RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02577

            COUNSEL:  JOSEPH W. KASTL

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on 11 June 1997 be set aside and his  rank  of  chief
master sergeant (E-9) be restored.

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APPLICANT CONTENDS THAT:

The conduct which was the basis for the Article 15 was completely innocent.

The applicant’s counsel states that the nonjudicial  punishment  was  unfair
because the applicant was denied a  fair  hearing;  his  guilt  was  already
decided; a reduction in grade was excessive; and the Article 15 went to  the
wrong commander.  In addition, the appeal of the nonjudicial punishment  did
not follow the normal chain of command.  ACC/CV  was  to  act  only  in  the
absence of ACC/CC.

Counsel’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant was promoted to the  grade  of  chief  master  sergeant  (E-9)
effective and with date of rank (DOR) of 1 August 1994.

On 29 February 1996, the applicant reenlisted in the Regular Air  Force  for
a period of three years in the grade of chief master sergeant (E-9).

On 10 May 1997, the  applicant  was  offered  nonjudicial  punishment  under
Article  15  of  the  Uniform  Code  of  Military  Justice  (UCMJ)  for  two
specifications of indecent assault while TDY to Saudi  Arabia  in  violation
of Article 134.  Specifically, for committing indecent assaults upon  female
airmen, not his wife, on or about 20 April 1997, by  rubbing  and  massaging
one airman’s back, neck, shoulders, and  sides,  then  reaching  around  her
from behind and putting his hand on her clothed breast; and on or  about  23
April 1997, by rubbing another female airman’s back, moving his  hands  down
her sides to her lower back and up to the  sides  of  her  clothed  breasts,
with the intent to gratify his sexual desires.   After  consulting  military
counsel, on 17 May 1997, he waived his right to  a  trial  by  court-martial
and accepted the nonjudicial punishment proceedings.  On 11 June  1997,  the
9th  Air  Force  Commander  considered  the  applicant’s  oral  and  written
presentation, and determined he did  commit  one  or  more  of  the  alleged
offenses and imposed punishment.  The  applicant  appealed  the  nonjudicial
punishment on 17 June 1997 and his request was  denied  by  the  Air  Combat
Command  Vice-Commander  on  15 July  1997.   The  punishment  consisted  of
reduction to the grade of senior master sergeant (E-8), with a new  date  of
rank of 11 June 1997; forfeiture of $500.00 per month for two months; and  a
reprimand.

Based on his reduced grade of senior master sergeant and  time  in  service,
his High Year of Tenure (HYT) date was established as 31 December 1997.

On 25 August 1997, the applicant applied for voluntary retirement  effective
1 January 1998.

On 22 September 1997, the Secretary  of  the  Air  Force  Personnel  Council
(SAFPC) determined the applicant did not serve satisfactorily in any  higher
grade and would not be advanced under the provisions of Section 8964,  Title
10,  United  States  Code  (10  USC  8964).  10  USC  8964  authorizes   the
advancement of enlisted members on the retired list to the highest grade  in
which they served on active duty satisfactorily, when their  active  service
and service on the retired list totals 30 years.

The applicant voluntarily retired on 1 January 1998, in the  grade  of  E-8,
under the provisions of AFI 36-3203 (Maximum Service or Time in Grade).   He
completed 28 years, 10 months, and 12 days of active service.

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AIR FORCE EVALUATIONS:

The Chief, Military Justice Division, AFLSA/JAJM, reviewed  the  application
and states that the Article 15 was based on  the  applicant’s  conduct  with
two different female airmen.  The applicant admits he massaged one  airman’s
back and both airmen complained about his actions.  He also admits  that  he
massaged one airman’s back for at least a half hour.  Both airmen  claim  he
attempted to touch their breasts as well and he admits that he  “mistakenly”
touched the breasts of Airman F***.   While  applicant’s  counsel  maintains
the applicant was unaware of Airman F***’s molestation at the age of 17  and
that she made herself appear to be sound and healthy, this is irrelevant  to
his conduct and does not mitigate or negate what occurred.  Such conduct  by
a chief master sergeant, who routinely  supervised  them,  could  have  been
intimidating to the airmen.  Contrary to counsel’s contention, Gen D***  did
not decide the guilt or innocence of the applicant.   Gen  D***  recommended
the 9th AF/CC take action on the matter.  The 9th AF/CC found the  applicant
guilty and imposed punishment.

AFLSA/JAJM states that it is Air  Force  policy  to  try  and  keep  actions
within the Air Force chain rather  than  have  them  processed  by  a  joint
command such as CENTCOM.  Actions that occur within  the  USCENTAF  area  of
responsibility are normally up-channeled through 9th AF and ACC.   There  is
no requirement that the ACC/CC be unavailable for the ACC/CV to act in  this
capacity. All actions taken comply with the Military  Court-Martials  Manual
and the governing Air Force Instruction.  The conduct of  the  applicant  in
using his status as a senior enlisted person to  physically  take  advantage
of two  young  airmen  was  reprehensible.  Therefore,  they  recommend  the
application be denied.

A complete copy of the evaluation is at Exhibit C.

The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed  the  application
and defers to the recommendation of AFLSA/JAJM. However, if the  Board  sets
aside the reduction in grade, the effective date of  his  promotion  to  the
grade of chief master sergeant was 1 August 1994.

A complete copy of the evaluation is at Exhibit D.

The Retirement  Programs  and  Policy  Section,  AFPC/DPPRRP,  reviewed  the
application and states that the  applicant  was  correctly  retired  in  the
grade of senior master sergeant, which was the grade he held on the date  of
his retirement.  The law that allows for advancement of enlisted members  on
the retired list is very specific in its application and intent.  The  SAFPC
made the determination that he did not serve satisfactorily on  active  duty
in any grade higher  than  senior  master  sergeant.   There  are  no  other
provisions of law that would allow  for  advancement  of  enlisted  members.
All criteria of the pertinent laws have been  met  in  this  regard  and  no
error or injustices occurred  in  his  retirement,  grade  determination  or
advancement action.  Therefore, they recommend the application be denied.

A complete copy of the evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel reviewed  the  evaluations  and  states  that  in  a
similar case, the Court of Appeals for the Armed Forces found that  an  Army
enlisted member could not be convicted  for  conduct  related  to  backrubs.
The facts of that case were more  prosecution  friendly  than  that  of  the
applicant because the Army enlisted member  also  indecently  assaulted  his
companions.  Counsel contends this should be a convincing precedent  in  the
applicant’s case.

Counsel states that the whole incident has been blown out of proportion.  An
innocent gesture of  friendliness  was  transformed  into  harassment.   The
applicant was a stranger to the chain of command and they over-reacted  with
excessive punishment, including an unsuspended reduction.  In addition,  the
applicant considered civilian counsel earlier because  he  was  not  pleased
with his military counsel; however, he was  told  that  phone  communication
was extremely limited at Prince Sultan AB, Saudi Arabia, and  he  would  not
be able to contact a civilian attorney.

In further support of the appeal, counsel submits the  applicant’s  personal
statement.

Counsel’s complete responses are at Exhibits G and H.

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ADDITIONAL AIR FORCE EVALUATION:

The Chief, Military Justice Division, AFLSA/JAJM, reviewed  the  application
and states that in the case cited by the  applicant,  the  Court  determined
that under the particular facts of that case, the  line  between  consensual
physical contact and nonconsensual had become too blurred to  be  reasonably
recognized and criminally enforced.  However, in the applicant’s  case,  the
history of other consensual physical contact is absent and the line  between
consensual and nonconsensual is not blurred.  The intimacy of  the  touching
(i.e., breasts) sets this case both legally and  factually  apart  from  the
case cited by applicant’s counsel.  It is not simply the degree  of  contact
that differs, it is the kind of conduct  that  sets  the  two  cases  apart.
Given all the circumstances, particularly the  fact  that  the  conduct  was
alleged to have happened twice, to two separate complainants, any finder  of
fact would clearly have been justified  in  discounting  both  accident  and
honest mistake as to consent  as  plausible  explanations  for  the  conduct
charged.  Furthermore, the applicant  could  have  exercised  his  right  to
trial by court-martial and fully litigated the issues he has raised in  that
forum where the burden of proof is beyond a reasonable  doubt.    Therefore,
they recommend the application be denied.

A complete copy of the evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A  complete  copy  of  the  additional  evaluation  was  forwarded  to   the
applicant’s counsel on 6 July 2001, for review and comment within  30  days.
However, as of this date, no response has been received by this office.

The applicant reviewed the  additional  evaluation  and  provided  responses
with are at Exhibit L and O.

_________________________________________________________________

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 the applicant’s  submission,  we  are  not  persuaded
that relief should  be  granted.   Counsel’s  contentions  are  duly  noted;
however,  we  do  not  find  these  assertions,  in   and   by   themselves,
sufficiently persuasive to override the rationale provided  by  the  offices
of the Air Force.  The offices of  primary  responsibility  have  adequately
addressed counsel’s  contentions  and  we  agree  with  their  opinions  and
recommendations.  We, therefore,  adopt  the  rationale   expressed  as  the
basis for our decision that the applicant has failed to sustain  his  burden
that he has suffered either an error or an injustice.   Hence,  we  find  no
compelling basis to recommend granting the relief sought.

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 9 and 29 August 2001, under the provisions of AFI 36-2603:

                  Mrs. Barbara A. Westgate, Chair
                  Mr. Steven A. Shaw, Member
                  Mr. Roger E. Willmeth, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Sep 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 4 Dec 00.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 20 Dec 00.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 31 Jan 01, w/atchs.
    Exhibit F.  Letter, SAF/MIBR, dated 21 Feb 01.
    Exhibit G.  Letter, Counsel, dated 29 Dec 00.
    Exhibit H.  Letter, Counsel, dated 16 Mar 01.
    Exhibit I.  Letter, AFBCMR, dated 23 Mar 01.
      Exhibit J.  Letter, AFLSA/JAJM, dated 22 Jun 01.
      Exhibit K.  Letter, SAF/MIBR, dated 6 Jul 01.
      Exhibit L.  Letter, Applicant, dated 2 Aug 01.
      Exhibit M.  Letter, Applicant, dated 2 Aug 01.
      Exhibit N.  Letter, AFBCMR, dated 8 Aug 01.
      Exhibit O.  Letter, Applicant, dated 22 Aug 01, w/atchs.




                                   BARBARA A. WESTGATE
                                   Chair