RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-01312
            INDEX CODE:  111.01, 131

                 COUNSEL:  FRED L. BAUER

                 HEARING DESIRED:  Yes

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered for the period 20 Apr 96
through 19 Apr 97 be declared void and removed from  his  records  and
his corrected record be considered  for  promotion  to  the  grade  of
lieutenant colonel.

APPLICANT CONTENDS THAT:

He was falsely accused of fraternization and the contested OPR is  not
a fair representation  of  his  duty  performance  during  the  rating
period.

In support of applicant’s appeal, counsel provided a seven-page brief,
a letter of support from the additional rater of the contested report,
a letter requesting early removal of the Unfavorable Information  File
(UIF) from applicant’s group  commander,  a  Report  of  Investigation
(ROI), various letters of  support  from  outside  the  rating  chain,
applicant’s responses to the referral OPR and rebuttal to  his  Letter
of Reprimand (LOR), several policy letters/articles on fraternization,
applicant’s CY95A Promotion Recommendation Form (PRF), and a letter of
appreciation from the Joint Task Force-Southwest Asia  Commander.

Counsel’s complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
16 Jan 84.  He is currently serving on extended  active  duty  in  the
grade of major, effective, and with a date of rank (DOR) of 1 Mar 96.

Applicant’s Officer Effectiveness Report (OER)/OPR profile since  1986
follows:

            PERIOD ENDING          OVERALL EVALUATION

             16 Jun 86                   1-1-1
             23 Jan 87                   1-1-1
             23 Jan 88                   1-1-1
              2 Dec 88                Meets Standards
             20 Oct 89         Education/Training Report (TR)
              2 Dec 89                Meets Standards
             14 Jun 90                Meets Standards
             22 May 91                Meets Standards
              8 Dec 91                Meets Standards
             15 Jul 92                Meets Standards
             15 Jul 93                Meets Standards
             15 Jul 94                Meets Standards
             28 Apr 95                Meets Standards
             19 Apr 96                Meets Standards
           * 19 Apr 97     Does Not Meet Standards (Referral Rpt)
             31 Jan 98                Meets Standards
              2 Oct 98                Meets Standards
              2 Oct 99                Meets Standards

*  Contested report.

Applicant was considered and not  selected  for  promotion  below-the-
promotion  zone  (BPZ)  for  both  the  Calendar  Year  1998B  (CY98B)
Lieutenant Colonel Central Selection Board that convened on  1 Jun  98
and the CY99A Lieutenant Colonel Central Selection Board that convened
on 19 Apr 99.

On 27 Aug 96, under the inherent authority of the  Wing  Commander  of
the 355th Wing, Air Combat Command  (ACC),  an  Investigation  Officer
(IO) conducted an investigation into all  aspects  of  the  facts  and
circumstances concerning alleged fraternization between the  applicant
and a female senior airman during  a  deployment  to  Bahrain  between
approximately Jun – Aug 96.  The  Wing  Commander,  355th  Wing,  ACC,
appointed an IO to conduct  an  ROI  into  two  355th  Wing  officer’s
allegations.  The officers originally filed their complaint  with  the
Inspector General (IG), 355th Wing,  who  forwarded  it  to  the  Wing
Commander on 27 Aug 96.  The investigation was conducted  from  28 Aug
through 7 Nov 96 at Davis-Monthan AFB, Arizona.

The IO concluded, in part, that the investigation  revealed  that  the
preponderance  of  evidence  pointed  to  fraternization  between  the
applicant and the senior airman.  While there were a number of  rumors
about  several  “couples,”  witnesses  specifically   identified   the
applicant and the senior  airman  in  situations  beyond  normal  work
relationships or socialization during the deployment  (entering  hotel
rooms together, the clinic room together, or her going into  his  room
in the dorm all point to a closer relationship than what a  reasonable
person  would  consider  acceptable).   Additionally,  testimony  from
credible witnesses indicates that both the applicant  and  the  senior
airman were lying under oath when they denied that any of the reported
events took place.

The IO’s recommendations were as follows:
            To reinforce the Air Force  position  that  fraternization
between officers and enlisted members is unacceptable,  the  applicant
should receive appropriate punishment for carrying on a fraternization
relationship with the senior airman.  Many officers in  the  wing  are
watching this issue with great interest.  We need to  show  them  that
this is a serious breach in expected officer conduct.

            To reinforce the issue of integrity in the Air Force, both
the  applicant  and  the  senior  airman  should  receive  appropriate
punishment for lying under oath, and whatever  other  charges  evolved
from this.

            Additionally, AFI 36-2909 should be  changed  to  add,  as
part of the training paragraph (paragraph 9), clarifications on how to
report suspected or perceived unprofessional relationships.  There  is
currently no specification  in  the  AFI  that  recommends  using  the
appropriate chain of command to report such instances.  Yet, paragraph
7 holds commanders and supervisors responsible for dealing with  these
issues.  To effectively deal with such a problem  at  the  appropriate
level, commanders at the lowest level must  have  the  opportunity  to
address the problem in accordance with AFI 36-2909.

Documentation provided by counsel indicates that applicant received an
LOR/UIF because after four weeks into  the  temporary  duty  (TDY)  in
Bahrain, applicant’s commander (who was also the additional  rater  on
the contested OPR) was informed that some anonymous people had told  a
first sergeant that the applicant was seeing  too  much  of  a  female
airman who was deployed with the commander  and  the  applicant.   The
commander indicated in an undated memorandum  to  the  Board  that  to
compare the behavior of the applicant  to  more  notorious  Air  Force
cases is inappropriate because of the minimal  impact  that  applicant
had on the unit.  The commander  stated  that  applicant’s  career  is
probably finished unless the Board reconsiders his OPR.  He  indicated
the LOR/UIF will pass  after  the  regulatory  time  constraints  have
elapsed but the performance report will remain.  The commander  stated
that he believes the applicant did create an impression or  perception
that he had an unprofessional relationship with a  female  airman  but
does not believe that this perception should halt applicant’s  career.
His authoring the referral OPR was overzealous  and  he  believes  the
punishment does not fit the crime.

On 1 Jun 98, the 355th Operations Group Commander recommended  serious
consideration be given to removing the LOR and UIF on  the  applicant.
Counsel indicated that  this  recommendation  was  approved;  however,
there is no further  mention  of  the  LOR/UIF  issue  in  applicant’s
records.




AIR FORCE EVALUATION:

The Chief, Promotion, Evaluation &  Recognition  Division,  AFPC/DPPP,
reviewed this application and indicated that Air Force policy is  that
an evaluation report is accurate as written when it becomes  a  matter
of record and to effectively challenge an EPR, it is necessary to hear
from all the members of the rating chain—not only for support but  for
clarification/explanation.   The  applicant  has  failed  to   provide
information/support from all  of  the  rating  chain  members  on  the
contested  OPR.   In  the  absence  of  information  from  evaluators,
official substantiation of error or injustice from the IG or  Military
Equal Opportunity is appropriate, but not provided in this  case.   In
this case, applicant’s UIF/LOR and subsequent referral OPR were  based
on  an   investigation   which   substantiated   the   allegation   of
fraternization with a female airman.  Given this and the fact that  we
have not heard from applicant’s rater  and  reviewer  (especially  the
reviewer since he concurred with the contested  referral  report),  it
appears  the  report  was  accomplished  in  direct  accordance   with
applicable instructions, mentioning both outstanding duty  performance
as well as the specific charge of substantiated fraternization.

DPPP notes  the  additional  rater,  in  an  undated  letter  entitled
“Request for Early Removal of  Unfavorable  Information  File  (UIF),”
supports the removal of the contested report.  He still  believes  the
applicant “did create an impression  or  perception  that  he  had  an
unprofessional relationship  with  a  female  airman.”   He  does  not
“believe, however, that this perception should halt his career.”

In considering what adverse information should be included in an  OPR,
AFI 36-2402, paragraph l.2.1,  states  in  part,  “…evaluators  should
consider the impact of the misconduct on the Air Force mission and the
Air Force as an institution; the relationship of the misconduct to the
officer’s duties; the grade, rank assignment  and  experience  of  the
officer; the number  of  separate  violations  and  frequency  of  the
misconduct, and the consequences of the  misconduct…Raters  must  also
consider making comments on evaluation reports  when  adverse  actions
such as Article 15 or LORs,  Admonishment,  or  Counseling  have  been
taken.”  DPPP states that this gives evaluators the option to consider
making adverse comments but refrain  if  they  believe  they  are  not
warranted.  DPPP is uncertain as  to  what  specific  information  the
additional rater has now that he did not have before he  rendered  the
referral report.  As rationale for changing the OPR, he  implies  that
he had to refer the OPR to be in compliance with the Chief of Staff of
the Air Force’s guidance concerning accountability in OPRs.   He  also
points out that recently top  Air  Force  leadership  has  “clouded  a
difficult issue” and implies others received less harsh punishment for
more mission-impacting offenses as compared to  the  punitive  actions
taken with regard to the applicant’s conduct which  had  minimal  unit
impact.  However, he does not provide  specific  policy/guidance  that
shows he was hindered from rendering a fair and accurate assessment of
the applicant’s performance prior to the report being made a matter of
record.  The appeals process does not exist  to  recreate  history  or
enhance chances for promotion.  As such, DPPP  is  not  convinced  the
contested report is not accurate as written and does not  support  the
request for removal.

Furthermore, DPPP notes that the applicant provided a rebuttal to  the
referral report in his appeal package; however, it appears he did  not
provide it to the reviewer within the required period of  time  to  be
considered before the report  became  a  matter  of  record.   If  the
applicant felt so strongly that the basis for  the  referral  OPR  was
unjust, DPPP questions why he did not take the opportunity to  express
his side of the story, given the opportunity.

While  the  applicant  provided  many  memoranda   of   support   from
individuals outside the rating  chain  of  the  contested  OPR,  those
individuals are entitled to their opinions  of  the  applicant’s  duty
performance and the events occurring  around  the  time  the  OPR  was
rendered.  However, DPPP does not believe these individuals were in  a
better position to evaluate applicant’s duty  performance  than  those
who were specifically assigned that responsibility.  Therefore,  their
opinions are not germane to applicant’s appeal.  Based on the evidence
provided, DPPP recommends the applicant’s  request  to  have  the  OPR
closing 19 Apr 97 voided be denied.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the Air Force evaluation and  provided  a  three-page
response disagreeing with the advisory opinion.

Counsel’s complete response is attached at Exhibit E.

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.  Applicant alleges  that
he was falsely accused of fraternization and the report in question is
not a fair representation of his duty performance  during  the  rating
period.  We note that an investigation that  was  conducted  regarding
alleged fraternization between  the  applicant  and  a  female  senior
airman during a deployment to Bahrain was substantiated.  However,  we
note the statement from the additional rater of the  contested  report
who states that his authoring the referral OPR was overzealous and  he
believes the punishment does not fit the crime.  He also  states  that
while the applicant created an impression or perception that he had an
unprofessional relationship with a female airman, he does not  believe
that this perception should halt  the  applicant’s  career.   Further,
numerous individuals testified to circumstantial  evidence  concerning
the alleged fraternization  but  no  hard  facts  emerged.   While  we
normally would not substitute our judgment  for  that  of  the  rating
chain, we feel the punishment the applicant received in  the  form  of
the referral OPR which was based on the LOR, appears to be severe,  in
view of applicant’s overall excellent record of  performance  and  the
circumstances of this case.  The evidence presented  substantiates  to
our satisfaction  that  the  applicant  has  been  the  victim  of  an
injustice.  In view of  the  foregoing,  we  recommend  the  contested
report be declared void and removed from his  records.   In  addition,
his corrected record should be considered for promotion to  the  grade
of lieutenant colonel by SSB for CYs 98B and  99A  Central  Lieutenant
Colonel Boards.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show  that  the  OPR,  AF  Form
707A, rendered for the period 20 Apr 96 through 19 Apr 97, be declared
void and removed from his records.

It is further recommended that he be considered for promotion  to  the
grade of lieutenant colonel by SSB for the  CY98B  and  CY99A  Central
Lieutenant Colonel Boards.

The following members of the  Board  considered  this  application  in
Executive Session on 29 March 2000, under the provisions  of  AFI  36-
2603:

                  Mr. David C. Van Gasbeck, Panel Chair
                  Mr. Lawrence R. Leehy, Member
              Mr. Clarence D. Long, III, Member

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

     Exhibit A.  DD Form 149, dated 26 Apr 99, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPP, dated 30 Jul 99.
     Exhibit D.  Letter, AFBCMR, dated 23 Aug 99.
     Exhibit E.  Letter fr counsel, dated 22 Oct 99




                                   DAVID C. VAN GASBECK
                                   Panel Chair
INDEX CODE:  111.01, 131

AFBCMR 99-01312




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 , be corrected to show that the Officer  Performance
Report, AF Form 707A, rendered for the period  20 April  1996  through
19 April 1997, be, and hereby is, declared void and removed  from  his
records.

      It is further directed that he be considered  for  promotion  to
the grade of lieutenant colonel by Special  Selection  Board  for  the
Calendar Year (CY) 98B and CY99A Central Lieutenant Colonel Boards.







                                                            JOE     G.
LINEBERGER
                                                         Director
                                                           Air   Force
Review Boards Agency