RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-00218

                       COUNSEL:  ERIC A. SEITZ

                       HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Education/Training Report (TR) rendered  for  the  period        4
September 1996 through 12 December 1996, be declared void.

The Officer Effectiveness Report (OER) rendered  for  the  period   14
July 1996 through 23 February 1997, be declared void.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reports don’t accurately reflect his  duty  performance.   He  was
removed  from  a  DoD  Equal  Opportunity  School  the  day  prior  to
graduation based on unsubstantiated allegations of  numerous  sexually
suggestive comments made toward several  female  classmates  while  at
school.  The school held a hearing and overreacted to  something  that
could have been resolved at a  much  lower  level.   The  OPR  and  TR
rendered during that period should be removed from his records because
the action was unjustified, allegations were never  substantiated  and
his due process rights at the hearing were denied.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on  extended  active  duty  in  the
grade of Major.

The applicant appealed the contested report under  the  provisions  of
AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports.   The
appeal was considered and denied  by  the  Evaluation  Reports  Appeal
Board (ERAB).

Applicant’s OPR profile since 1990, follows:

            PERIOD ENDING          EVALUATION OF POTENTIAL

                             Meets Standards (MS)
                 24 Jan 91                   MS
                 24 Jan 92                   MS
                 24 Jan 93                   MS
                 24 Jan 94                   MS
                 24 May 94                   MS
                 24 May 95                   MS
                 24 may 96                   MS
            *    12 Dec 96        TR (Referral)
            **   23 Feb 97    OPR (Referral)
                 18 Mar 98                   MS
                 18 Mar 99                   MS

*   Contested Education and Training Report.
**  Contested Officer Effectiveness Report.
_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Promotion, Evaluation & Recognition  Division,  Directorate
of Personnel Program Management, AFPC/DPPPA, reviewed the  application
and states that the applicant has provided statements from all of  the
evaluators on both the contested TR and OPR--none of which support his
appeal efforts.  The applicant also provided four letters  of  support
from fellow classmates  who  are  outside  the  rating  chain  of  the
contested TR and OPR.  The applicant has  not  provided  documentation
with his  appeal  to  substantiate  his  statement.   Therefore,  they
recommend denial of applicant's request.

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

The Senior Attorney-Advisor, AFPC/JA,  reviewed  the  application  and
recommended denial.  Applicant states the allegations against him were
not proved at the Faculty Board.  But apparently the  fact-finders  at
the board, as well as those persons  reviewing  his  appeal,  believed
that sufficient evidence had been presented to establish the truth  of
the allegations.  The Faculty  Board  was  in  the  best  position  to
evaluate  the  allegations  against  the  applicant.    It   had   the
opportunity to see, hear, question, and evaluate the  testimony  given
by both sides.  It would not be prudent to disturb the findings of the
Facility Board merely because the applicant does not agree with them.

Furthermore, the applicant’s delay in  this  case,  in  their  opinion
invokes the equitable doctrine of laches, which denies relief  to  one
who has unreasonably and inexcusably delayed in  the  assertion  of  a
claim.

In this case, the applicant is attempting to attack the findings of  a
Faculty Board that sat over four years ago.  He was unable to  provide
the record of proceedings from this board because the audio tapes made
at the time are inaudible.

They contacted the office of the Director of Academics at the  Defense
Equal Opportunity Management  Institute  (DEOMI)  to  gather  whatever
information might still exist regarding this  case.   They  were  told
that the school did not maintain any records for  a  case  that  would
have been heard in  late  1996.   DEMOMI  Operating  Instruction  50-2
required audio tapes of Faculty Board proceedings to be  retained  for
only three years.  As a result, even if the  tape  had  been  audible,
they would have been unable to obtain  it  unless  the  applicant  had
previously obtained it and chose to provide it.  As a  result  of  the
applicant’s delay, they have been denied the ability to  independently
gather  and  consider  any  information  about  the  circumstances  of
applicant’s disenrollment other than what applicant chooses  to  share
with the BCMR.

This circumstance clearly has  prejudiced  their  ability  to  comment
fully on applicant’s allegation that the Faculty Board’s decision  was
not based on sufficient proof.  The applicant has provided  no  reason
for waiting three years to  file  his  application.   Therefore,  they
believe both elements necessary to invoke  the  doctrine  of  laches--
inexcusable delay and prejudice to the  responding  party,  have  been
established.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the evaluations and provides his comments 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.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable error  or  injustice  warranting  corrective
action.  The presence of the Faculty Board proceedings  clearly  would
have eased the review of this application; however, the Report  is  no
longer  available,  therefore,  our   decision   is   based   on   the
documentation presented with this appeal.
After thoroughly reviewing the documentation, we  are  persuaded  that
the Education/Training Report dated 12 December 1996 should be amended
to remove any derogatory information and that the Officer  Performance
Report, closing 23 February  1997  and  all  associated  documents  be
removed from his records.  We are persuaded that the contested reports
are not accurate assessments of  applicant’s  performance  during  the
contested time periods.   Understandably,  any  allegation  of  sexual
harassment should be seriously considered;  however,  after  reviewing
the applicant’s submission, we do not believe that his actions rose to
the level of sexual harassment.  In our opinion,  this  is  clearly  a
case of “he said, she said.”  We noted that the allegations apparently
surfaced at the end of the four-month DEOMI course in which  applicant
was  enrolled.   We  find  no  persuasive  evidence  to  support   the
allegation of sexual harassment from the three female  classmates  who
accused the applicant, nor do we find any evidence that the  applicant
was  ever  counseled  while  he  was  enrolled  at  DEOMI  for  sexual
harassment.  Considering  the  nature  of  the  school  in  which  the
applicant was enrolled, we believe that if there was any perception of
sexual harassment by the applicant, action would have  been  taken  at
the time the harassment occurred.  Further, we  noted  the  statements
from several of the applicant’s classmates who indicated they did  not
observe applicant ever sexually harassing these individuals.  In fact,
it appears that the applicant  conducted  himself  in  a  professional
manner.  It is also noted that not only did  applicant  do  very  well
academically, ranking 6th out of 134 students  during  the  four-month
training class, he was voted by his classmates as  the  most  valuable
contributor  to  his  group.   Additionally  noted  is  the  statement
provided from the additional rater on the  contested  OPR,  indicating
that he questioned the truth of the allegations.  While we normally do
not substitute our  judgement  for  that  of  the  commander,  who  is
generally in the best position to judge the merits of such situations,
we believe, after considering the totality  of  the  circumstances  of
this case, there  is  sufficient  doubt  regarding  whether  applicant
sexually harassed the three female officers and that any doubt  should
be resolved in his favor.  In view of the above and in  an  effort  to
remove any further injustice to applicant, we recommend his records be
corrected as indicated below.

_________________________________________________________________

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 Education/Training Report, AF Form 475,  rendered  for
the period 4 September 1996 to 12 December 1996 was amended in Section
II, Report Data, Block 2 by removing the  “X;”  and  in  Section  III,
Comments, Professional Qualities, by removing the statement “Displayed
inappropriate conduct that was not within  standards  of  professional
military behavior.”

      b.    The Field Grade Officer Performance Report, AF Form  707A,
rendered for the period 14 July 1996 to 23 February 1997, be  declared
void and removed from his records.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 13 July 2000, under the  provisions  of  AFI  36-
2603:

            Mr. Vaughn E. Schlunz, Panel Chair
            Mr. Charlie E. Williams, Jr., Member
            Ms. Dorothy P. Loeb, Member

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

      Exhibit A. DD Form 149, dated 14 January 2000.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPA, dated 10 March 2000.
      Exhibit D. Letter, AFPC/JA, dated 24 March 2000.
      Exhibit E. Letter,SAF/MIBR, dated 7 April 2000.
      Exhibit F. Counsel’s Response, dated 3 May 2000.




                                   VAUGHN E. SCHLUNZ
                                   Panel Chair

 AFBCMR 00-00218




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 Education/Training Report, AF Form 475,
rendered for the period 4 September 1996 to 23 February 1997, be
amended to read completion by removing the “X” in section II, block
2;.  Remove the statement  in section III and delete the statement
“Displayed inappropriate conduct that was not within standards of
professional military behavior” listed under “Professional Qualities.”

                       b.         The Field Grade Officer Performance
Report (OPR) AF Form 707A rendered for the period 14 July 1996 to 23
February 1997, be, and hereby is, declared void and removed from his
records.





      JOE G. LINEBERGER
      Director
      Air Force Review Boards Agency