RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-02096
            INDEX NUMBER:  126.00; 111.01

      XXXXXXXXXXXXX    COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

That the Article 15 she received on 28 Jul 97 be set aside and expunged
from her records.

The Officer Performance Report (OPR) rendered on her for the  period  2
Dec 96 through 2 Aug 97 be voided and removed from her records.

_______________________________________________________________

APPLICANT CONTENDS THAT:

The evidence made available to and known by the commander indicated her
innocence.

The standards of proof for each charge were not met.

That a vague charge was not clarified (Article 107).

That several irregularities in the proceeding, contrary  to  Air  Force
Instructions and the Manual  for  Courts-Martial,  contributed  to  the
Article 15 decision being an injustice.

Requirements to file certain documents with the  Staff  Judge  Advocate
and in an Unfavorable Information File (UIF) were  not  met,  and  this
contributed to the injustice because successive  commanders  could  not
review the action and judge the merits of the case themselves.

The OPR rendered on her for the period  2  Dec  96  through  2  Aug  97
documents the incorrect findings of the Article 15 action and  contains
other adverse comments that warrant its removal from her records.

The applicant’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

According to information contained in the master  personnel  file,  the
applicant entered active duty in the Air Force on    14  Jun  79  as  a
Dental Officer.  On 28 Jul 97, as a lieutenant colonel,  the  applicant
was punished under Article 15 for two specifications:

        A.  That she did, on  or  about  11  Jul  97,  with  intent  to
deceive, make an official statement, which statement was totally false,
and was then known by her to be false.

        B.  That she  did,  on  or  about  11  Jul  97,  willfully  and
unlawfully alter a  public  record,  to  wit:  Dental  Patient  Medical
History, AF Form 696.

Punishment consisted of a reprimand.  The applicant  appealed  and  her
appeal was denied.  The applicant  received  a  referral  OPR  for  the
period 2 Dec 96 through 3 Aug 97.  The applicant was considered but not
selected for promotion to colonel by the Calendar  Year  1996A  (CY96A)
Medical Service Corp (MSC) Colonel Promotion Board that convened on  12
Nov 96.  The applicant was again considered and  not  selected  by  the
CY97A MSC Colonel Promotion Board that  convened  on  5  Nov  97.   The
applicant met this Board with a “Do Not Promote”  recommendation  as  a
result of the Article 15 and referral OPR she had previously  received.
She was also considered and not  selected  by  the  CY98A  MSC  Colonel
Promotion Board.  The applicant retired from the Air Force on 1 Feb  00
in the grade of lieutenant colonel.  A resume of the  applicant’s  last
ten OPRs follows:

CLOSEOUT DATE                OVERALL RATING


      15 Dec 91              Meets Standards

      05 Jul 92              Meets Standards
      05 Jul 93              Meets Standards
      01 Dec 93              Meets Standards
      01 Dec 94              Meets Standards
      01 Dec 95              Meets Standards
      01 Dec 96              Meets Standards
 *03 Aug 97            Does Not Meet Standards
      03 Aug 98              Meets Standards
      03 Aug 99              Meets Standards

*  Contested Report

_______________________________________________________________

AIR FORCE EVALUATION:

The Chief, Military Justice Division, Air Force Legal Services  Agency,
AFLSA/JAJM,  evaluated  this  application  and  recommends   that   the
applicant be granted partial relief with respect to the Article  15  in
that the false official statement specification be set aside.   In  the
commander’s  summary  of  the   applicant’s   oral   presentation   and
recommendation to the appellate authority, he states  that  Dr.________
concluded that the applicant “at best, only  looked  at  the  patient’s
medical history when she prescribed the medication.  She could not have
thoroughly  reviewed  it,   as   required,   prior   to   writing   the
prescription.”  This appears to be the point the applicant  is  making.
While she may have been negligent or derelict in the performance of her
duty in terms of the extent to which she reviewed the record,  she  was
not charged with those offenses.  They conclude the  evidence  strongly
supports the applicant’s assertion that she  reviewed  the  record,  at
least to some extent: her  statement,  therefore,  was  not  false  and
cannot form the basis for the first specification of the Article 15.

In regards to the  specification  of  altering  a  public  record,  the
evidence supporting this specification  is  not  clear-cut  as  to  the
unlawfulness of the applicant’s conduct.  They conclude, however,  that
there was sufficient evidence  from  which  the  commander  could  have
concluded that  the  applicant  committed  the  offense  alleged.   The
specification as written, is not a model of clarity in terms of putting
the applicant on notice of exactly which  AF  Form  696  she  allegedly
altered.  Nevertheless, considering the circumstances as  a  whole  and
the statement of government witnesses that the  applicant  saw  at  the
time, they are satisfied she was fairly apprised of the offense.

The complete evaluation is at Exhibit C.

The Chief, Performance Evaluation Section, AFPC/DPPPEP, evaluated  this
application in reference to the applicant’s request to remove the 3 Aug
97 OPR from her records.  They  recommend  denial  of  the  applicant’s
request unless the AFBCMR decides  to  set  aside  the  false  official
statement specification of the Article 15.  If the Board does so,  they
recommend that the phrase “making  false  statement”  be  removed  from
bullet 9 in section VI.  There are no technical or  factual  errors  in
the preparation  and  processing  of  the  contested  OPR.   The  rater
considered and elected to include adverse action.   The  OPR  was  also
properly referred to the applicant, endorsed by the  additional  rater,
and concurred with by the reviewer.

The complete evaluation is at Exhibit D.

______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provided a letter with two attached packages  to  respond
to the Air Force evaluations.  Her response to the evaluation  done  by
AFLSA/JAJM is eight pages with seven attachments.  In it, she addresses
the  three  points  that  AFLSA/JAJM  makes   in   support   of   their
recommendation that the Article 15 specification for altering a  public
document be sustained.  The applicant concludes that  the  overwhelming
amount of objective evidence provided in her  original  appeal  to  the
Board and in her response to the advisory by  AFLSA/JAJM  supports  her
innocence and that the Article 15 action was unjust.

The applicant provided a five-page response with 10 attachments to  the
evaluation done by  AFPC/DPPPEP.   The  applicant  indicates  that  she
agrees with their assessment that there are no technical errors in  the
report.  However, proceeding from the standpoint that  the  Board  will
favorably consider her request to  set  aside  the  entire  Article  15
action, she states that  she  will  show  that  the  remaining  adverse
comments in the report are also unjust.  The rater and additional rater
did not consider information available to them  that  should  have  led
them to reconsider their assessments.  Comments relating to the Article
15 action, other  adverse  comments,  and  “does  not  meet  standards”
ratings should be removed.

Other than direct references to  the  Article  15  action,  the  report
contains the following adverse comments:

         A.  Block  VI,  Rater  Overall  Assessment,  lines  7  and  8;
“Demonstrated inflexible attitude in adjusting to changes in  reporting
official  and  adhering  to  chain  of  command;  persistent  lack   of
compliance  with  clear  directives  resulted  in  three   letters   of
counseling.”

        B.  Block VII, Additional Rater Overall Assessment, lines 1, 4,
and 5; “Comments from the Ratee were requested but not received  within
the required period” (Implying a referred report); “Disregarded  clear-
cut instructions concerning line of authority in the General  Dentistry
Element;” “Demonstrated integrity and ethical conduct inconsistent with
grade and authority.”

The  applicant  provides  the   background   and   circumstances   that
contributed to the adverse comments documented in her OPR.  She  states
that she began  continuous  treatment  for  what  proved  later  to  be
chronic, degenerative cervical  (neck)  disk  disease  with  right  arm
radiculopathy (nerve degeneration).  This condition  directly  affected
her duties as a dentist because she is right-handed and  worsened  over
the rating period.  She states that the adverse comments in the OPR are
unjust.  She had discussed her medical condition several  times  during
the rating period with her Rater, Additional Rater, and Commander.  She
states that she had expressed concern over her course of treatment  and
that it took an adverse patient event (the prescription error on 24 Jun
97) to raise the issue  “officially.”   Having  been  informed  of  the
effect that her medications were having on her clinical performance and
judgement,  and  the  successful  outcome  of  a  specialized   medical
evaluation that changed those prescriptions, her Rater  and  Additional
Rater were in error by not concluding that the effects  of  these  same
medications could  have  contributed  to,  if  not  caused,  what  they
perceived to be inappropriate conduct.

The applicant’s complete response is 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  the  set
aside of the Article 15 and corrections to the OPR rendered for the
period 2 December 1996 through 3 August 1997.  The Board  does  not
agree with the Air Force  recommendation  to  only  set  aside  the
specification of  the  Article  15  dealing  with  making  a  false
official statement.  While we accept and agree with  the  rationale
provided that this specification is wrong, we  are  not  convinced,
however, of the validity of  the  remaining  specification  dealing
with altering a public record.  Rather, we  believe  the  applicant
makes persuasive arguments to the contrary.  Since  the  Air  Force
does admit that the Article 15 is at  least  partly  in  error,  we
believe the doubt that we have  over  the  remaining  specification
should be resolved in the applicant’s favor and the entire  Article
15 be set aside.  In view of this determination, we also  recommend
that  the  contested  OPR  be  amended  by  voiding  the  statement
documenting the Article 15.

4.  Insufficient relevant evidence has  been  presented  warranting
the complete removal of the contested OPR.  We were  not  persuaded
by the applicant’s submission  that  the  adverse  comments  beyond
those documenting the Article 15 action are unjust  and  should  be
removed. In most instances, when recommending  corrections  to  the
record, we would also recommend the applicant  be  given  promotion
consideration by SSB.  In this case, however, we  note  that  after
the recommended corrections, the applicant’s OPR will  still  be  a
referral and she will still have a “Do Not Promote”  recommendation
on her Promotion Recommendation Form (PRF) for the CY97A  Promotion
Board.  Therefore, we recommend  that  the  applicant’s  record  be
corrected as indicated below.

5.  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  issues  involved.
Therefore, the request for a hearing is not favorably considered.

___________________________________________________________________

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 nonjudicial  punishment  under  Article  15,  UCMJ,
initiated on 14 July 1997, and imposed on  28  July  1997,  be  set
aside and expunged from her records, and all rights, privileges and
property of which she may have been deprived be restored.

        b.  The Officer Performance Report, AF Form 707A,  rendered
for the period 2 December 1996 through 3 August 1997, be amended in
section VI, Rater’s Overall Assessment, by removing in its entirety
line 9, which reads, “Given Article 15 for making  false  statement
and alteration of a public record; poor performance in 1997.”

___________________________________________________________________

The following members of the Board considered this  application  in
Executive Session on 1 May 01, under the provisions of AFI 36-2603:

      Mr. Robert W. Zook, Panel Chair
      Ms. Brenda L. Romine, Member
      Ms. Marcia J. Bachman, Member

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

     Exhibit A.  DD Form 149, dated 28 Jul 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 27 Dec 00.
     Exhibit D.  Memorandum, AFPC/DPPPEP, dated 19 Jan 01
     Exhibit E.  Letter, SAF/MIBR, dated 16 Feb 01.
     Exhibit F.  Letter, Applicant, dated 16 Mar 01, w/atchs.




                                   ROBERT W. ZOOK
                                   Panel Chair



AFBCMR 00-02096




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 XXXXXXXXX, XXX-XX-XXXX, be corrected to show
that:

            a.  The nonjudicial punishment under Article 15,  UCMJ,
initiated on 14 July 1997, and imposed on 28  July  1997,  be,  and
hereby is, set aside and expunged from her records, and all rights,
privileges and property of which she may have been deprived be, and
hereby are, restored.

            b.  The  Officer  Performance  Report,  AF  Form  707A,
rendered for the period 2 December 1996 through 3 August 1997,  be,
and hereby is, amended in section VI, Rater’s  Overall  Assessment,
by removing in its entirety line 9, which reads, “Given Article  15
for making false statement and alteration of a public record;  poor
performance in 1997.”





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency