RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03257
                             INDEX CODE:  126.04

        xxxxxxxxxxxxxxxxx    COUNSEL: CHARLES W. GITTINS

        xxxxxxxxxxx    HEARING DESIRED: YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15, Uniform Code  of  Military
Justice (UCMJ), dated 7 November 1997, be set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel for the applicant states that applicant was accused by an Air  Force
enlisted  female  of  attempting  to  engage  in  sexual  intercourse.    In
accordance with his rights under Article 15, UCMJ and AFI 51-202,  applicant
requested through his military counsel, to review all the evidence that  the
commander  considered  in  deciding  whether  to  impose  the   non-judicial
punishment.

The Air Force Inspector  General  (IG)  conducted  an  investigation,  which
served as the basis for the  commander  to  impose  nonjudicial  punishment.
The applicant requested to review the report in  its  entirety  so  that  he
could prepare his defense.  However, the  command  judge  advocate  and  the
commander refused all of applicant’s counsel’s requestS for  access  to  the
evidence for review  and  preparation  for  the  Article  15  UCMJ  hearing.
Applicant  was  provided  a  three-page  excerpt  of  a   portion   of   the
investigation, which had been redacted of all names except  his  name.   The
redacted pages were not consecutive pages, leaving applicant without a  full
review of the facts.

Applicant accepted the Article 15, because he desired to avoid  the  expense
and publicity of a trial.  He denied the allegations of misconduct.  He  was
found guilty of a lesser offense of an attempt to violate a  lawful  general
regulation at the hearing.  The serious allegations of adultery and  conduct
unbecoming an officer were dismissed  at  the  hearing  and  punishment  was
imposed.  Applicant was called upon to show  cause  why  he  should  not  be
administratively separated.  Since he was retirement  eligible,  he  elected
to request voluntary retirement, which was approved.

Applicant was denied  his  fundamental  rights  to  evidence  prior  to  his
Article 15.  He requested to review the evidence  including  the  entire  IG
report so that he could prepare his defense.   He  received  access  to  the
evidence long after the Article 15 punishment was imposed.  He learned  that
his accuser had been granted immunity  and  that  she  admitted  to  serious
criminal misconduct of her own  prior  to  being  provided  immunity.   Only
after she was immunized and had a reason to seek to  avoid  prosecution  for
her own misconduct did she name applicant as a person who had  attempted  to
have sex with her.

Had applicant been provided this withheld information, he  would  have  been
in a position to  attack  the  credibility  of  his  accuser  with  specific
evidence of her false statements to IG  investigators.   The  importance  of
this evidence cannot be understated because contrary to the accuser’s  sworn
statement to the IG, after applicant provided his statement,  he  was  found
“not guilty.”  Applicant was denied the right to evidence  and  then  forced
to choose whether to accept an Article 15, as a  forum  for  disposition  or
demand trial.  Applicant chose the least serious forum  for  disposition  of
his alleged misconduct despite  the  fact  that  his  commander  refused  to
accord him the rights demanded in such  a  forum.   If  he  was  provided  a
review of the complete investigation, he and his attorneys would  have  been
able to provide specific credible rebuttal to the  specific  allegations  of
misconduct, that ultimately boiled down to  a  “solicitation.”   Regulations
have not been complied with  prior  to  filing  a  record  in  an  officer’s
military record.  Accordingly, the record of Article 15, which  was  created
only after denial of  this  substantial  procedural  right,  and  all  other
records relating to the Article 15 punishment should  be  removed  from  his
military personnel file.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 17 May 1974 the applicant was commissioned in the Air Force  Reserve,  in
the grade of second lieutenant.  He was progressively promoted to the  grade
of lieutenant colonel on 7 March 1992.

On 6 August 1997, applicant  was  notified  of  his  commander's  intent  to
impose nonjudicial punishment upon him for wrongfully attempting  to  engage
in sexual intercourse with an enlisted female, and  two  counts  of  conduct
unbecoming an officer and a gentleman, for wrongfully attempting  to  engage
in sexual intercourse with an enlisted  female  in  the  presence  of  other
officers and for wrongfully placing the foot of an enlisted  female  in  his
mouth in the presence of other officers and enlisted members.

After consulting with counsel, applicant waived his  right  to  a  trial  by
court-martial, did  not  request  a  personal  appearance  and  submitted  a
written presentation.

On 11 September 1997,  the  commander  determined  that  the  applicant  was
guilty and imposed the following punishment:  forfeiture  of  $2,564.40  per
month for two months and a reprimand.

Applicant did not appeal the punishment.  The Article 15 was  filed  in  his
Unfavorable Information File (UIF).

On 15 March 1998, applicant was relieved  from  his  current  assignment  at
Keesler AFB, assigned to the retired Reserve section and placed on the  USAF
Reserve Retired List in the grade of lieutenant colonel.

On 22 July 1998, The Officer Grade Determination Board recommended that  the
applicant be retired in the grade of lieutenant colonel.

On 30 July 1998, the Secretary of the Air Force directed that the  applicant
be retired in the grade of lieutenant colonel.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Chief,  Military  Justice  Division,  Air  Force  Legal  Services
Agency AFLSA/JAJAM, reviewed the application and states that in response  to
applicant's contentions, paragraph 4a(3) of Part V of the Manual for  Court-
Martial, “Non-judicial Punishment Procedure,” states that the notice of non-
judicial punishment shall include “a brief summary of the  information  upon
which the allegations are based or a statement that  the  member  may,  upon
request, examine available statements and evidence. . .”   Paragraph  1c  in
the “Rights of Member” section of the AF Form 3070, “Record  of  Nonjudicial
Punishment Proceedings,” states that the accused has the  right  to  examine
the evidence against him before he makes an decision.

Paragraph 3.4 of AFI 51-202, “Nonjudicial  Punishment,”  states:  “Providing
Evidence to the Member.  After the commander serves AF  Form  3070,  members
have a right to  examine  all  statements  and  evidence  available  to  the
commander,  unless  privileged  or  restricted  by   law,   regulation,   or
instruction.”   The  introduction  section  of  AFI   51-202   states   that
“compliance with this publication is mandatory.”   Thus,  it  was  mandatory
for the commander in the subject  case  to  provide  to  the  applicant  all
statements  and  evidence  available  to  him  unless  such   material   was
privileged or restricted.  Although the evidence involved was  contained  in
an Inspector General’s ROI, which pursuant to  AFI  90-301  requires  SAF/IG
approval for release, there is no indication that such a release was  sought
or that an official determination was made that any  unredacted  information
relating to the applicant’s case contained in  the  ROI  was  privileged  or
restricted.

According  to  the  unsworn  statement  of  the  applicant’s  attorney,  the
information provided consisted  primarily  of  a  three-page  excerpt  of  a
portion of the alleged participant’s  account  contained  in  the  ROI;  the
three pages were not consecutively  numbered;  and,  were  redacted  of  all
names except for that of the accused.  Those pages (ROI D47 pages  34,36,38)
refer to the attempted sexual intercourse and conduct unbecoming an  officer
charges which resulted in findings of not guilty.  The copies  submitted  by
the applicant show that names of third parties allegedly present  have  been
redacted.  Contradicting that account in part, the SJA  maintains  that  all
evidence relied upon by the commander (including ROI  D53,  pages  1-3,  D47
pages 13, 33-37 and 74,75)  was  provided  to  the  applicant  and  that  no
further request for evidence was made by  the  applicant  or  his  attorney.
Only two pages of the material that the SJA  asserts  was  provided  to  the
applicant (D47, pages 74 & 75) refers to the ‘solicitation’  incident  which
resulted in the applicant’s sole finding of  guilty.   The  remaining  pages
relate to the incidents and charges of which the  applicant  was  found  not
guilty.  The SJA’s sworn statement is  silent  as  to  whether  third  party
names were redacted from any of the copies provided  to  the  applicant  and
although  that  fact  cannot  be  independently  determined  from  available
records, copies submitted by the applicant show  redactions  of  some  third
party names.  However, with respect to the ‘solicitation’ incident a  review
of unredacted pages attached to the SJA’s sworn statement  (ROI  D47,  pages
74,75) does not reveal that any other  witness  was  party  to  the  barroom
conversation  between  the  alleged  participant  and  the  applicant   that
resulted in the ‘solicitation’ charge.

Given that the applicant was found  not  guilty  of  the  attempted   sexual
intercourse and conduct unbecoming charges, a failure to provide a  complete
unredacted copy of available evidence with respect to  those  charges,  even
if  it  occurred,  requires  no  further  relief.   With  respect   to   the
‘solicitation’ charge, the sworn statement of  the  SJA  supports  the  fact
that all evidence relied upon by the commander was provided.   There  is  no
evidence in the record available that any witnesses  were  present  for  the
‘solicitation’ conversation or that such witness information, if it  existed
at all, was improperly redacted or withheld.   Most  significantly,  despite
the fact that the applicant was granted a full  opportunity  to  review  the
entire ROI in the course of his grade determination hearing, neither he  nor
his attorney offer a single instance of  “the  specific  credible  rebuttal”
evidence to ‘solicitation’ that  the  applicant  speculatively  has  claimed
such a review, if afforded to him at the time  of  this  Article  15,  UCMJ,
action, would have disclosed.  The applicant has failed to demonstrate  even
after his review of the ROI that it contained any exculpatory or  mitigating
material.   While  he  claims  that  he  was  not  aware  that  the  alleged
participant had been granted immunity  until  review  of  the  ROI,  he  can
demonstrate no legal or factual prejudice from nondisclosure of  that  fact.
Evidence of a grant of immunity is required to be disclosed  to  an  accused
prior to court-martial not prior to the non-judicial  proceedings  that  the
applicant elected to accept instead.  In  any  event,  the  commander  would
certainly have been independently aware of the witness’  grant  of  immunity
and would have been best able to factor that immunity into  any  credibility
determination regardless  of  the  applicant’s  knowledge  of  her  immunity
status.

The applicant’s  remaining  contention,  that  his  forfeiture  of  pay  was
incorrectly calculated appears to have merit.  It was apparently  calculated
based on an active duty  rate  rather  than  the  appropriate  reserve  duty
formula based on pay  and  participation.   However,  that  error  does  not
undermine the procedural or substantive validity of the  Article  15,  UCMJ,
action, itself, and is not of the degree or kind to warrant set aside.   The
proper relief would be to recalculate the forfeitures based on  the  correct
formula  and  reimburse  the  applicant  for  amounts,  if  any,  improperly
forfeited.

The applicant has not offered a valid reason for setting aside  the  Article
15, UCMJ, action.  He was afforded the due process he  was  entitled  to  by
law with respect to the single reduced charge of  which  he  was  ultimately
found guilty.  He had the opportunity to raise the matters  involved  herein
in his written presentation to the commander,  as  well  as  in  any  appeal
thereof, and chose not to do so.  He raised  no  specific  defenses  to  the
charges against him but instead offered an apology  for  his  unprofessional
conduct.  There is no evidence that the applicant  was  or  claimed  at  the
time to be factually innocent or that disclosure of  the  entire  ROI  would
have  exculpated  or  mitigated  his  guilt  or  materially   affected   the
proceedings in any way.  The record supports the fact that  the  applicant’s
Article  15,  UCMJ,  action  received  full  due  process.   Therefore,  the
application should be denied  except  as  to  recomputation  of  forfeitures
based on the appropriate reserve formula.  After a  review  of  the  subject
application and available records, they find the applicant was afforded  all
rights  under  the  UCMJ  and  no  relief  other  than  a  recalculation  of
forfeitures is warranted.  Therefore, they recommend denial  of  applicant’s
request.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The counsel for the applicant reviewed the advisory opinion and states  that
after reviewing Lieutenant Colonel M’s affidavit, it is clear that she  does
not  have  an  accurate  grasp  or  recollection   of   events   surrounding
applicant’s non-judicial punishment.  Her statement  demonstrates  the  lack
of clarity.  After reviewing the advisory  opinion  Captain  K,  applicant’s
area defense  counsel,  provided  an  affidavit  in  which  he  specifically
contradicts  Lieutenant  Colonel  M’s  assertions  concerning  what  he  was
provided.

Article 15, UCMJ, and AFI 51-202, provides an accused  with  a  due  process
right to review all  of  the  evidence  that  the  Commander  considered  in
deciding whether to impose UCMJ punishment.  The evidence considered by  the
commander in this case was the entire IG report; and it is  undisputed  that
applicant was not provided access to the entire IG Report.   It  is  equally
clear that the commander was not provided a redacted copy of the  IG  report
in which the names of all other personnel, were  redacted  from  the  report
(as was  provided  applicant).   By  providing  applicant  with  a  redacted
version of Technical Sergeant F’s testimony, applicant and his counsel  were
denied the opportunity to adequately  represent  applicant  by  interviewing
potential witnesses named by Technical Sergeant  F  who  might  be  able  to
contradict her testimony and undermine her credibility in the  eyes  of  the
commander.  In any event,  redaction  of  alleged  co-actors  and  witnesses
names fell far short of the standard of providing applicant with all of  the
evidence considered by the commander, as is mandated  by  Article  15,  UCMJ
and AFI 51-202.

As for Lieutenant Colonel M’s statement that  she  provided  applicant  with
pages 74 and 75 of Technical Sergeant F’s testimony, this is false.  If  she
had provided these pages,  it  is  probable  that  applicant,  his  military
counsel or civilian counsel would have copies of  the  documents  and  would
not claim, as they collectively do in this application, that they  were  not
provided.  The same is true of the verbatim testimony of Lieutenant  Colonel
B, which no counsel representing applicant has ever seen.

Lieutenant Colonel M’s competence has already  come  into  question  in  her
approval of the illegal quantum of punishment imposed  in  this  case.   She
has every reason to maintain that she complied with her  duties  to  provide
applicant access to  all  evidence  when  it  is  clear  from  the  redacted
material attached to Captain K’s affidavit that she failed  to  comply  with
the governing regulation.  Although the attachments to  her  affidavit  have
not been provided to counsel, it is reasonable to assume that they have  not
been redacted in any way.  If they have not been redacted,  how  can  it  be
explained that the copies of Technical Sergeant F’s statement - as found  in
the files of all defense counsel and applicant -  all  have  been  redacted?
Certainly the only party with an interest in redacting  names  from  the  IG
report was the Government’s.  Applicant had  no  care  whatsoever  that  the
identities of others not be disclosed.  His interest  was  directly  to  the
contrary and through  his  military  counsel  he  did  specifically  request
access to the non-redacted entire report, which was denied.

It is clear that the decision whether applicant was provided access  to  all
the evidence against him considered by the commander,  as  was  required  by
the governing  AFI,  depends  entirely  on  the  credibility  of  Lieutenant
Colonel M, whose recollections in certain material particulars  are  clearly
and undeniably wrong.  Where, as here, credibility is  central  to  deciding
an issue before the AFBCMR, the Board must  resolve  the  credibility  issue
through a hearing.  Applicant requests a hearing where he  may  present  the
testimony of the relevant witnesses and have  their  credibility  judged  by
the members of the Board.  In the alternative, it is respectfully  submitted
that based on  Lieutenant  Colonel  M’s  error  in  identifying  applicant’s
civilian  counsel  and  the  continuous  pages  of  Technical  Sergeant  F’s
testimony allegedly provided  to  applicant,  that  Lieutenant  Colonel  M’s
affidavit should not be believed and the evidence submitted  by  Captain  K,
Captain B.M., and undersigned counsel, which contradicts Lieutenant  Colonel
M’s testimony should be accepted.  It is  respectfully  submitted  that  the
evidence clearly and convincingly demonstrates  that  applicant  was  denied
the right to have access to  all  of  the  evidence  against  him  prior  to
choosing to accept or reject  Article  15,  UCMJ  punishment  and  that  his
rights set forth in AFI 51-202 and the Notification of Rights were  violated
and the punishment imposed was, therefore invalid.

Counsel's complete response, with attachments, is attached at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Directorate of Debt and Claims Management, DFAS-DE/FYCC,  also  reviewed
this application and states that on 5 February 1998,  a  forfeiture  in  the
amount of $1,973.52 was posted  to  the  applicant’s  reserve  pay  account.
Applicant was discharged from the Reserves on 14 March 1998.  No  collection
of the forfeiture was  made  out  of  his  reserve  pay.   Upon  applicant’s
separation from the Reserves the uncollected debt  was  transferred  to  the
Defense Debt Management System (DDMS) for collection  action.   DDMS  billed
the applicant for the $1,973.52 uncollected forfeiture on 9 September  1998.
 On 6 February 1999, the Air Force Reserve directed that any  forfeiture  of
pay pending or uncollected from  the  applicant’s  reserve  pay  account  be
remitted without further action.  On 24 February  1999,  the  applicant  was
sent a letter from DDMS stating that  the  debt  originator  had  determined
that his debt be cancelled.  Since the forfeiture debt was remitted  and  no
money was collected from the applicant, they recommend no further action  be
taken on the case.

A complete copy of  their  evaluation,  with  attachments,  is  attached  at
Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 24 March 2000, a copy of the Air Force evaluation was  forwarded  to  the
applicant for review and response within 30  days.   As  of  this  date,  no
response has been received by this office.

_________________________________________________________________

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 warranting the  punishment  imposed
upon him under Article 15, Uniform Code of Military Justice (UCMJ), dated  7
November 1997 be set aside.  We took  notice  of  the  applicant's  complete
submission in judging the merits of the case; however,  we  agree  with  the
opinion and recommendation of the Air Force and  adopt  their  rationale  as
the basis for our conclusion that the applicant has not been the  victim  of
an error or injustice.  With regard to  applicant’s  contentions  pertaining
to the Article 15 forfeiture, DFAS has advised that on 6 February 1999,  the
Air  Force  Reserve  directed  that  any  forfeiture  of  pay   pending   or
uncollected from the applicant’s reserve pay  account  be  remitted  without
further action.  On 24 February 1999, the applicant was sent a  letter  from
the Defense Debt Management System (DDMS) stating that the  debt  originator
had determined that his debt be cancelled.  Since the  forfeiture  debt  was
remitted and no money was collected from the applicant,  no  further  action
is to be taken on the case.  In view of the  foregoing,  the  Board  has  no
reason to believe that the Article 15 forfeiture still exists;  hence,  this
is a moot issue.  Therefore, in the absence of evidence to the contrary,  we
find no compelling basis to recommend granting the  relief  sought  in  this
application.

4.    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.  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 30 November 1999 & 30 May 2000, under the provisions of  AFI  36-
2603:

            Mr. Thomas S. Markiewicz, Panel Chair
            Mr. Edward Koenig, Member
            Mr. Gregory Den Herder, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated undated, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 7 May 99.
   Exhibit D.  Letter, SAF/MIBR, dated 21 Jun 99.
   Exhibit E.  Letter, Counsel, dated 15 Sep 99, w/atchs.
   Exhibit F.  Letter, DFAS-DE/FYCC, dated 8 Mar 00, w/atchs.
   Exhibit G.  Letter, SAF/MIBR, dated 24 Mar 00.




                 THOMAS S. MARKIEWICZ
                 Panel Chair