RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 00-01302
      INDEX CODE 131.09   134.01   134.02   111.01   111.05
      XXXXXXXX   COUNSEL:  Kenneth H. Gray

      XXXXXXXX   HEARING DESIRED: Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Letter of Reprimand (LOR) dated 6  Jun  97  and  the  referral
Officer Performance Report (OPR) closing 10 Jun 97  be  declared  void
and removed from his records.

2.  The Family Advocacy record and all references to  child  abuse  be
removed from his records as well as the medical records  of  his  wife
and child.

3.   He be promoted to the grade of lieutenant  colonel  (LTC)  as  if
selected  for  promotion  by  the  Calendar  Year  1997C  (CY97C)  LTC
Selection Board.
_________________________________________________________________

APPLICANT CONTENDS THAT:

These records are in error and punitive measures were taken  unjustly.
The  primary  reason  was  the  erroneous  assumption   of   malicious
mistreatment in light of an inadmissible police report and  a  cursory
perception of the  “facts”  without  regard  for  personal  intent  or
motivation. This incident was completely resolved with proof  that  no
intentional or criminal mental state was involved and  never  had  any
bearing on his Air Force performance nor involved  any  infraction  of
any regulation/instruction pertaining to Air Force policies.

A copy of his complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

During the period in question, the applicant was  a  flight  commander
with the 34th Training Squadron at the USAFA Academy (USAFA).

According to the 2 Jun 97 AF Office of Special Investigations  (AFOSI)
report, the applicant struck his two-year-old daughter’s
buttocks and thighs numerous times on 11 Apr 97  with  a  10”  leather
strap because she would not eat her food. He admitted to the OSI  that
he struck his daughter  several  times;  the  child’s  nanny  and  the
nanny’s fiancé indicated they counted 60 times.  The  next  day  these
areas of the child’s body were bruised. The nanny showed  the  bruises
to the applicant’s wife when she returned  from  temporary  duty.  The
nanny also took pictures of the bruises to  hold  in  case  of  future
incidents. The film processor who developed  the  pictures  apparently
called the police about possible child abuse. After  speaking  to  the
nanny  about  the  photos,  the  Colorado  Springs  Police  Department
arrested the applicant for child abuse on 15 Apr 97.

The applicant received the contested LOR on 6 Jun 97 and the  referral
OPR on 17 Jun 97. In El Paso County Court, he was found not guilty  of
Child Abuse (Knowing/Reckless)  but  was  convicted  of  the  included
lesser offense of Child Abuse (Negligence). On 11 Mar  99,  the  USAFA
Staff  Judge  Advocate  (SJA)  recommended  the  34th  Training   Wing
commander deny the applicant’s request that the OPR  be  removed.  The
commander concurred  with  the  SJA’s  recommendation.  The  applicant
currently has an Unfavorable Information File (UIF) which will  expire
on 13 Jun 01. The wing commander has the authority to administratively
remove the UIF earlier but thus far has elected not to do so.

The applicant has four promotion nonselections to LTC by the CY97C (21
Jul 97), CY98B (1 Jun 98), CY99A (19 Apr 99), and CY99B  (30  Nov  99)
boards.  The CY97C Promotion Recommendation Form (PRF) had  a  “Do  No
Promote  (DNP)”   recommendation.   The   other   PRFs   had   overall
recommendations of “Promote.”

The remaining relevant facts and details pertaining to this appeal are
contained  in  the  applicant's  military  records  (Exhibit  B),  the
official documents included in his  submission  (Exhibit  A)  and  the
letters prepared by the appropriate offices of the Air Force (Exhibits
C,  D  and  E).  Additionally,  the  Air  Force  Office   of   Special
Investigations (AFOSI) report  on  the  pertinent  incident  was  made
available for the Board’s review.  Accordingly, there is  no  need  to
recite these additional facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Director of  Operations,  Family  Advocacy  Division,  AFMOA/SGOF,
reviewed this appeal with regard to the  Family  Advocacy  record  and
related references and provided her rationale for recommending denial.

A complete copy of the evaluation, with attachments, is at Exhibit C.

The Chief, Field Activities  Division,  HQ  AFPC/DPSF,  reviewed  this
appeal with  respect  to  the  LOR  and  provided  his  rationale  for
recommending denial.

A complete copy of the evaluation is at Exhibit D.

The Acting Chief, Appeals & SSB Branch, HQ AFPC/DPPPA,  reviewed  this
appeal and provided his rationale for recommending denial.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 Oct 00, the applicant provided a supporting statement  from  his
squadron commander at the time of the incident. The  former  commander
indicates he supports the applicant’s appeal.

A complete copy of the statement 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.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or  injustice.   After  reviewing  the
available documentation, including the AFOSI report, a majority of the
Board believes the pertinent incident was an aberration  triggered  by
the applicant’s well-intentioned, but unfortunate, misapplication of a
religious child-rearing guide. In our view, the applicant was  harshly
and erroneously punished for an unintentionally injurious disciplinary
incident. As a result, the Board majority is  convinced  the  LOR  and
related documents had a devastatingly unjust impact on the applicant’s
promotion opportunities for  LTC.  Consequently,  the  Board  majority
recommends the potentially misleading LOR and referral OPR, as well as
the UIF, the CY97C “DNP” PRF, and child abuse references in the Family
Advocacy and medical records of  the  applicant  and  his  family,  be
expunged.

4.    This brings us to the applicant’s request for  direct  promotion
to LTC. Were it not for this incident, the Board majority  believes  a
strong possibility exists that the applicant  would  have  received  a
“DP” recommendation  and  the  CY97C  board  most  likely  would  have
selected him as one of the best  qualified  candidates  based  on  his
superior performance record up to that time.  However, even  with  the
above-recommended corrections to the applicant’s record, the  majority
of the Board is concerned  that  the  prejudice  established  by  this
incident will still adversely affect his chances of receiving full and
fair promotion consideration for LTC by the CY97C SSB. In this regard,
we note the additional rater requested the wing commander  remove  the
LOR from the applicant’s selection folder,  asserting  that  prior  to
this incident the applicant was one of the strongest  contenders  from
the  group   for   a   “Definitely   Promote   (DP)”   recommendation.
Nevertheless, the wing commander, as the senior rater, opted  to  give
the applicant a “DNP” recommendation on the CY97C PRF and  denied  the
additional  rater’s  request  to   remove   the   LOR.   Under   these
circumstances, and considering  the  frailties  of  human  nature,  we
believe the applicant stands little chance of receiving an unbiased re-
evaluation and an upgraded PRF. Therefore, the Board majority  further
recommends the applicant be directly promoted to the grade of  LTC  as
if selected by the CY97C 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 Letter of Reprimand dated 6 Jun 97, with  the  resultant
Unfavorable Information File;  the  Field  Grade  Officer  Performance
Report, AF Form 707A, rendered for the period closing 10 Jun  97;  the
“Do Not Promote” Performance Recommendation Form for the Calendar Year
1997C (CY97C) Lieutenant Colonel Selection Board; and  all  references
to child abuse in the Family  Advocacy  record  and  in  his  and  his
family’s medical  records  be  declared  void  and  removed  from  his
records.

      b.  He was selected for promotion to  the  grade  of  lieutenant
colonel by the CY97C board and, upon Senate confirmation, promoted  to
that grade, effective and with a date of rank of 1 Aug 98.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session  on  4  October  and  1  November  2000,  under  the
provisions of AFI 36-2603:

                  Mr. Teddy L. Houston, Panel Chair
                  Mr. Christopher Carey, Member
                  Ms. Diana Arnold, Member

Mr.  Houston  and  Ms.  Arnold  voted  to  correct  the  records,   as
recommended. Mr. Carey voted to deny the case in its entirety and  has
provided a Minority Report at Exhibit G.   The  following  documentary
evidence was considered:

   Exhibit A.  DD Form 149, dated 5 May 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFMOA/SGOF, dated 12 Jun 00, w/atchs.
   Exhibit D.  Letter, HQ AFPC/DPSF, dated 28 Jun 00.
   Exhibit E.  Letter, HQ AFPC/DPPPA, dated 18 Jul 00.
   Exhibit F.  Letter, SAF/MIBR, dated 28 Jul 00.
   Exhibit G.  Minority Report.
   Exhibit H.  CADRE/ARJ Supporting Statement, dated 24 Oct 00.




                                   TEDDY L. HOUSTON
                    Panel Chair





MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
                   MILITARY RECORDS (AFBCMR)

FROM: SAF/MI

SUBJECT:     Docket No: 00-01302

      After carefully considering all of the circumstances of this case,
including the rationale of the minority member of the panel, I agree with
the majority that a degree of relief is appropriate.

      The facts leading to this case are that the applicant admitted to the
OSI that he struck his two-year old daughter numerous times with a leather
strap because the child refused to eat her food.  The spanking raised
bruises on her buttocks and thighs the next day.  The child’s nanny, who
was in another room overheard the incident and took pictures of the bruises
to protect herself.  After developing the photographs, the film processor
called the police and the applicant was arrested and charged with child
abuse.  The civilian court subsequently found the applicant not guilty of
Child Abuse (Knowing/Reckless) but convicted him of the lesser offense of
Child Abuse (Negligence).  The USAF Academy Family Advocacy Treatment
Manager subsequently advised that the applicant and his wife had completed
the equivalent of the six-week Systematic Training for Effective Parenting
Class.  It was also determined that the applicant displayed no symptoms of
psychopathology; that there was no need for further individual counseling;
and that this was an isolated incident.

      Applicant subsequently received a Letter of Reprimand (LOR), a
referral Officer Performance Report (OPR) and a Do Not Promote (DNP)
Promotion Recommendation Form (PRF) for the CY97C Lieutenant Colonel
Selection Board.  Not surprisingly, he was not selected for promotion.  He
was thereafter considered but not selected for promotion to lt colonel by
the CYs 98B, 99A and 99B selection boards with “Promote” recommendations.

      Applicant appealed to the AFBCMR asking that his and the family’s
records be expunged of the derogatory material related to the child abuse
incident, and that he be promoted to the grade of lt colonel as though he
had been selected by the original selection board (CY97C).  In Executive
Sessions of October 4, and November 1, 2000, a majority of the panel
concluded, in effect, that the incident was an aberration triggered by the
applicant’s well-intentioned, but unfortunate, misapplication of a
religious child-rearing guide; and that the permanent destruction of the
applicant’s career because of an unintentional incident was too severe and,
therefore, unjust.  Thus, the majority recommends that the relief be
granted in its entirety.  On the other hand, the minority member recommends
that the relief be denied.  He notes the favorable character references and
the conclusion by the State that the applicant does not currently pose a
threat to the well-being of his children and believes that such
considerations are relevant in the consideration of clemency.  Nonetheless,
the minority member does not believe that this is an appropriate case for
clemency.  I do not agree.

      There is no question that the spanking incident occurred and I do not
necessarily disagree with the conclusion that the applicant exercised poor
judgment in disciplining his daughter as he did.  Since the applicant used
poor judgment, albeit unintentional, the commander was certainly within his
right to act as he did.

      Nonetheless, I note the extraordinary support from superior officers
attesting to the applicant’s character and integrity.  The thrust of which
is that this incident was a one-time aberration and that the applicant’s
otherwise stellar performance warrants a second chance.  Secondly, I note
that the State apparently did not consider the applicant a threat to his
children since the child in question was never removed from the family
home.  Also, the applicant’s additional rater recommended that the LOR be
removed and that he be given a “DP” recommendation for the next selection
board.  He indicated that due to lack of criminal intent, the LOR focus is
inappropriate.  He also added that prior to this incident, the applicant
was one of the strongest contenders from the Group for a DP.  He was one of
five nominees out of 35 candidates selected for Field Grade Officer of the
Year and has always been a stellar performer.  Based on the verdict, he has
no question about the applicant’s ability to hold higher rank -- he can do
it well.  In consideration of this and the applicant’s overall record of
superior performance, I agree with the Board majority that the applicant
may very well have received a “DP” for his IPZ consideration and would have
been selected for promotion had this unfortunate incident not occurred.

      In summary, I do not condone the applicant’s serious lapse in judgment
that led to his dilemma.  Nevertheless, in view of the overwhelming
evidence that the abuse of his child was strictly unintentional, I find no
compelling basis to deprive him of selection for promotion to the grade of
lt colonel.  To grant his request in its entirety, however, would be an
indication that he was vindicated.  Since this is not the case, I believe
that a delayed promotion to lt colonel with the loss of thousands of
dollars in pay and allowances and, leaving the permanent records intact, is
more than ample punishment for his transgression.  This philosophy is
supported by the fact that the LOR is intended to be used to reprove,
correct and instruct subordinates who depart from acceptable norms of
conduct or behavior, on or off duty, and help maintain established Air
Force standards of conduct or behavior.  Although it frequently does, there
is no indication that the LOR is intended to end an officer’s promising
career.




                                       RUBY B. DEMESME
                                       Assistant Secretary
                                       (Manpower, Reserve Affairs,
                                           Installations & Environment)





AFBCMR 00-01302




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 XXXXXXXXXX, be corrected to show that he was
selected for promotion to the grade of lieutenant colonel by the
Calendar Year 1999B Lieutenant Colonel Selection Board and, upon
Senate confirmation, he be promoted to that grade, effective and with
a date of rank of 1 June 2000.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency