  can  only  be  charged  with
dereliction of duty sometime between 16 December 1992 and 17  December
1994.  The testimony provided in the Article  32  investigation  would
indicate that, in addition to the incident on 16-17 December 1994, the
applicant had on previous occasions left  the  launch  control  center
blast door open, “field punched” phone  lines,  and  disabled  alarms.
Consequently, we agree with the AFLSA/JAJM Associate  Chief  that  the
Article 15 still appears to  be  within  legal  limits.  The  2Lt  who
implicated the applicant after being granted immunity  was  clearly  a
self-serving individual who, at the very least, was guilty of sleeping
on duty during the December 1994 incident. The possibility also exists
that the 1Lt who corroborated the 2Lt’s testimony may have harbored  a
personal  dislike  for  the  applicant.  Nevertheless,  the  available
evidence does not establish that either one of these  individuals  was
lying when testifying that the applicant did not  comply  with  proper
procedures. The applicant opted for nonjudicial punishment in lieu  of
court-martial, which would have had a  higher  standard  of  evidence.
Therefore,  we  must  render  a  decision  based  on   the   available
documentation, and the applicant’s submission has not invalidated  the
evidence against him. Thus, we cannot exonerate him of dereliction  or
making false statements. Given the serious ramifications that may have
resulted from his dereliction,  we  do  not  find  the  actions  taken
against him were inappropriate  or  the  result  of  improper  command
influence. The applicant’s contentions were fully considered,  but  he
has failed to sustain his burden that he has suffered either an  error
or an injustice. In view of the above and absent  persuasive  evidence
to the contrary, we find no compelling basis to recommend granting the
relief sought.

4.    The documentation provided with this case was sufficient to give
the Board a clear understanding of the issues involved and a  personal
appearance, with or without legal counsel, would not  have  materially
added to that understanding.  Therefore, the request for a hearing  is
not favorably considered.

_________________________________________________________________

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 16 March 1999 under the  provisions  of  AFI  36-
2603:


                       Mrs. Barbara A. Westgate, Panel Chair
                       Mr. Lawrence R. Leehy, Member
                       Ms. Melinda J. Loftin, Member


The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 11 Apr 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 3 Jun 98.
   Exhibit D.  Letter, HQ AFPC/DPPPA, dated 28 Jun 98.
   Exhibit E.  Letter, HQ AFPC/DPPPO, dated 17 Aug 97 [sic].
   Exhibit F.  Letter, AFBCMR, dated 15 Sep 98.
   Exhibit G.  Letter, Counsel, dated 19 Oct 98, w/atchs.




                                   BARBARA A. WESTGATE
                                   Panel Chair