RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  01-01446
      INDEX CODE 106.00  110.02  134.00
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her general discharge [upgraded by the Discharge  Review  Board  (DRB)
from under-other-than-honorable-conditions  (UOTHC)]  be  upgraded  to
honorable, all derogatory materials be deleted from her  records,  and
she be reimbursed for all benefits denied her including lost leave and
unreimbursed travel and transportation expenses  associated  with  her
termination.

_________________________________________________________________

APPLICANT CONTENDS THAT:

For an unprofessional relationship with a technical sergeant (TSgt T),
she was forced to choose between court-martial  and  possible  federal
conviction or UOTHC discharge.   The  choices  presented  were  unduly
harsh  and  disproportionate  to  the  seriousness  of  any   provable
misconduct.  They were  not  based  on  legally  sufficient  evidence.
Instead, all the most serious accusations rested on the unreliable and
incredible immunized  testimony  of  TSgt  T,  who  lied,  failed  two
polygraphs, was not corroborated by a single other witness, and had  a
history  of  disciplinary  and  other  credibility  problems.    Other
fraternization cases much worse than hers received much more favorable
treatment. She is profoundly sorry for the unprofessional relationship
but the price she paid was too high and the punishment too final.

She provides a 3-page statement  with  60  attachments  including,  in
part,  a  12-page  brief  from  an  attorney  who  is  not  officially
representing her, a  psychological  profile,  polygraph  results,  the
Article 32 Report of Inquiry (ROI), and numerous character statements.

Her complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The  following  information  was  extracted  from  official  documents
provided by the applicant and contained in her military  records,  the
AF Office of Special Investigation (AFOSI) ROI, the  Article  32  ROI,
the Secretary of the Air Force Personnel  Council  (SAFPC)  file,  and
attachments (Exhibits A and B).

The applicant entered active duty on 31 Jan 95. On 24 Apr 95, she  was
assigned as the Deputy Chief, Adverse Actions Division, of  the  375th
Airlift Wing (375AW) Staff Judge Advocate Office at Scott AFB, IL.

In the fall of 95, she was tasked  to  prepare  a  statement  for  all
officers and senior noncommissioned officers (NCOs) on  unprofessional
relationships. This request was  generated  by  several  instances  of
unprofessional conduct at Scott AFB.  She drafted an  extensive  paper
on the definition of unprofessional relationships and  fraternization,
discussed the prohibition of unprofessional relationships contained in
AFI  36-2909,  gave  examples  of  fraternization  and  unprofessional
relationships, and discussed the possible adverse consequences of such
actions.  The revised version  of  the  statement  was  given  to  all
officers and senior NCOs  for  review  and  signature.  The  applicant
signed her copy of this statement on 22 Dec 95.

TSgt T’s wife expressed suspicion to a co-worker that her husband  was
having an affair with the applicant. On 19 Jun  96,  she  brought  her
suspicions and home telephone records to  the  attention  of  military
authorities. TSgt T agreed to provide testimony only  after  the  15th
Air Force commander (15AF/CC) granted him immunity on 25 Jun  96.   On
26 Jun  96,  the  applicant  was  issued  an  order  to  refrain  from
contacting TSgt T.

An AFOSI investigation was conducted from 26 Jun to 28  Jul  96.   The
applicant refused to answer questions and sought legal counsel.   TSgt
T provided two statements and alleged the applicant performed oral sex
on him four times between May-Jun 96, but  he  never  had  intercourse
with her.

On 17 Oct 96, the applicant tendered her resignation in lieu of court-
martial (RILO) for the good of the service. On 28 Oct  96,  the  375AW
judge  advocate  recommended  that  the  375AW  commander   (375AW/CC)
disapprove the RILO. The applicant re-tendered her  resignation  on  1
Nov 96 because she did not strictly follow the requirements of AFI 36-
3207.

In a 5 Nov 96 letter to the 15AF/CC, the  15AF  staff  judge  advocate
recommended that the applicant’s resignation not be accepted.

On 12 Nov 96, the applicant was  charged  with  one  specification  of
violating AFI 36-2909, dated  1  May  96,  by  wrongfully  dating  and
engaging in sexual relations with TSgt T between, on or  about  13 May
and 22 Jun 96; committing sodomy with TSgt T between, on  or  about  1
Apr and 30 May 96; and conduct unbecoming an officer by fraternization
with TSgt T, on or about 8 Mar and 22 Jun 96.

On 19 Nov 96, a hearing was  held  by  the  Article  32  investigating
officer (IO). The IO found that, with one  recommended  change,  there
was sufficient evidence to support all three changes.  He  recommended
that  the  applicant’s  RILO  be  accepted  with  a  UOTHC  discharge,
indicating that TSgt T was more deserving of punishment in  this  case
than the applicant.  The IO indicated that TSgt T  was  older  and  in
service longer, was the clear instigator and moving force  behind  the
relationship, was cheating on his wife and children, and had a history
of alcohol and spousal abuse. He also raised concerns  regarding  TSgt
T’s memory and credibility.

In a 4 Dec  96  memo  to  the  Air  Mobility  Command  vice  commander
(AMC/CV), the AMC staff judge advocate disagreed with the  Article  32
IO’s opinion regarding TSgt T’s credibility and that he was  the  more
culpable  party  in  the  relationship.  The  staff   judge   advocate
recommended the applicant’s RILO be disapproved and the  case  proceed
to trial, or she be given a UOTHC discharge.

The charges were referred to trial on 16 Dec 96.

On 30 Dec 96, AFLSA/JAJM advised the Office of the  Secretary  of  the
Air Force that they agreed with the recommendations of  the  375AW/CC,
the 15AF/CC, and the  AMC/CV  that  the  applicant’s  RILO  should  be
declined but, if accepted, accept with a UOTHC discharge.

The Secretary of the Air Force accepted the applicant’s RILO  and  she
was discharged on 14 Mar 97 in the  grade  of  captain  with  a  UOTHC
characterization.  She had 2 years, 1 month  and  14  days  of  active
service.

The applicant made a personal appearance before the DRB on 31 Aug  00.
On 15 Sep 00, the DRB concluded  that,  while  her  offenses  deserved
administrative discharge, the characterization of  her  discharge  was
inconsistent with punishments administered to officers  who  committed
similar offenses and directed that her UOTHC discharge be upgraded  to
general. The applicant was so notified on 17 Oct 00.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Separations Branch, HQ AFPC/DPPRS, reviewed the appeal with
regard to the applicant’s discharge and  provided  his  rationale  for
recommending denial.

A complete copy of the evaluation is at Exhibit C.

The Staff Judge Advocate, HQ AFPC/JA, asserts that to  submit  results
from a polygraph exam taken four years after her resignation, covering
subject matters of her own choosing, to now  claim  she  was  unfairly
treated is of little probative value.  The applicant has given up  her
right to attack the legal sufficiency of the evidence  supporting  the
charges levied against her.  When she submitted her RILO request,  she
explicitly recognized that the resignation would be  in  lieu  of  the
procedure  that  otherwise  serves  as  the  appropriate  method   for
resolving disputed issues of fact,  the  court-martial  process.   She
cannot use that tender of resignation on one hand to halt  the  court-
martial process established by law as the proper means  to  adjudicate
the allegations against her and then, in the guise of an allegation of
“error or injustice,” attempt to litigate those same charges,  knowing
that the prosecution is now muzzled and won’t respond. The  DRB  found
her claim of similarly  situated  individuals  received  less,  or  no
punishment meritorious and upgraded her UOTHC  discharge  to  general.
She introduces no new evidence on this issue other than that presented
to the DRB. Her receipt of a general discharge for  her  conduct  does
not shock the sense of justice. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant adopts a brief submitted in her behalf by an  Air  Force
Reserve attorney major acting in a private civilian capacity  and  not
as her, or the Air Force’s, official representative. He notes that the
AFPC/JA memo  fails  to  address  one  of  the  applicant’s  principle
contentions, i.e., the total lack of any of  the  aggravating  factors
that have traditionally driven prosecution at the court-martial level.
 Contextual understanding of the actual charges  demonstrates  it  was
neither  fair  nor  appropriate  for  the  government  to  choose  the
extraordinary remedy  of  court-martial  from  the  broad  arsenal  of
disciplinary  and  rehabilitative  tools  available  to  address   the
relative  unaggravated  allegations  at  issue.  The   applicant,   in
confusion  compounded  by  inexperience,   allowed   herself   to   be
manipulated into an unprofessional friendship with a  predatory  older
man who was both instigator and later, in the bitterest irony and most
profound injustice, the protected and immunized accuser.  As confirmed
by the applicant’s polygraph taken at his request,  the  behavior  did
not extend to sexual contact of any kind. The AFPC/JA  assertion  that
the applicant should have litigated  the  issues  presented  at  trial
misses the point. The applicant could not argue the limited extent  of
her wrongdoing to a court-martial, which would only have  been  tasked
with determining if any wrongdoing occurred.  The OSI asked TSgt T the
wrong questions. They were seeking to determine whether  he  had  more
sexual contact with  the  applicant  than  he  described;  they  never
bothered to ask him in the polygraph exam whether he  had  any  sexual
contact with her at all.  They didn’t confirm that  he  engaged  in  a
sexual relationship with the applicant; they only assumed it based  on
nothing more than his non-deceptive denial of  other  nonexistent  and
therefore undisclosed sexual contact.  He urges the Board  to  rectify
this injustice and grant the applicant the requested relief.

The 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, we  are  not
persuaded that the requested relief should be granted. The applicant’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 Air Force.   In  particular,  the  applicant
gave up her right to attack the  legal  sufficiency  of  the  evidence
supporting the charges levied against her.   When  she  submitted  her
RILO request, she knew that the resignation would be in  lieu  of  the
court-martial process, which would  have  served  as  the  appropriate
method for resolving disputed issues of fact.   Whatever  her  reasons
for waiving the opportunity to  challenge  the  court-martial  charges
against her, she cannot use that tender of resignation on one hand  to
halt that process for adjudicating the  allegations  against  her  and
then four years later attempt to litigate those same charges.  She has
furnished no persuasive evidence demonstrating  that  her  resignation
was anything other than a knowing and voluntary act.  We note the  DRB
addressed the applicant’s allegation of a  disproportionate  discharge
by upgrading the characterization  of  her  discharge  from  UOTHC  to
general.   The  applicant  has  submitted   no   convincing   evidence
warranting further remedy beyond that already afforded her by the DRB.
The applicant has failed to sustain  her  burden  of  having  suffered
either an error or an injustice and, absent persuasive evidence to the
contrary, we find no compelling basis upon which to recommend relief.

4.    We note that the  applicant  also  requested  reimbursement  for
benefits that may have  been  denied  her,  such  as  lost  leave  and
travel/transportation expenses.   While  we  have  concluded  that  no
corrective action is warranted by this agency, we did inquire  whether
the applicant had the right to file a claim based on the DRB upgrading
her UOTHC discharge to general in Sep 00.   The  Defense  Finance  and
Accounting Service (DFAS) informally advised us that, while they could
not guarantee any reimbursement, the applicant should submit a  claim,
with all pertinent supporting documentation, to DFAS-POCC/DE, 6760  E.
Irvington Place, Denver CO  80279-7100.

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  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 18 October 2001 under the provisions of  AFI  36-
2603:

                 Mr. Patrick R. Wheeler, Panel Chair
                 Ms. Dorothy P. Loeb, Member
                 Mr. Roger E. Willmeth, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 18 May 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 30 Jul 01.
   Exhibit D.  Letter, HQ AFPC/JA, dated 14 Aug 01.
   Exhibit E.  Letter, SAF/MRBR, dated 17 Aug 01.




                                   PATRICK R. WHEELER
                                   Panel Chair