RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 00-02768

      APPLICANT  COUNSEL:  GEORGE E. DAY

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Officer Performance Report (OPR) rendered for  the  period  30 May
1997 through 30 April 1998, be removed from his records.

2.    The Article 15 imposed on 16 February 1994, be set aside  and  removed
from his records.

3.    He be sent to a Replacement Training Unit  (RTU)  to  be  re-qualified
and reinstated in an active status as an Air National  Guard  (ANG)  fighter
pilot in the unit of his choice.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The referral OPR was in reprisal for his spouse contacting  the  spouses  of
Lt  Col  F---  and  Capt  G---  and  advising  them   of   their   husbands’
extramaritial affairs.

The applicant states that the additional rater directed the rater  to  write
the contested OPR as a referral, rather than write his own assessment.   The
additional raters had no opportunity to observe his performance as  a  pilot
and the reviewer was  unqualified  to  assess  the  appropriateness  of  the
report.  Furthermore,  a  Secretary  of  the  Air  Force  Inspector  General
(SAF/IG) investigation has substantiated that the contested OPR was  an  act
of reprisal.

The 1993 Article 15 was wrongfully used as  evidence  in  several  decisions
concerning both his military and civilian careers.

When he received the 1993 Article 15, the commander told him that  it  would
not be entered into his record, would have no effect on any assignment,  and
would have no effect on his promotion.  He had no idea of the  existence  of
a field record during the nonjudicial punishment proceedings.  Had he  known
of its existence, he would have demanded a trial by court-martial.



In support of the appeal, the applicant submits various documents  from  his
personnel  records  and  redacted  extracts  of   the   SAF/IG   Report   of
Investigation (ROI) that concluded the commander  reprised  against  him  by
wrongfully manipulating his OPR.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the  Missouri  ANG  in  the  grade  of
major.

On 1 April 1983, the applicant was commissioned a second lieutenant  in  the
Regular Air Force and entered active duty.  He  was  progressively  promoted
to the captain.

The commander notified the applicant on 13 January 1994, of  his  intent  to
impose nonjudicial punishment under  Article  15  of  the  Uniform  Code  of
Military  Justice  (UCMJ)  for  violations  of   Articles   134   and   128.
Specifically, that at Shaw  AFB,  SC,  on  or  about  30 December  1993,  he
unlawfully touch D--- H--- on the private parts of her body with  his  hands
and was drunk and disorderly.  After consulting with counsel, he waived  his
right to trial by court-martial.  After considering  his  oral  and  written
presentation, on 16 February 1994, the  commander  determined  that  he  did
commit one or more of the alleged  offenses  and  imposed  punishment.   The
punishment  consisted  of  forfeiture  of  $400.00  for  one  month  and   a
reprimand.  He appealed the punishment;  however,  his  appeal  was  denied.
The commander also determined that a copy of the Article  15  would  not  be
filed in an Unfavorable Information File (UIF), or  his  Hq  USAF  Selection
Record or Officer Command Selection Record.

On 24 and 26 June 1996, the applicant was tried by a  General  Court-Martial
for two specifications of  violating  Article  133  (Conduct  Unbecoming  an
Officer) of the UCMJ.  Specifically, that at  Shaw  AFB,  SC,  on  or  about
19 January and 20 January 1996, he committed an assault upon   M--- A---,  a
person not his wife, by unlawfully grabbing her  breast  and  her  body  and
pulling her towards him; and on or about  1 April  and  30  April  1995,  he
unlawfully grabbed and lifted S--- R--- by her  torso  with  his  hands  and
arms.  He pled not guilty to the charges, was found guilty and sentenced  to
two months restriction to the limits of Shaw AFB, SC, forfeiture of  $500.00
pay per month for four months, a $2,000.00 fine, and if  the  fine  was  not
paid within 30 days after the convening authority takes action, then  he  be
confined until the fine is paid,  but  not  more  than  two  months,  and  a
reprimand.  However, the portion of the sentence providing  for  restriction
was remitted on 24 October 1996.

The applicant was separated on 30 November 1996 and reassigned  to  the  Air
Force Reserve, based on nonselection for permanent  promotion  and  received
$59,769.96 separation pay. He completed 13 years  and  8  months  of  active
service, with 3 months and 14 days of prior inactive service.

The applicant was assigned to the 706th Fighter Squadron, New  Orleans,  LS,
effective 1 December 1996, in the grade of captain.

On 23 May 1997, the applicant was grounded from flying  until  1 June  1997,
because he flew an A-10 aircraft over the New  Orleans  Jazz  Festival.   In
addition, he was placed on  the  flying  schedule  under  Supervised  Status
through 21 June 1997 and during a June Unit Training Assembly (UTA), was  to
brief the squadron on the incident and relate any lessons learned.

On 2 October 1998, the commander notified the applicant of his to  recommend
his involuntary reassignment to the Individual Ready Reserve (IRR) based  on
his  failure  to  meet  standards  and  failure  to  meet  military  conduct
standards.   Specifically,  for  receiving  an  Article  15  for   violating
Articles 128 and 134, several flying incidents, multiple disagreements  with
unit personnel and receipt of a referral OPR.

The applicant  was  assigned  to  the  Nonobligated  Nonparticipating  Ready
Reserve Section.

Applicant’s Performance Profile since 1990, follows:

            PERIOD ENDING                OVERALL EVALUATION

              27 Sep 90                 Meets Standards (MS)
              13 Jun 91                         MS
              18 Jan 93                         MS
              18 Jan 94                         MS
               1 Dec 94                         MS
               1 Dec 95                         MS
              29 May 97                         MS
            * 30 Apr 98 (Referral Rpt)    MS on all factors
                                          except Professional
                                          Qualities

* Contested report

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the applicant’s request to set aside  his  Article  15
be denied.  AFLSA/JAJM states, in part, that he has  not  provided  evidence
of a clear injustice to warrant removing the Article  15.   Those  privy  to
the evidence in the case  determined  there  was  sufficient  proof  of  his
guilt.  Although the Article 15 was  not  filed  in  his  Officer  Selection
Record (OSR), it remains in his permanent record.  Setting aside an  Article
15 is only appropriate when, under all the circumstances of  the  case,  the
punishment has resulted in clear injustice and  is  not  warranted  in  this
case.  While  the  victim  of  the  unwanted  touching  appears  to  request
clemency on behalf of the applicant, she does not retract  the  events  that
occurred.  In her written statement, dated 19 January  1994,  she  does  not
change her story as alleged by the applicant.  To the contrary,  she  states
that, “Although my husband was very upset at the time, we,  basically,  were
looking for a sincere apology from [the applicant].  I  believe  an  apology
with curtailing his drinking activity would be  an  appropriate  punishment.
It was never my intention to end [the applicant’s] career or keep him  stuck
at a desk when he should be flying.  I am sure he is  a  fine  pilot  but  a
lousy drinker.”  This inclination toward  leniency  would  have  been  taken
into consideration by the commander who imposed  the  action  and  was  most
familiar with the facts at hand.

The AFLSA/JAJM evaluation, with attachments, is at Exhibit C.

AFRC/DPM  recommends  approval  of  the  applicant’s  request  to  void  the
contested report.  AFRC/DPM states, in part, that  the  results  of  the  IG
investigation  substantiated  the  applicant’s  allegation  that  the  706th
Fighter Squadron Commander reprised against him by  wrongfully  manipulating
his OPR.  The applicant should submit a  request  for  the  removal  of  the
Article 15 to the commander who directed that it be placed in his records.

The AFRC/DPM evaluations are at Exhibits D and E.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant’s counsel on 8 March 2002 for review and response within 30  days.
  At  the  applicant’s  request,  on  3  April  2002,  his  application  was
temporarily withdrawn.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

ARPC/DPSZ states, in part,  that  the  issue  of  reinstatement/reassignment
must be addressed by an Air Force recruiter.

The ARPC/DPSZ evaluation is at Exhibit I.

_________________________________________________________________




APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant states, in part, that regulations regarding  how  Article  15s
are administered are written assuming no commander would  ever  dig  into  a
members past to justify his personal acts of  retaliation.   Since  this  is
what has occurred, he is seeking  to  remove  this  ability  by  having  his
records expunged.  Removing the Article  15  now  will  have  no  effect  on
relieving any of the punishment as originally intended, it will only  thwart
any attempts for its further misuse by  a  less  than  honorable  commander.
However, if the Board elects to not expunge the Article 15, he requests  the
Board reverse the inappropriate actions  taken  against  him  in  which  the
Article 15 was used.  Specifically, he requests that he be sent  to  an  RTU
to re-qualify and reinstated as a fighter pilot in the unit of his choice.

His commander purposely kept the Article 15 out  of  his  command  selection
and officer selection folders so that the punishment would  not  follow  him
as his career progressed.  Since the date of issue of  the  Article  15,  he
has been promoted and advanced in his flying career.  However,  against  the
intent of the Article 15, and against his commander’s  intent,  the  Article
15 was dug up years later to end  both  his  military  and  civilian  flying
careers.

He was offered the Article 15 a few months before his major promotion  board
convened.   After  questioning  the  complainant  in  the  case,  a   female
bartender, the commander became was that she had been  drinking  the  entire
evening in question and that  she  had  a  history  of  severe  disciplinary
problems.  In addition, she participated in  acts  of  lewd  behavior.   Her
story to the commander changed significantly from  her  original  statement.
Rather than revoke the hastily issued  Article  15  and  start  the  process
over, the commander elected to offer it with a small fine and that  was  the
end of it.  The commander told him that if he elected to fight the issue  by
appealing the Article 15 based on the fact that one of the charges  was  now
known to be false, he would have no choice but to place it  in  his  records
until the issue was  resolved  -  after  the  major  selection  board.   The
commander explained that if he accepted the Article  15,  without  a  fight,
that it would go  no  further  than  his  desk  drawer.   Since  the  second
allegation (i.e.,  drunk  and  disorderly)  was  a  subjective  opinion  and
difficult to disprove, he elected to accept the Article 15.

The applicant’s complete responses, with an attachment, are  at  Exhibits  J
and K.

A complete copy of the additional Air Force evaluation was forwarded to  the
applicant on 19  August  2002  for  review  and  response  within  30  days.
However, as of this date, no response has been received by this office.

_________________________________________________________________

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 error or injustice to warrant voiding the contested report  and
the Article 15 imposed on 16 February 1994.  In this respect, we  note  that
an SAF/IG investigation concluded that the commander  reprised  against  the
applicant by wrongfully manipulating  the  contested  report.   In  view  of
this, we recommend the contested report be declared void  and  removed  from
his records.  In  addition,  the  majority  of  the  Board  is  sufficiently
persuaded that the Article 15 should also be removed  from  the  applicant’s
record.  The majority of the Board notes the following:

      a.    On 25 February 1994, the Ninth Air  Force  Commander  determined
that the Article 15 would not be filed in the applicant’s Hq USAF  Selection
Record or his Officer Command Selection Record.   While  in  cases  of  this
nature, the Board is not inclined to disturb  the  judgments  of  commanding
officers absent a strong showing of  abuse  of  discretionary  authority,  a
majority of the Board, does not  believe  the  commander  intended  for  the
Article 15 to adversely effect  the  applicant’s  career  (i.e.,  assignment
selection, promotion opportunities, etc).

      b.    The female bartender that levied  the  allegations  against  the
applicant later changed her story and requested clemency in the his behalf.

      c.    The applicant indicates  that  had  he  know  of  the  continued
adverse effects of the Article 15 on his future career, he  would  not  have
waived his right to trial by court-martial.

      d.    While the Article 15 was within the discretionary  authority  of
the commander and served its  purpose  at  the  time  it  was  imposed,  its
continued pressence in his records constitutes unduly harsh punishment.   In
view of the above, a  majority  of  the  Board  recommends  the  Article  15
imposed on 16 February 1994 be set aside and removed from his records.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice  to  warrant  sending  the  applicant  to  a
Replacement Training Unit (RTU) to be  re-qualified  and  reinstated  in  an
active status as an Air National Guard (ANG) fighter pilot in  the  unit  of
his choice.   After  a  thorough  review  of  the  evidence  of  record  and
applicant’s submission, we are not persuaded that relief should be  granted.
 In the absence of evidence that he was improperly removed  from  an  active
status ANG fight pilot position, we believe he has  failed  to  sustain  his
burden that he has suffered either an error  or  an  injustice.   Hence,  we
find no compelling  basis  to  recommend  favorable  consideration  of  this
portion of his application.

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.    All documents and references to the Article 15,  Uniformed  Code
of Military Justice, imposed on 16  February  1994,  be  declared  void  and
removed from his records.

      b.    The Field  Grade  Officer  Performance  Report,  AF  Form  707A,
rendered for the period 30 May 1997 through 30 April 1998, be declared  void
and removed from his records.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  00-02768  in
Executive Session on 24 October 2002, under the provisions of AFI 36-2603:

                       Mr. Richard A. Peterson, Panel Chair
                       Ms. Carolyn B. Willis, Member
                       Ms. Cheryl Dare, Member

The Board unanimously voted to  void  the  contested  report  and  deny  the
applicant’s request that he be  sent  to  an  RTU  to  be  re-qualified  and
reinstated in an active status as an ANG fighter pilot in the  unit  of  his
choice.  By majority vote, the Board voted to remove  the  Article  15  from
his records; however, Mr. Peterson   voted  to  deny  this  portion  of  his
applicant and has submitted a minority report which is attached  at  Exhibit
M.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Oct 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 29 Jan 01, w/atchs.
    Exhibit D.  Letter, AFRC/DPM, dated 28 Mar 01.
    Exhibit E.  Letter, AFRC/DPM, dated 21 Feb 02.
    Exhibit F.  Letter, SAF/MRBR, dated 8 Mar 02.
    Exhibit G.  Letter, Applicant, dated 29 Mar 02.
    Exhibit H.  Letter, AFBCMR, dated 3 Apr 02.
    Exhibit I.  Letter, AFPC/DPSZ, dated 17 Apr 02.



    Exhibit J.  Letter, Applicant, dated 30 Apr 02, w/atch.
    Exhibit K.  Letter, Applicant, dated 1 Jul 02.
    Exhibit L.  Letter, Applicant, dated 19 Aug 02.
    Exhibit M.  Minority Report.




                                   RICHARD A. PETERSON
                                   Panel Chair

AFBCMR 00-02768




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 APPLICANT, be corrected to show that:

            a.   All documents and references to the Article 15, Uniformed
Code of Military Justice, imposed on 16 February 1994, be, and hereby are,
declared void and removed from his records.

            b.   The Field Grade Officer Performance Report, AF Form 707A,
rendered for the period 30 May 1997 through 30 April 1998, be, and hereby
is, declared void and removed from his records.









JOE G. LINEBERGER

Director

Air Force Review Boards Agency




MEMORANDUM FOR THE EXECUTIVE DIRECTOR AIR FORCE BOARD FOR
                     CORRECTION OF MILITARY RECORDS

SUBJECT:  APPLICANT, DOCKET NO: 00-02768

      The majority of the Board recommends that the Article 15 imposed on
the applicant on 16 February 1994 be set aside and removed from his
records.  .  However, in view of the circumstances in this case, I believe
the Article 15 should remain undisturbed.

      The majority of the Board found based on the Ninth Air Force
Commander’s determination that the Article 15 would not be filed in the
applicant’s HQ USAF Selection Record or Officer Command Selection Record,
he did not intend for the Article 15 to be filed in the applicant’s
records.  However, I can reach no such conclusion, based on the evidence
before me.  While the applicant contends the Ninth Air Force Commander told
him the Article 15 would not be entered into his records and have no effect
on any assignment, promotion, or subsequent effect on his career, I can
find no corroborative evidence.  In the absence of a statement from the
Ninth Air Force Commander specifically stating what his intentions were, I
do not believe this panel should attempt to assume what they were.
Furthermore, I do not believe sufficient evidence has been presented which
would lead me to believe that the nonjudicial punishment was improper.  In
cases of this nature, I am not inclined to disturb the judgments of
commanding officers absent a strong showing of abuse of discretionary
authority.  I find no such showing here.  The evidence indicates that,
during the processing of this Article 15 action, the applicant was offered
every right to which he was entitled.  He consulted with counsel, waived
his right to demand trial by court-martial, and submitted oral and written
matters for review by the imposing commander.  After considering the
matters raised by the applicant, the commander determined that the
applicant had committed “one or more of the offenses alleged” and imposed
punishment on the applicant.  The applicant has not provided any evidence
showing that the imposing commander or the reviewing authority abused their
discretionary authority, that his substantial rights were violated during
the processing of the Article 15 punishment, or that the punishment
exceeded the maximum authorized by the UCMJ.  To the contrary, the
applicant is fortunate that he has been able to continue his military
career considering that he was subsequently tried and convicted by a
General Court-Martial for assaulting and unlawfully grabbing and lifting
other females.  I find it apparent that he has established a pattern of
behavior, which, in my opinion, raises serious doubt as to his ability to
serve as an officer.

      Based on the available evidence of record, I find no basis upon which
to favorably consider this portion of the application, and strongly
recommend you deny the majority’s recommendation to remove the contested
Article 15 from the applicant’s records.



                                        RICHARD A. PETERSON
                                        Panel Chair