RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-01610
            INDEX CODE:  111.00, 126.04.
            131.00
            COUNSEL:  Mr. Fred L. Bauer

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

a.  His nonjudicial punishment under Article  15  of  the  Uniform  Code  of
Military Justice (UCMJ) be removed from his records.

b.  His referral Officer Performance Report (OPR) rendered  for  the  period
31 Jul 95 through 25  Nov  96,  be  declared  void,  and  removed  from  his
records.

c.  He be granted other such relief that would put him in  the  position  he
would have been in if the allegations had never been made.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 16 May 96, the NCO husband of Mrs. C-- reported that his wife was
raped one to four months earlier.  According to Mrs. C--, on 1 Mar 96 she
had been drinking heavily with friends when the applicant took her to his
billeting room and had forcible oral and vaginal intercourse and that he
ejaculated three times in quick succession.  A week later she claimed she
was pregnant.  She initially said it was her husband's baby but later
said that it was the applicant's baby because the condom broke during
intercourse.  The applicant denies her allegations and has passed two
polygraphs showing that he did not even have intercourse with her.

The allegations of rape and sodomy are easily discredited.  Aside  from  the
humanly impossible allegation of three quick ejaculations her statements  to
others were hopelessly inconsistent.  She told her husband two  and  a  half
months after the alleged incident that she was  raped  one  to  four  months
earlier but in her statement she said it was the first of March, two  and  a
half months earlier.  She told the Office of  Special  Investigations  (OSI)
that she told a friend that it was her husband's baby but stated  also  that
she had not had sex with her husband in the  last  5  months.   Her  husband
refutes this in his statement to the OSI.  Other witnesses  noted  that  she
tried to keep in touch with the applicant and have sex with  him  after  the
alleged rape.  There is evidence that he tried  to  avoid  her.   A  witness
that drove her home the morning after the alleged rape stated that  she  did
not claim she was forced to have sex with him but  when  asked,  she  smiled
and said that she had been with him the  previous  night.   She  boasted  to
another friend of having sex with him one day  and  later  claimed  she  was
raped and forcibly sodomized by him.  Since she has had an abortion,  it  is
not possible to have a paternity test to prove that the  applicant  did  not
impregnate her.

On the evening of the alleged incident the applicant went to a bar to
meet with two fellow officers.  Several Asian women were there, two of
which were romantically involved with his friends.  A third woman who
turned out to be Mrs. C--, approached the applicant and asked him if he
wanted to dance, he declined.  The two other officers later left with the
two females and he remained.  When he went to settle the bar tab he was
told by the bartender that the two females that left with his friends
were married to enlisted men stationed at Altus.  He felt the need to
warn them and asked Mrs. C-- if she knew where they went.  He asked her
to show him where they went and she volunteered to do so.  After a while
it became obvious that she did not know where their friends went and he
suggested that they go to their respective homes.  She then asked if she
could go to his hotel room and use his phone to try to locate her
friends.  While in his room, after unsuccessfully finding her friends she
began to sob when he suggested that he take her home and began to tell
him about her marital difficulties and abusive relationship.  Trying to
establish common ground he shared his marital difficulties with her and
offered to help her.  It was getting late and she asked if she could stay
for a few hours until her friend came to pick her up.  While realizing
letting her stay was awkward, he agreed and let her stay.  She slept on
the bed and he slept on a chair.  The next morning she called for a
friend of hers to come and pick her up and she left.  What he did not
realize at the time was that she had taken an American Express Gold Card
application that he had completed from his room.  The application
detailed his home address and his wife's information as well.

About 2 weeks later Mrs. C-- called the applicant at his hotel stating  that
she needed to talk to him about something very important.   They  met  in  a
Wal-Mart parking lot and went  for  a  walk  where  she  told  him  she  was
pregnant by another man and was afraid of what her husband would do when  he
found out.  She said that she needed money for an abortion  and  to  fly  to
the Philippines.  The applicant knew that  she  was  involved  with  another
officer and believed that the other officer was  the  father  of  her  baby.
When he refused to give her money she told him that she would tell his  wife
that they had slept together.  The applicant knew the  seriousness  of  this
blackmail attempt because of  the  effect  it  would  have  on  his  divorce
settlement and his military career.  In order to buy some more time he  told
her he would think of a way to help her out.  Over the  next  few  days  she
made repeated attempts to contact the applicant but he  was  able  to  avoid
her until she showed up at is room one day repeating the  blackmail  threat.
He suggested that she submit to a pregnancy test to  determine  if  she  was
pregnant before the date she came to his room.  She agreed and they went  to
Dallas to a clinic that he had previously checked with to perform the  test.
 The test showed that she was 8 weeks  pregnant  with  twins,  which  proved
that she was pregnant more than  a  month  before  they  met.   He  now  had
concrete proof that she was a  liar  but  because  of  privacy  concerns  he
cannot get this information from the clinic, only she can.

At that point her tone changed and she practically  begged  him  for  money.
He told the counselor at the clinic that he felt she was in danger.  Mrs. C-
- said it was true and  admitted  at  that  point  that  the  applicant  had
nothing to do with her pregnancy.  The counselor  suggested  termination  of
the pregnancy and asked the applicant if he could bring her  back  the  next
morning, which he agreed to do.  After the abortion Mrs. C-- was  unable  to
travel and the counselor again asked the applicant if they  could  stay  one
more night,  again  he  agreed.   After  they  returned  to  Altus  AFB  she
repeatedly made attempts to contact him and on one occasion showed up  while
he was talking to a mutual acquaintance.  A few days later  he  returned  to
Charleston, SC.

Mrs. C-- then told her story to her husband and the OSI.   Not  knowing  all
the facts, his commander initiated Article 15 action alleging adultery.   At
the time of the commander's  decision,  the  applicant  had  not  yet  taken
either polygraph test.  He took one  on  15  Aug  98  and  passed,  yet  his
commander  still  refused  to  set  aside  the  Article  15  despite  strong
encouragement he received from the staff judge advocate at  Charleston  AFB.
A second polygraph test was taken on 9 Dec  98  and  again  he  passed.   He
subsequently left active duty for the Air Force Reserves under the  mistaken
belief that his Article 15 would not follow him.

If his commander was confident in the allegations of rape, forcible  sodomy,
and adultery, court-martial action  would  have  been  justified.   However,
they knew she was a liar and instead offered nonjudicial punishment.  It  is
important to  realize  that  accepting  Article  15  punishment  is  not  an
admission of guilt.  His responses make it clear that he has  always  denied
any wrongdoing.  Since Mrs. C-- had no credibility all that was  needed  was
for it to be shown that there were reasonable explanations for her being  in
his room  and  accompanying  her  to  Dallas.   There  is  no  doubting  the
applicant's truthfulness in this matter.  He  has  done  everything  humanly
possible to  prove  his  innocence  including  the  extraordinary  steps  of
passing two polygraph examinations.

In  support  of  his  request,  applicant  provided  his  counsel's   brief,
documents  associated  with  his   polygraph   examinations,   and   witness
statements.  His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________


STATEMENT OF FACTS:

On 22 May 88, the applicant was appointed a second  lieutenant,  Reserve  of
the Air Force.  He was voluntarily ordered to extended  active  duty  on  24
Sep 88.  He was progressively promoted  to  the  grade  of  captain,  having
assumed that grade effective and with a date of rank of 23 Jul 92.   He  was
integrated into the Regular Air Force on 3 Mar 95.

On 22 Aug 96, the applicant was notified by his commander of his  intent  to
recommend  nonjudicial  punishment  under  Article  15  of  the   UCMJ   for
wrongfully having sexual intercourse with a married  woman,  not  his  wife.
He was advised of his rights in this matter and acknowledged receipt of  the
notification on 2 Sep 96.  After consulting counsel,  the  applicant  waived
his  right  to  demand  trial  by   court-martial,   accepted   Article   15
proceedings, and provided a written and oral presentation to his  commander.
 On 13 Nov 96, after consideration of all  the  facts,  his  wing  commander
determined that he committed the offense alleged and imposed  punishment  on
the applicant.  He was ordered to forfeit $1,500 pay per month for 2  months
and was reprimanded.  The applicant appealed his  punishment  to  21  AF/CC.
His appeal was denied.

The applicant resigned his Regular  Air  Force  commission  and  accepted  a
commission as a captain, Reserve of the Air Force on 9 Jun 99.

The following is a resume of the recent applicant's OPR  profile  subsequent
to his promotion to the grade of captain:

      PERIOD ENDING          OVERALL EVALUATION
            14 Nov 92  Meets Standards (MS)
      14 Nov 93        (MS)
            14 Nov 94             (MS)
            30 Jul 95             (MS)
            13 Oct 95        Training Report (TR)
      *     25 Nov 96         Does Not meet Standards
            25 Nov 97             (MS)
            25 Nov 98             (MS)
            08 Jun 99             (MS)
            08 Jun 00             (MS)
            21 Jun 01             (TR)

* - Contested Report

Pursuant to the Board's request, the OSI provided an unredacted  copy  of  a
Report  of  Investigation  pertaining  to  the  applicant.   The  report  is
appended at Exhibit I.

_________________________________________________________________
AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request  and  states  that  because  of  the
untimely nature  of  the  application  and  his  failure  to  establish  his
commander's lack of due diligence in determining  his  findings,  denial  is
recommended.  By electing to  resolve  the  allegation  in  the  nonjudicial
forum, the applicant placed the responsibility  to  decide  whether  he  had
committed the offense with the commander.   There  was  sufficient  evidence
for the  commander  to  determine  the  offense  had  been  committed.   His
arguments  failed  to  convince  either  the  commander  or  the   appellate
authority.  While a different fact finder  may  have  come  to  a  different
conclusion, the commander's findings are neither  arbitrary  nor  capricious
and should not be disturbed.

Although Mrs. C-- alleged rape and forcible sodomy,  his  commander  decided
to offer nonjudicial punishment for  adultery,  apparently  considering  the
bases for the more serious  offenses  to  be  questionable.   The  applicant
wrongly contends that the commander erred in dismissing the rape and  sodomy
allegations and yet persisting in the adultery charge.  To the contrary,  it
is quite reasonable to judge a person capable of engaging in consensual  sex
with someone other than his wife, while at the  same  time  considering  the
same person unlikely to have committed the more  serious  offenses  of  rape
and forcible  sodomy.   It  is  not  illogical  to  conclude  the  commander
believed that there had been an adulterous relationship that had gone  sour.
 In essence, he suggests that the Board reverse the commander for  believing
the applicant partially but not completely.

This case illustrates the difficulties  in  addressing  the  factual  issues
involved in nonjudicial  punishment  long  after  the  punishment  has  been
imposed and  the  evidence  and  material  are  no  longer  available.   The
applicant  is  able  to  submit  any  material,  make  any  allegations  and
assertions, and spin the material available in a manner  that  supports  his
contentions without significant risk of contradiction.  He  presumably  made
these arguments with his commander  and  the  commander  and  the  appellate
authority did not agree with him.  He should not prevail here  absent  clear
error or injustice.   There  is  no  evidence  that  nonjudicial  punishment
process did not work in this case, other  than  his  disagreement  with  the
result.  It is noteworthy to point out that although he again denies  having
committed the offense in his response to a  referral  OPR,  he  does  state:
"While I recognize that it is not unreasonable to arrive at  the  conclusion
you did with the evidence presented, I  must  emphasize  that  much  of  the
evidence was either a lie, or incomplete, and in sum did not tell the  whole
story."  The JAJM evaluation is at Exhibit C.

AFPC/DPPPE reviewed  applicant's  request  and  states  that  an  evaluation
report is accurate as written when  it  becomes  a  matter  of  record.   To
effectively change the OPR a decision rendering the Article  15  to  be  set
aside must be completed.  If the Article 15 is set aside, the OPR should  be
voided.  The DPPPE evaluation is at Exhibit D.

AFPC/DPPPO  reviewed  applicant's  request,  concurs  the  JAJM  and   DPPPE
advisories, and states that SSB consideration is not warranted.   The  DPPPO
evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded and states that  he  obviously  could  not  request  set
aside from the commander who administered the Article 15 and  his  successor
did not take command for another 18 months  due  to  the  Balkans  conflict.
Shortly after  he  separated  from  active  duty  and  transitioned  to  the
Reserve, his commander removed his Unfavorable Information  File  (UIF)  due
to being impressed with his duty and  upon  recommendation  from  the  Judge
Advocate (JA) who felt he had been dealt an injustice.   His  commander  and
the JA encouraged him to request the set-aside.  Personnel had informed  him
that the Article 15 would not follow him into the Reserve.  The  AFBCMR  has
access to everything that his commander had available in deciding his  guilt
including the  applicant  himself.   He  asked  his  commander  to  use  the
investigative powers available to interview Mrs. C-- or any other  witnesses
but he refused.  His statement in his reply to the referral OPR  was  merely
a respectful and polite remark to a  superior  officer  in  the  context  of
providing further illumination to the evidence provided.

The applicant realized that he provided most of the  evidence  used  against
him.  He realizes that much of his statement if viewed with  cynicism  could
be used against him.  He could have denied the trip to Dallas,  having  ever
met Mrs. C--, or her being in his room.   However,  he  took  a  vow  to  be
honest and a man of integrity, so when asked, he told the entire truth.   In
1996 at the height of the  Kelly  Flynn  controversy,  the  last  subject  a
commander wanted to be seen as "sweeping under the carpet" was any  sort  of
sexual misconduct.  It is noteworthy that the wing commander who refused  to
set-aside the punishment served as vice wing commander under  the  commander
who issued the Article 15  and  was  hand  picked  for  the  wing  commander
position.  In fact, he knows the commander spoke  to  the  former  commander
about his set-aside request.  It is not unreasonable  to  conclude  that  he
did not want to replace the judgment of his most valuable advocate.

G-- C-- is lying and he is telling the truth.  The people closest  to  Grace
have said she is lying and had a specific motivation for  blackmailing  him.
Those who were present that evening said he expressed no interest  in  Grace
and performed admirably as their commander.   He  has  taken  two  polygraph
tests  and  passed  them  both.    Applicant's   complete   response,   with
attachments, is at Exhibit G.

Council for the applicant provided a statement  indicating  that  JAJM  does
not  challenge  his  client's  integrity.   The  evident  of  his   client's
innocence and integrity previously presented is so strong that there  really
should not be any doubt of his  innocence.   Under  these  circumstances  it
would not be in the interest of justice to punish an  innocent  man  because
he was given bad advice by Personnel.  It would be especially  wrong  in  my
client's case because of his  continuing  outstanding  service  in  the  Air
Force (his aircraft came under fire in Afghanistan  within  the  past  month
and he is continuing to serve in the current conflict.

Given the extraordinary  amount  of  evidence  impugning  the  complainant's
character and credibility, it was unreasonable for  the  commander  to  take
her word on anything.  The woman told wildly  inconsistent  stories,  worked
as a stripper, made claims that weren’t even physically possible;  and  even
her friends felt compelled to come forward and support my client.  We  would
ask the  reviewers  of  this  package  to  once  again  review  our  initial
application and see for themselves just how outrageously and  unfairly  this
veteran pilot has been treated.  The  counsel's  complete  statement  is  at
Exhibit H.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  probable  error  or  injustice.   We  carefully  reviewed  the
applicant's  complete  submission  in  judging  the  merits  of  this  case;
however, given the circumstances of this case, we are not persuaded  by  the
evidence presented that the nonjudicial punishment  initiated  was  improper
or unjust.  In cases of this nature, we are  not  inclined  to  disturb  the
judgments of commanding  officers  absent  a  strong  showing  of  abuse  of
discretionary authority.  We  have  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  was
represented by counsel, waived his right to demand trial  by  court-martial,
and  submitted  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
sufficient 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.  In view of  our
determination concerning the Article 15, we do  not  believe  the  contested
OPR is either in  error  or  unjust.   Therefore,  based  on  the  available
evidence of record, we find no basis upon which to favorably  consider  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.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of 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  Docket  Number  01-01610  in
Executive Session on 5 Sep 02, under the provisions of AFI 36-2603:

      Mr. Albert F. Lowas, Jr., Panel Chair
      Mr. Christopher Carey, Member
      Ms. Ann-Cecile McDermott, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 May 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 11 Dec 01.
    Exhibit D.  Letter, AFPC/DPPPE, dated 25 Jan 02.
    Exhibit E.  Letter, AFPC/DPPPO, dated 8 Feb 02.
    Exhibit F.  Letter, SAF/MRBR, dated 15 Feb 02.
    Exhibit G.  Applicant's Letter, dated 20 Feb 02, w/atchs.
    Exhibit H.  Letter, Counsel, dated 7 Mar 02, w/atchs.
    Exhibit I.  AFOSI Report of Investigation - Withdrawn.



                                   ALBERT F. LOWAS, JR.
                                   Panel Chair