RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-02913
            INDEX NUMBER:  126.02; 111.02

      XXXXXXXXXXXXXX   COUNSEL:  Joseph W. Kastl

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 he received on 26 May 99 be set aside.

He be restored to the grade of Chief Master Sergeant (CMSgt).

All adverse personnel actions related to the Article 15 be removed from
his records.

The Enlisted Performance Report (EPR) rendered on him for the period 21
Jul 98 through 24 Jun 99 be removed from his records.

_______________________________________________________________

APPLICANT CONTENDS THAT:

Through a ten-page submission  with  25  attachments,  the  applicant’s
counsel contends that there were ten fatal defects that prove that  the
applicant did not get due process and a decent, fair shake:

        a.  Procedurally the Inquiry Officer (IO) that investigated his
case was blatantly unfair.

        b.  The applicant was issued a “no contact” order  so  that  he
was unable to gather evidence on his own behalf.

         c.  The  IO  draws  the  mind-boggling  conclusion  that   the
applicant is guilty of quid pro quo sexual harassment… though there  is
absolutely no indication of sexual bargaining or innuendo.

        d.  The IG was ignored.

        e.  The Area Defense Counsel (ADC) was ineffective.

        f.  Substantively, the IO presented a totally unfair picture.

        g.  The interviewed witnesses tell inconsistent stories.

        h.  The IO failed to  maintain  an  objective  perspective  and
weigh the applicant’s success at this installation.

        i.  The biased report reaches unfair conclusions.

        j.  The system did not work.

Counsel’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

      The applicant is serving on active duty in the  grade  of  senior
 master sergeant (E-8).  His Total Active Federal Military Service  Date
 is 11 Jul 78.   Based  on  statements  made  by  three  female  members
 complaining about the applicant’s conduct toward them, on 8 Mar 99, the
 Wing commander appointed an  Inquiry  Officer  to  look  into  possible
 sexual harassment by the  applicant.   Based  on  the  results  of  the
 inquiry, the IO  recommended  that  the  applicant  be  punished  under
 Article  15  for  multiple  violations  of  Article  93,  cruelty   and
 maltreatment, Article 92, violation  of  a  lawful  general  regulation
 (specifically AFI 36-2618), and Article 128, assault consummated  by  a
 battery against Amn W.  On     19 Apr 99,  the  applicant  was  offered
 proceeding under Article 15 for the following offenses in violation  of
 the UCMJ:


      a.  Article 92.  He did at or near Ft Huachuca, AZ, between on or
  about 10 July 1998 and on or about 8 March  1999,  violate  a  lawful
  general regulation, to wit: paragraph 4.1.7,  AFI  36-2618,  dated  1
  August 1996, by wrongfully attempting reprisal against Staff Sergeant
  (SSgt) K by stating that if SSgt K ruined his  subordinate’s  career,
  he would ruin SSgt K’s career.


      b.  Article 92.  He did at or near Ft Huachuca, AZ, between on or
  about 10 July 1998 and on or about 8 March  1999,  violate  a  lawful
  general regulation, to wit: paragraph 4.1.11, AFI  36-2618,  dated  1
  August 1996, by creating an environment of  intimidation  among  unit
  personnel, by showing favoritism to airmen based on gender, by making
  sexually suggestive comments to  airmen,  by  leading  an  airman  to
  believe she would owe him sexual  favors  if  she  were  retained  on
  active duty, by ordering an airman to touch his biceps and by leering
  at female airmen subject to his orders.


      c.  Article 128.  He did, between on or about 1 December 1998 and
  on or about 9 March 1999 at  Ft  Huachuca,  AZ,  unlawfully  pick  up
  Airman W with his hands and lift her above his  head  and  then  spin
  around.


      d.  Article 128.  He did, on or about  31  October  1998,  at  Ft
  Huachuca, AZ, unlawfully touch Airman S by  placing  a  can  of  beer
  inside her shirt with his hand.


  The applicant accepted proceeding under Article 15 on 30 Apr 99.   On
  26 May 99, the AETC Vice Commander determined that the applicant  did
  commit one or more of the offenses  alleged  and  imposed  punishment
  consisting of reduction to the grade of SMSgt, with  a  new  date  of
  rank of 26 May 99.


  A profile of the applicant’s last ten EPRs follows:


    Closeout Date                 Overall Rating


      03 Apr 93                   5
      03 Apr 94                   5
      03 Apr 95                   5
      01 Oct 95                   5
      01 Oct 96                   5
      20 Jul 97                   5
      20 Jul 98                   5
     *24 Jun 99                   2
      17 Feb 00                   5
      26 Jul 00                   5


  * Contested Report

_______________________________________________________________

AIR FORCE EVALUATION:

The Chief of the Military Justice Division, Air  Force  Legal  Services
Agency, AFLSA/JAJM, evaluated this application and recommends that  the
applicant’s requests be denied.

JAJM attached a complete copy of the IO report and challenged  each  of
the applicant’s contentions through the information  contained  in  the
report.

The complete evaluation is attached at Exhibit C.

______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluation in a  twenty-three-
page submission.  He provides reasons why he thought the  inquiry  done
in his case was unfair.  He also provides a rebuttal  to  each  of  the
four specifications that he was punished for by Article 15  to  include
diagrams detailing the key events and observations of each charge as he
sees them.  Finally, he attaches statements from individuals in support
of his view of the events.

The applicant’s complete submission 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.  Insufficient relevant evidence has been presented to demonstrate the
existence of probable  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in  judging  the  merits  of  the  case;
however,  the  majority  of  the  Board  agrees  with  the  opinion  and
recommendation of the Air Force office  of  primary  responsibility  and
adopt their rationale as the primary basis for our conclusion  that  the
applicant has not been the victim of an error or injustice.   While  the
entire Board had some  concern  over  whether  or  not  the  applicant’s
reduction in grade from CMSgt to SMSgt was overly  harsh,  the  majority
was persuaded that deference should be given  to  those  that  made  the
decision.  The statement of the  applicant’s  wing  commander  that  she
believes  the  applicant  committed  the  offenses  charged   especially
influenced the majority.  Although the action taken was  harsh,  it  did
not rise to the level of an injustice.  The Board  majority  also  notes
that because of the applicant’s grade, CMSgt, the action  taken  against
him involved the highest level of his chain of command.  Since applicant
has not provided sufficient evidence to substantiate his contentions, 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 issues involved.  Therefore, the request
for a hearing is not favorably considered.

_______________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority  of  the  Board  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_______________________________________________________________

The following members  of  the  Board  considered  this  application  in
Executive Session on 7 June 2001, under the provisions of AFI 36-2603:

      Thomas S. Markiewicz, Panel Chair
      Mr. Lawrence R. Leehy, Member
      Ms. Diane Arnold, Member

By a majority vote, the Board voted to deny  applicant’s  request.   Ms.
Arnold voted to grant the applicant’s requests and provided  a  minority
report at Exhibit E.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Oct 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 8 Mar 01, w/atch.
    Exhibit D.  Letter, SAF/MIBR, dated 30 Mar 01.
    Exhibit E.  Minority Report.
    Exhibit F.  Memorandum, Applicant, undated.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXXX, XXX-XX-XXXX


           In  Executive  Session  on  7  Jun  01,  we  considered  the
applicant’s requests.  A majority  of  the  Board  voted  to  deny  the
applicant’s requests.  I disagree with their recommendation.

          While the applicant’s actions may have  supported  punishment
by Article 15, I am not persuaded that the severity of the  punishment,
reduction in grade from CMSgt to SMSgt, is warranted.  In particular, I
am concerned about several statements made by the IO in her 10  Feb  00
response to the applicant’s allegation of bias against her.  She states
that she  was  told  to  complete  her  investigation  as  “swiftly  as
possible.”  She uses this as the primary basis for not requesting  that
witnesses review the account of events she attributes to them.  Whether
intended  or  not,  this  gives  the  appearance  that   fairness   and
thoroughness were sacrificed in the interest of speed.  She also states
that the applicant “behaved very condescendingly” toward her  when  she
interviewed him.  Although, she states that she refrained from stopping
the applicant’s behavior to facilitate her interview, it does cause  me
to question whether she harbored ill feelings toward the applicant that
may have colored the tenor of her report.  I  also  disagree  with  her
assertion that she did not recommend that the applicant lose a  stripe.
Her statement, “The severity and profusion of  these  offenses  counsel
attention from a level at  which  the  offering  authority  can  reduce
Subject in grade should the commander find such action warranted by the
evidence” clearly  plants  the  seed  that  a  reduction  in  grade  is
appropriate.  Since commanders at each level have the benefit of  legal
counsel and advice, I feel that it was inappropriate for her to take on
the role of legal advisor.  Her report should have been limited to  the
facts gathered and  her  analysis  to  the  impact  or  effect  of  the
applicant’s  actions.   Finally,  the  contrasting  account  of  events
presented in the witness statements provided by the applicant cause  me
to have serious doubts as to whether the actions that the applicant was
punished for occurred as alleged and, again,  whether  they  justify  a
reduction in grade and loss of a career.  I can sum up my view of  this
case simply by saying “the applicant did not get his day in court.”




                             DIANE ARNOLD
                             Panel Member

AFBCMR 00-02913




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

            a.  He was promoted to the grade of Chief Master
Sergeant (CMSgt), effective and with a date of rank of 30 June
2001, and any active duty service commitment incurred as a result
of the promotion to CMSgt Be, and hereby is waived.

            b.  On 1 July 2001 he retired for length of service in
the grade of CMSgt.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXX, XXX-XX-XXXX

      I have carefully reviewed the evidence of record and the
recommendation of the Board members and agree with the opinion of the
minority member that a degree of relief is warranted.  I do not agree with
the minority member, however, that all of the adverse consequences
resulting from the applicant’s misconduct should be totally eradicated.  In
this respect, I note that the applicant voluntarily accepted the Article
15; and that the punishment imposed (albeit harsh) was within the
discretion of the imposing commander.

      Notwithstanding the above, I note the issues raised in the
minority opinion and am persuaded that a degree of relief is
warranted.  While I am not convinced that the applicant is completely
innocent of the offenses for which he was punished, I agree with the
minority member of the Board panel that the contrasting account of
events provided in the witnesses’ statements calls into question what
may have really happened.  I also note that the Inquiry Officer
indicated that although she found some evidence of intent, she did not
find an actual occurrence of quid pro quo harassment.  In
consideration of all of the circumstances in this case, including the
fact that the permanent reduction in grade more than likely brought a
premature end to the applicant’s career and will financially affect
him for the remainder of his life, I believe that the reduction was
too harsh and, therefore, unjust.  Accordingly, it is my decision that
the applicant be promoted to CMSgt on his last day of active duty and
be allowed to retire in the higher grade.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency