RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00044
            INDEX CODE:  111.01, 126.03,
                                              131.01

            COUNSEL:  FRED L. BAUER

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His Officer Performance Report (OPR)  rendered  for  the  period
5 Dec 95 through 4 Dec 96  be  declared  void  and  removed  from  his
records.

2.    The Letter of Reprimand (LOR), dated 25 Jan 97, be removed  from
his records.

3.    His Fiscal Year 1997 (FY97) promotion to the grade of  major  be
reinstated with back pay and allowances; or, in the alternative, he be
given Special Selection Board (SSB) consideration by the  FY97  (4 Mar
96) and FY99 (2 Mar 98) Major Selection Board.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel states, in part, that  the  applicant  had  been  directed  to
notify a civilian employee in the Public Affairs (PA) office  that  he
supervised, that she was being removed from her civil service position
because of  inappropriate  behavior  on  her  part.   She  immediately
responded with a sexual harassment complaint (later  dismissed  by  an
investigating officer) against the applicant.  A friend  of  hers  who
was a defeated professional rival  of  the  applicant’s  (among  other
things, the applicant was given a job that she had wanted and felt she
deserved), joined the complaint, as did  a  third  female.   A  fourth
witness said that the applicant kissed her on the neck  but  that  she
did not feel sexually  harassed  by  him.   At  least  a  dozen  other
witnesses supported the applicant.  The PA  staff  had  mostly  worked
together a long time and were very friendly, even, on rare  occasions,
“touchy-feeley” and prone to hugging and indulging in  sexual  banter.
However, the chief initiators of the “sexual banter” were two  of  the
complainants.  Of more importance, polygraph  (lie  detector)  results
show that applicant did not sexually harass anyone.  Nevertheless, the
applicant received a substandard OPR that undoubtedly  contributed  to
his pass over to major.

Counsel further states that the applicant took  over  an  ineffective,
demoralized office and transformed it into an award-winning one.  More
than three quarters of the people who worked in that office or  worked
closely with it, when asked about the  applicant,  sang  his  praises.
Clearly, it was a “huggy, touchy-feeley” office  long  before  he  got
there.  The remaining  witnesses  all  had  axes  to  grind  and  they
collaborated on their stories.  While the  polygraph  results  do  not
prove the applicant innocent beyond a reasonable doubt,  they  clearly
show by a preponderance of the  evidence –  especially  when  combined
with the statements in his support – that he did not deserve  to  have
this done to him.  The applicant deserves to be a major and his record
should be cleared so that it gives an accurate and fair picture of his
career.

Counsel asks the Board to review  the  applicant’s  current  OPR.   It
references increased responsibility as well as saying that he is  “the
logical choice to be the next ??? Air Force  PA  Officer.   While  the
command structure may be reluctant to admit they made a mistake,  they
may try to “make it up” to the  individual  afterwards  by  officially
(i.e., through a subsequent OPR) admitting the officer is outstanding.
 Clearly, that is what they are doing here.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 22 Dec 82, the applicant was commissioned a  second  lieutenant  in
the Regular Air Force (RegAF).

Applicant’s Officer Effectiveness Report (OER)/OPR profile  from  1983
to 1991 follows:

            PERIOD ENDING          OVERALL EVALUATION

             22 Jun 83                   1-X-1
             22 Dec 83                   1-X-1
             22 Jun 84                   1-X-1
             22 Dec 84                   1-X-1
             15 Feb 91               Meets Standards

On 17 Mar 91, applicant  was  discharged  from  the  RegAF  under  the
provisions of AFR 36-12 (Voluntary Resignation:  Completion of  Active
Duty Service Commitment) with an honorable characterization of service
in the grade of captain and transferred to the Reserves.  At the  time
of his discharge, he was credited with 8 years, 2 months and  26  days
of active service.

On 18 Mar 91, applicant was appointed as a Reserve of the Air Force in
the grade of captain.

His OPR profile from 1992 to 1997 follows:

            PERIOD ENDING          OVERALL EVALUATION

             15 Feb 92               Meets Standards
             15 Feb 93               Meets Standards
             15 Feb 94               Meets Standards
             14 Jan 95               Meets Standards
              4 Dec 95               Meets Standards
            * 4 Dec 96    Does Not Meet Standards (Referral Rpt)
              2 Dec 97               Meets Standards

     *  Contested Report.

On 4 Mar 96, the applicant was considered and selected  for  promotion
to the grade of major by the Fiscal Year 1997 (FY97)  Reserve  of  the
Air Force Major Selection  Board.   His  promotion  service  date  was
established as 22 Dec 96.

On various unit training assembly (UTA) Reserve weekends,  allegations
of numerous sexual harassment incidents  caused  a  commander-directed
investigation to be conducted.  The investigation  contained  evidence
of a hostile and offensive working  environment.   As  a  result,  the
commander  gave  the  applicant  an  LOR,  initiated  an   unfavorable
information file (UIF) and recommended that his name be  removed  from
the promotion list in accordance with AFI 36-2504.   The  package  was
forwarded to the ??? Air Force  and  Headquarters  Air  Force  Reserve
Center  (AFRC)  for  review  and  the  commander  and  vice  commander
concurred with the recommendation that the applicant be  removed  from
the promotion list.  The removal action was completed in Dec 97.

On 30 Nov 96, the Deputy Commander for ??? completed the investigation
pertaining to the sexual harassment charges  mentioned  above  against
the applicant  by  one  female  individual  and  also  accusations  of
propositioning members of his staff, specifically, the same individual
and two other female individuals.  Additional accusations of  hugging,
kissing, and  inappropriate  comments  by  staff  members  during  UTA
weekends were investigated.  The findings against the  applicant  were
that the ??? Air Mobility Wing (AMW) Public Affairs  Office  commander
did not put pressure on the applicant to remove the female  individual
and that the applicant should have stressed the professionalism of his
office staff and not allowed the  closeness  and  familiarity  of  his
staff to get out of control.

Applicant was considered and nonselected for promotion to the grade of
major by the FY99 Reserve of the  Air  Force  Major  Selection  Board.
Since the commander’s recommendation to remove him from the  promotion
list automatically delayed his promotion, he was not eligible to  meet
the FY98 promotion board.

On  13 Aug  98,  the  applicant  voluntarily  underwent  a   polygraph
examination at the Office  of  Internal  Control  in  San  Bernardino,
California.  During the interview, the main issue under  consideration
was to determine if the applicant sexually harassed anyone  under  his
supervision or command.  The relevant questions asked of the applicant
and responses are as follows:

      Question #33:  Are you lying about never committing  an  act  of
sexual harassment to any employee under your supervision?

      Answer:  No

      Question #35:  Have you lied or withheld information during  any
investigation in regard to sexual harassment under your supervision?

      Answer:  No

      Question  #37:   Have  you  lied  to  me  about  never  sexually
harassing any female that was under your command:

      Answer:  No

After careful analysis, it was the considered opinion of the polygraph
examiner that the applicant was a pass.

On 28 Aug 98, the applicant was notified that he was  not  recommended
for promotion to the grade of major by the Reserve of  the  Air  Force
Selection Board.   As  a  result  of  the  board’s  decision,  he  was
reassigned to the Nonaffiliated Reserve Section as required by AFI 36-
2115.  Due to his second deferral for promotion and in accordance with
Section 14505, Title 10, United States Code  (USC),  he  was  informed
that he must be discharged and that his adjusted mandatory  separation
date was 1 Mar 99.  He was also informed that since he did not qualify
for transfer to the Retired Reserve, orders announcing  his  discharge
and an honorable discharge certificate would be sent to him  when  the
action was taken.

On 1 Mar 99, per Reserve Order ???, dated 23 Feb 99, the applicant was
honorably discharged from all appointments in the  Air  Force  in  the
grade of captain.

On 2 Aug  99,  the  Evaluation  Reports  Appeal  Board  (ERAB)  denied
applicant’s appeal to  remove  the  OPR  closing  4 Dec  96  from  his
records.  The Board was not  convinced  the  referral  OPR  should  be
removed.

_________________________________________________________________



AIR FORCE EVALUATION:

The  Chief,  Military  Personnel  Division,  AFRC/DPM,  reviewed  this
application  and  indicated  that  in  accordance  with  AFI   36-2907
(Unfavorable Information File (UIF) Program) and Headquarters  AFPC/DD
Message,   May   98   (Subject:    Implementation   Instructions   for
Accountability Enhancements), the LOR must be  addressed  by  member’s
wing commander as he is the approval authority for  removing  the  LOR
from  member’s  UIF.   In  reference  to  the  reinstatement  of   his
promotion, the applicant was removed by the President  from  the  FY97
promotion list due to documented misconduct which resulted in  a  loss
of confidence in his fitness for promotion.  The  applicant  permitted
an environment in his office in which sexual comments  and  innuendoes
were  allowed  to   become   commonplace.    Since   the   commander’s
recommendation to remove him from  the  promotion  list  automatically
delayed his promotion, he was not eligible to meet the FY98  promotion
board.  However, since the removal action was completed in Dec 97,  he
did meet the FY99 promotion board and was  nonselected  for  a  second
time.  Therefore, he is projected for separation on 1 Mar 99 which  is
the first day of the seventh  month  after  the  month  the  President
approved the board report in accordance with  AFI  36-2504,  paragraph
5.11.2.  Based on above facts, DPM cannot recommend his  promotion  be
reinstated.  If, however, he were to have the contested  OPR  and  LOR
removed from his records, they  do  feel  he  should  be  allowed  the
opportunity to have his record meet an SSB.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel provided a two-page response  stating,  in  part,  that  as  a
general rule,  the  DPM  advisory  is  correct  when  they  say  other
administrative avenues must be exhausted prior to going to the  Board.
However, the applicant is not required to go through these other time-
consuming administrative  measures  when  in  doing  so  delays  cause
irreparable harm to his career.  In such a case, he may  “go  straight
to the top” and even go to court if that is what is required.  If  the
applicant had followed the route prescribed by DPM, it would have been
absolutely impossible because the suggested appeals results would then
have had to be incorporated in an AFBCMR application and  the  process
would have taken at least twice as long.  Even now, with the applicant
in civilian status,  his  military  career  (if  reinstated)  will  be
detrimentally affected if  he  is  required  to  go  through  all  the
administrative appeals suggested by DPM.  The reason for this is self-
evident; you can’t build up your  military  career  while  you  are  a
civilian and the longer you  remain  off  of  active  duty,  the  more
difficult it becomes.  Counsel agrees  with  DPM  that  if  relief  is
granted in regard to the OPR and LOR, then applicant is entitled to an
SSB.  If relief is granted on either the OPR or LOR, then applicant is
entitled to an SSB since either change affects the record  that  would
have been considered by the promotion board(s).

There are two  other  issues  counsel  would  like  to  bring  to  the
attention of the Board.  The investigation in this case  that  led  to
applicant’s  difficulties  never  involved  Social  Actions   or   the
Inspector General (IG).  Social Actions is the  agency  that  normally
handles allegations of this nature because they have the expertise and
know what the parameters are.  They should have been involved in order
for the investigation to  have  been  done  properly.   The  applicant
requested that they be involved in each of his  responses.   Secondly,
the applicant’s military and civilian appraisals,  since  1995  (which
includes the period covering the allegations  against  him)  have  all
been “firewalled outstandings.”  He is still, as a civilian, Chief  of
Public Affairs and  the  general  has  blocked  filling  his  military
position for the  obvious  purpose  of  making  it  possible  for  the
applicant to return to his military job.  This is the same general who
took the disciplinary action in the first place.

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

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Military Personnel Division, AFRC/DPM, again reviewed  this
application and indicated that they  agree  with  the  ERAB  that  the
referral report should not be removed from applicant’s record.  He has
not provided substantial evidence to challenge the report.   The  case
file describes his failure to provide  proper  leadership  within  his
office which caused him to be reprimanded by his wing  commander  with
an LOR and a referral OPR.  Since the referral OPR and  LOR  have  not
been removed from his records, DPM cannot recommend that  he  meet  an
SSB.

A complete copy of the  Air  Force  evaluation,  with  attachment,  is
attached at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the Air Force  evaluation  and  provided  a  two-page
response.

Counsel’s  complete  response,  with  attachment,   is   attached   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.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice.  After a thorough review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded  that  he  should  be  given  the  requested  relief.    His
contentions are duly noted; however, we find no compelling basis  upon
which to conclude  that  he  has  been  the  victim  of  an  error  or
injustice.   We  note  that  after  allegations  of  numerous   sexual
harassment   incidents,   a   commander-directed   investigation   was
conducted, which contained evidence of a hostile and offensive working
environment.  The commander determined that  the  applicant  committed
the  alleged  offenses  and  issued  an  LOR  and   recommended   that
applicant’s name be removed from the promotion  list.   We  also  note
that comments regarding applicant’s failure to provide  leadership  by
allowing sexual comments and innuendoes to become commonplace  in  his
office were noted on the contested report.  While  we  note  that  the
allegations that  applicant  sexually  harassed  co-workers  were  not
substantiated,  we  agree  that   applicant   should   have   stressed
professionalism to his office staff and not allowed the closeness  and
familiarity of his staff to get out of control.   Additionally,  while
we note that polygraph results showed that applicant did not  sexually
harass anyone, we believe that his actions condoning  the  conduct  of
his staff were serious.  Therefore, in view of the foregoing, 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 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 10 February 2000, under  the  provisions  of  Air
Force Instruction 36-2603:

                  Mr. Joseph G. Diamond, Panel Chair
                  Mr. Gregory H. Petkoff, Member
                  Mr. Jay Jordan, Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 17 Dec 98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFRC/DPM, dated 19 Feb 99.
     Exhibit D.  Letter, AFBCMR, dated 8 Mar 99.
     Exhibit E.  Letter fr counsel, dated 6 May 99, w/atchs.
     Exhibit F.  Letter, AFRC/DPM, dated 13 Aug 99, w/atch.
     Exhibit G.  Letter, AFBCMR, dated 10 Sep 99.
     Exhibit H.  Letter fr counsel, dated 24 Sep 99, w/atch.




                                   JOSEPH G. DIAMOND
                                   Panel Chair