RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

            INDEX CODE 126.02 126.04 131.09
IN THE MATTER OF:      DOCKET NUMBERS: 00-03161

            COUNSEL: Joseph W. Kastl

            HEARING DESIRED: Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 dated 1 Dec 99 be declared void and he be  promoted  to
the grade of chief master sergeant (CMSgt) effective and with  a  date
of rank (DOR) of 1 Feb 00.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He  is  innocent  of  the  vague  charges  against  him.   No   sexual
relationship ever developed between him and his subordinate’s wife. He
did not disobey a no-contact  order.  Given  his  superb  career,  the
punishment is truly excessive.

He, his subordinate, and their families were next-door  neighbors  and
became close friends. The subordinate had an affair while in  Thailand
and has falsely accused his wife of affairs in the past. The situation
escalated when the subordinate thought that  he,  the  applicant,  had
told the  wife  about  the  subordinate’s  affair.  His  superior  and
indorser (Major J), who purportedly verbally ordered him  to  have  no
contact with the subordinate’s wife, supports this  appeal.   The  new
squadron commander (LTC H), who imposed the nonjudicial punishment, is
a hothead bent on ruining his career.   The  flimsy  and  inconclusive
“evidence” against him comes from an  eccentric,  neurotic  woman  who
fabricated the situation because of her jealous husband.

Counsel’s 10-page brief, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular  Air  Force  in  the
grade of senior master sergeant (SMSgt) (Date  of  Rank:  1  Nov  94).
During the period in question, he was a sortie generation flight chief
assigned to the 36th Airlift Squadron (36 AS) at  Yokota  AFB,  Japan.
His performance reports since Apr 90 reflect overall ratings of “5.”

According to the 36 AS  Acting  First  Sergeant’s  Memoranda  for  the
Record (MFR) at Exhibit A, the subordinate called him from Thailand on
20 Jul 99 and accused the applicant of having an affair with his wife.
The Acting First Sergeant advised Major J. The applicant  admitted  to
the  Acting  First  Sergeant  and  Major  J  that  he  cared  for  the
subordinate’s  wife,  that  they  had  talked  about  divorcing  their
spouses, but there had not been any ”physical contact.” Major  J  then
verbally ordered the applicant not to  have  any  physical  or  verbal
contact with  the  wife  and  no  non-duty-related  contact  with  the
subordinate for an indefinite period. The subordinate  was  also  told
not to have non-duty-related contact with the applicant. On 22 Jul 99,
the subordinate’s wife told the Acting First Sergeant and Major J that
she and the applicant were just friends and her  husband  was  blowing
the situation out of context due to their own  marital  problems.  She
was made aware of the no-contact order on the applicant. On 23 Jul 99,
the subordinate returned from TDY and was reordered to have no contact
with the applicant. He was also told his wife was upset with  him.  On
26 Jul 99, the subordinate told the Acting  First  Sergeant  that  the
applicant had tried to contact his wife via computer.

On 9 Aug 99, LTC H issued a Letter of Reprimand (LOR) to the applicant
for maintaining an inappropriate relationship with  the  subordinate’s
wife. The LOR also indicated that, although the allegations  were  not
conclusive, those that were true and the resulting disruption  in  the
applicant’s work chain were enough to  take  measures  to  ensure  the
behavior ceased.

The following information was extracted, in part, from the Yokota  Air
Force  Special  Forces  Office  of  Investigation  (SFOI)  Report   of
Investigation (ROI), dated 10  Sep  99,  which  was  provided  by  the
applicant at Exhibit A:

      -- On 8 Sep 99, the SFOI was  advised  that  the  applicant  had
allegedly violated the 36 AS commander’s no-contact  order.  The  SFOI
were  provided  with  the  subordinate’s  answering  machine  cassette
containing phone messages allegedly from the applicant’s wife  to  the
subordinate’s wife and an  argument  between  the  applicant  and  the
subordinate’s wife; LTC H’s 7 Sep 99 MFR regarding the  tape  and  his
meeting that day with the subordinate and his wife, who indicated  she
lied when she initially denied having a sexual relationship  with  the
applicant; and a computer history log containing conversation  between
the applicant  and  the  subordinate’s  wife.   An  investigation  was
initiated and statements were obtained from the  subordinate  and  his
wife. The subordinate indicated that the applicant had told  his  wife
about his affair in Thailand, that on 3 Sep 99 he  saw  the  applicant
talking to his wife with his arm around her, and that on 4 Sep 99  his
wife admitted to having had an affair with the applicant from  Mar-Jul
99. The wife corroborated her  husband’s  statement,  admitted  to  an
affair, and indicated the applicant had made contact with her numerous
times after the no-contact order. After being advised of  his  rights,
the applicant did not provide a statement and requested legal counsel.


On 5 Nov 99, the applicant was selected for promotion to CMSgt,  which
would have been effective 1 Feb 00.  However, he  apparently  was  not
recommended for promotion and therefore was not  permitted  to  assume
the grade.

On 19 Nov 99, LTC H notified the applicant of  his  intent  to  impose
nonjudicial punishment for willfully disobeying, between 20 Jul and  3
Sep 99, Major J’s order for him to have no physical or verbal  contact
with the subordinate’s wife.  On  30  Nov  99  after  consulting  with
counsel, applicant waived his right to a trial by court-martial.  Both
the applicant and his area defense  council  (ADC)  submitted  written
presentations. The ADC contended the order  was  not  specific  as  to
duration and was too broad and restrictive, and that  the  subordinate
and his wife were not credible.

On 1 Dec 99, LTC H found the applicant guilty and  imposed  punishment
of forfeiture of $1,000 pay per month for two months,  reprimand,  and
45 days of extra duty.

The applicant appealed the punishment on 8 Dec 99. Major J provided  a
statement  requesting  that  the  Article  15  action  be   dismissed,
indicating he did not believe the applicant disobeyed  his  order  and
that, since the order was the basis for the Article 15, he should have
been consulted prior to any action being taken.  On 13 Dec 99,  LTC  H
provided a background and refutation memo to the appellate  authority.
A legal review on 13 Dec 99 recommended the appeal be denied, which it
was on 20 Dec  99.  The  Article  15  was  filed  in  his  Unfavorable
Information File (UIF) and in his Senior NCO Selection Record.

The applicant has a projected retirement date of 1  Dec  01  based  on
High Year Tenure (HYT).

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Military Justice Division, AFLSA/JAJM, reviewed the  appeal
and indicates the verbal order was lawful, clear and unambiguous.   As
a senior NCO with over 25 years’  experience,  it  is  implausible  to
think the applicant misunderstood this order, and the  evidence  shows
he violated this order on several occasions.  The officer  who  issued
the verbal order does not know whether or not the  applicant  violated
the order.  The  evidence  supports  the  Article  15  allegation  and
punishment was appropriate for the offense committed.   The  requested
relief should be denied.

A complete copy of the evaluation is at Exhibit C.

The Chief, Inquiries/AFBCMR Section, HQ AFPC/DPPPWB, also reviewed the
case and discusses the promotion issue. An  individual  is  ineligible
for promotion during a particular cycle when removed from  the  select
list, as was the case  with  the  applicant.  The  applicant  did  not
provide a copy of the documentation relating to his non-recommendation
for promotion to CMSgt.  However,  the  Personnel  Data  System  (PDS)
reflects he was nonrecommended, and the projected promotion  to  CMSgt
was removed effective Feb 00.  He would have assumed the  grade  on  1
Feb 00 if he had been recommended and was otherwise eligible.  The non-
recommendation for promotion  was  a  continuation  of  other  adverse
actions (LOR and Article 15) taken against the applicant as  a  result
of his inappropriate relationship with his  subordinate’s  wife.   The
promotion authority was acting  within  his  authority  when  he  non-
recommended  the  applicant  for  promotion  to  CMSgt.    Denial   is
recommended.

A complete copy of the evaluation, with attachment, is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies  of  the  advisory  opinions  were  forwarded  to  the
applicant’s designated counsel on 13 Apr 01. The applicant provided  a
rebuttal, asserting that  the  advisory  opinion  made  three  serious
errors. First, there never was a written “no contact order.”   Second,
he did not admit guilt and an  Article  15  is  not  an  admission  of
wrongdoing.   Third,  all  other  accusations  were  investigated  and
dropped. That is, in effect, an acquittal.  The  neurotic  subordinate
threatened his foreign-born wife until she ultimately went along  with
his slanders.  The new squadron commander was fiercely  ambitious  and
biased against him, but Major J came on line to say he believed the no-
contact order had not been broken. He asks for fair play.

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.    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,  a  majority
of the Board concludes that the Article 15 and the  non-recommendation
for promotion to  CMSgt  should  stand.  In  this  regard,  the  Board
majority  does  not  find  the  applicant’s  petition   insufficiently
persuasive to overcome the available evidence. In the majority’s view,
the applicant has not demonstrated that he was the victim of biased or
abusive command authority, that his substantial rights  were  violated
during the processing of the Article 15 punishment, that  the  Article
15 was insupportable, or that the punishment  imposed  was  excessive.
The Board majority therefore adopts the rationale  and  recommendation
of the AFLSA/JAJM opinion as the  basis  for  our  decision  that  the
applicant has failed to sustain his burden of having  suffered  either
an error or an injustice. In view of the above and  absent  persuasive
evidence to the contrary, the majority finds 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.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  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 13 June 2001, under the  provisions  of  AFI  36-
2603:

                  Mr. Vaughn E. Schlunz, Panel Chair
                  Mr. Michael V. Barbino, Member
                  Mr. Philip Sheuerman, Member

By a majority vote, the Board recommended denial of  the  application.
Mr. Barbino voted to grant, but he does not wish to submit a  Minority
Report. The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 21 Nov 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 5 Mar 01.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 23 Mar 01, w/atch.
   Exhibit E.  Letter, SAF/MIBR, dated 13 Apr 01.
   Exhibit F.  Letter, Applicant, dated 8 May 01.



                                   VAUGHN E. SCHLUNZ
                                   Panel Chair


AFBCMR  00-03161




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

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                  JOE G. LINEBERGER
                                  Director
                                  Air Force Review Boards Agency