RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-00085
            INDEX NUMBER:  126.00;111.01
      XXXXXXXXXXXXXX   COUNSEL:  Kirk B. Obear

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

The punishment he received under Article 15 on 18 Nov 98 be  set  aside
and he be reimbursed the $1200 forfeiture imposed on him.

The Officer Performance Report rendered on him for the period   28  Dec
97 through 27 Dec 98 be declared void and removed from his records.

________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel for the applicant submitted a 31-page brief with 17 attachments
in support of applicant’s appeal.   Counsel  contends  that  there  are
several aspects of the specification on the AF Form 3070  (Article  15)
which are problematic.  Anytime an offense is charged under one of  the
two “general” Articles (Articles 133 or  134)  the  specification  must
encompass conduct which  has  a  direct  and  palpable  effect  on  the
military, either because it erodes good order and discipline or because
it tarnishes  the  public  esteem  for  military  leadership.   Counsel
asserts that the circumstances leading up to  applicant’s  Article  15,
however, did not  consist  of  evidence  that  his  personal  life  was
interfering with his  professional  responsibilities,  or  any  similar
evidence that his private life was interfering  with  his  professional
responsibilities, or any similar evidence that  his  private  life  was
affecting his performance in any way.

Counsel further asserts that the individual that  wrote  the  statement
leading to the investigation and charges against the applicant  did  so
out of anger with a desire to see the applicant suffer.  The individual
was also no longer a  part  of  the  active  force  when  he  made  the
allegations against the applicant.  Since there is no evidence that the
relationship engaged in by the applicant  was  anything  other  than  a
private relationship at the time it occurred, it cannot be assumed that
this relationship had any detrimental effect on the Air Force  mission,
or any component of good order and discipline.

Counsel further indicates that when charges are presented to a military
member, it is tantamount to asserting that a good faith basis  for  the
charge  exists,  and  that  sufficient,  competent    (admissible   and
believable) evidence exists.  The circumstances of the applicant’s case
illustrate that there was a lack of  competent  evidence  against  him.
Counsel indicates that the individual that caused  the  action  against
the applicant sought to misuse  the  military  justice  system  to  his
advantage in seeking to harm the career of the applicant.

Although the applicant was only  charged  with  conduct  unbecoming  an
officer, he was reprimanded for committing  adultery.   This  seems  to
indicate that the commander regarded the conduct as having  constituted
adultery all along, but appears to have been reluctant to use the  word
itself until it was time to reprimand the applicant.  Counsel  provides
an in depth discussion on the law relevant  to  adultery  in  order  to
demonstrate that  the  Air  Force  has  not  followed  its  own  policy
regarding handling allegations of this nature.

Counsel also discusses the importance of providing adequate  notice  to
the alleged offender.  He maintains that the applicant made a conscious
decision not to demand trial by court-martial  based  upon  the  charge
that he was facing, and upon  advice  of  counsel.   He  also  received
advice from his counsel that they need not worry about  addressing  any
issues related to adultery.  This raises the issue of  whether  or  not
one can have effective assistance of  counsel  when  the  specification
charges one offense, but the commander finds him guilty of another.

Counsel asserts that the applicant’s OPR closing out 27 Dec 98 violates
Air Force Instruction 36-2402 by including  information  that  occurred
outside  the  reporting  period.   His  OPR  also   characterizes   the
applicant’s  conduct  as   an   “unprofessional   relationship.”    The
applicant, however, received an Article 15 for “conduct  unbecoming  an
officer” and the reprimand he  received  references  a  third  concept-
adultery.  All three  of  these  are  three  different  concepts  under
military law.  Counsel provides an expanded discussion on  the  concept
of “unprofessional relationship” to show its  nonapplicability  in  the
applicant’s case.

In addition to the brief prepared by  counsel,  applicant  submitted  a
seven-page  personal  statement  for  the  purpose  of  presenting  his
position on issues that haven’t been adequately represented in the case
record.  The applicant indicates that he knows what he  did  was  wrong
and that he is truly sorry for any pain and suffering  that  he  caused
his  supervisor.   However,  he  also  understands  that  there  is   a
difference between something being immoral and something being illegal--
a fact his superiors either failed to comprehend or to  disregard.   He
states that throughout the legal process, he  never  denied  wrongdoing
because he was confident that his superiors would see the situation for
what it was; an isolated incident of poor judgement on the  part  of  a
young, single officer with an  otherwise  solid  record.   He  and  his
counsel were certain that the Wing Commander would see  his  infraction
as a dead issue and would require little more than an admonishment  not
to do it again.  They certainly thought that no legal action  would  be
taken because the situation had ended nine months before, two  thousand
miles away, and did not affect the Air Force in any way.

The applicant  provides  details  of  why  he  believes  his  case  was
inappropriately handled.  He indicates that he  was  denied  access  to
documents or evidence in his case.  He also indicates that although  he
was initially told he was being investigated for adultery  and  conduct
unbecoming, he was only actually charged with conduct  unbecoming.   He
did not deny the allegation that he committed adultery because  he  was
never charged with that offense.   He  later  realized  that  the  main
reason that his chain of command was pursuing his case was  because  he
hadn’t denied wrongdoing.  If he had been  charged  with  adultery,  he
would have demanded trial by  court-martial.   He  believes  the  Staff
Judge  Advocate’s  opinion  that  the  commander  should  continue   to
prosecute based on the fact that he didn’t deny the charge of  adultery
is unfair because they never revealed their true intention of punishing
him for adultery.

Applicant indicates that although he never denied  wrongdoing,  he  did
deny that his conduct was “unbecoming” as  defined  by  the  UCMJ.   He
states that the SJA misused evidence  in  his  case  to  suit  his  own
purposes such as highlighting one voice mail message out  of  thirteen,
when  the  other  twelve  would  have  clarified  the  context  of  the
relationship between he and his supervisor’s wife.  The Wing  Commander
was never given the opportunity to consider all of the  information  in
his case because it was never made available to him.

The  applicant  provides  details  of  how   he   received   inadequate
representation from his Area Defense Counsel.  He indicates that he and
his attorney  were  stunned  when  they  learned  the  details  of  his
punishment.  He believes that the language of the Article 15  surprised
even the SJA that prosecuted him and the personal reprimand  issued  by
the wing  commander.   After  reviewing  the  guidance  on  nonjudicial
punishment, he thought there was a good chance the Wing Commander would
suspend the punishment.  However, his appeal to suspend the  punishment
was denied.  He was relieved that  his  ordeal  was  over  until  three
months later when he received a referral OPR.

He felt compelled to confront his Squadron Commander  on  the  OPR  and
provides a recap of how he remembers the discussion between  them.   He
also discussed the OPR with  the  Wing  Commander.   The  OPR  was  not
changed.  While preparing an appeal of the OPR to  the  ERAB,  his  new
lawyer provided him with information on “Unprofessional  Relationships”
that he thought might convince his Squadron  Commander  to  modify  the
OPR.  The Squadron Commander did not change his position, however.  The
applicant believes that the inaccuracy and intentional vagueness of the
comment on his OPR directly violates AFI 36-2406, Section 3.6.1.

The applicant indicates that he  was  denied  the  right  to  face  his
accuser by a “No Contact” order he  received  to  stay  away  from  his
supervisor’s wife.  He further indicates that it was important for  him
to question her because her statement was not completely accurate.   He
believes that  she  was  either  seeking  revenge  for  her  unrequited
feelings toward him or was  coerced  to  write  her  statement  by  her
husband.

Applicant indicates that the Article  15  and  Unfavorable  Information
File on him were terminated early.  He states  that  his  squadron  and
wing commanders have admitted  on  several  occasions  that  they  have
regrets over how they handled his case.

Counsel and applicant’s complete submission, with  attachments,  is  at
Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on  active  duty  in  the  grade  of
major.  His Total Active Federal Military Service Date is   18 Nov  88.
A resume of his last ten OPRs follows:

      Closeout Date               Overall Rating
        22 Aug 92                 Meets Standards
        22 Aug 93                 Meets Standards
        22 Aug 94                 Meets Standards
        22 Aug 95                 Meets Standards
        22 Aug 96                 Meets Standards
        22 Aug 97                 Meets Standards
        27 Dec 97                 Meets Standards
       *27 Dec 98                 Does Not Meet Standards
        27 Dec 99                 Meets Standards
        27 Dec 00                 Meets Standards

* Contested Report

The  remaining  relevant  facts  pertaining  to  this  application  are
contained in the evaluation prepared by AFLSA/JAJM found at Exhibit C.

________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denying the applicant’s request to set aside  the
Article 15 action.

An Article 15 is not a  formal  legal  proceeding  with  the  attendant
formal rules of charging, proof, and evidence.  It  is  a  disciplinary
measure more serious than purely  administrative  corrective  measures,
but less serious  than  trial  by  court-martial.   In  this  case  the
commander concluded that applicant had engaged in conduct unbecoming an
officer by engaging in sexual intercourse and other  sexual  acts  with
the wife of another officer.  There was  sufficient  evidence  for  the
commander to determine the offense had been  committed.   The  evidence
consisted of  the  statements  of  the  applicant’s  former  supervisor
(aggrieved party) and his  wife  and  the  rebuttal  statement  of  the
applicant.  The commander undoubtedly  considered  the  impact  on  the
former supervisor’s marriage from the former supervisor’s  perspective.
He also had to have considered the impact on  the  former  supervisor’s
mental health and his ability  to  function  and  perform  his  duties.
There  were  also  other  facts  considered  by  the  commander  before
determining  guilt  and  appropriate  punishment.   First,  the  former
supervisor’s wife was living in the  marital  abode  with  her  husband
during the course of the affair.  Second,  she  was  attending  marital
counseling sessions with her husband during the affair.  Third, she was
enduring great pain to keep  the  true  nature  of  their  relationship
secret from her husband.  Moreover, it is clear  from  applicant’s  own
feelings of guilt; described in his statements, that he was more than a
little  uncomfortable  with  her  “open   marriage   characterization.”
Indeed, the applicant’s actions are not consistent  with  the  innocent
victim portrayal that he would have  the  board  embrace.   The  record
shows  that  on  at  least  one  occasion,  he  left  a  phone  message
instructing his former supervisor’s wife to return his  call,  but  not
from home.  On another occasion, he denied having sexual relations with
her when directly confronted by his former supervisor.

Given these incontrovertible facts, the  applicant  attempts  to  shift
responsibility and blame to others for his misconduct.  He begins  with
the wife, whom he characterizes as relentless.  He also indicates  that
his former supervisor bears some responsibility for the illicit  affair
as well.  He allowed his wife to go to basketball games  with  him  and
permitted her to sit  in  the  back  seat  with  him  on  two  separate
occasions, while he sat in the front.  The applicant also contends that
he should have been given the benefit of  progressive  punishment.   He
infers in his submission that he believes a stay away order should have
been issued by the command with a following reprimand and/or Article 15
for failure to obey the order.  He continues his  argument  by  stating
that not only didn’t his conduct affect his  performance,  it  did  not
affect the performance of any other Air Force  member.   He  apparently
disregards the effect this affair was having on his  former  supervisor
and those who had to interact with him.

Applicant  argues  that  he  was  not  given  adequate  notice  of  his
adulterous conduct with his former supervisor’s wife and he was  denied
effective assistance  of  counsel  within  the  meaning  of  the  sixth
amendment by counsel’s failure to properly advise him  of  the  charges
against him.  As noted in the Manual for  Courts-Martial,  Article  133
includes acts made punishable by any other article, provided these acts
amount to conduct unbecoming an officer and a gentleman.  Applicant was
clearly on notice that his sexual relationship with  the  wife  of  his
former supervisor was a central factor  in  the  allegation.   Much  of
applicant’s defense then  and  now  is  that  his  former  supervisor’s
marital relationship was merely technical and of no consequence.   This
argument makes no sense unless applicant,  and  his  attorney,  clearly
understood that  the  adulterous  nature  of  the  relationship  was  a
critical element of the conduct unbecoming charge.

The applicant’s argument that he was not given  a  copy  of  the  SJA’s
advice to the commander that he states he read upside down while it was
on the paralegal’s desk is without merit.  While he is entitled to view
the evidence against him, he is not entitled to a copy  of  any  advice
that may be given by the local SJA to the commander.

A set aside should only be granted when the  evidence  demonstrates  an
error or a clear injustice.  The evidence presented by the applicant is
insufficient to warrant setting aside the Article 15 action,  and  does
not demonstrate an equitable basis for relief.

The complete evaluation is at Exhibit C.

AFPC/DPPPE recommends denial of the applicant’s request to void his OPR
closing out 27 Dec 98.  After a further review of  the  matter  of  the
term “unprofessional relationship” with AFPC/JA, they conclude that the
wording of the OPR is not unfactual.   Had  the  OPR  stated  that  the
applicant was given an Article 15 for unprofessional behavior, his case
might have merit.  However, the rating chain was simply documenting the
behavior of the applicant.  In fact, the rater actually chose the  most
conservative and benign approach to documenting the  offenses  detailed
in the Article 15 findings.  While the rating chain had the  option  of
including specific reference to the Article 15, to include any  details
contained therein, they chose  to  document  only  the  fact  that  the
applicant had engaged in a relationship that was, by its  very  nature,
unprofessional.

If they were to agree with the applicant’s assumption  that  because  a
wrong term was used in documenting his actions,  they  would  recommend
the BCMR require the rating chain to reword the OPR to include specific
wording in the Article 15.  Often in writing referral  reports,  raters
choose wording  designed  to  document  behavior  without  specifically
“airing dirty laundry” of a case.  This allows commanders  to  provide,
“a second chance” of sorts to the ratee.

The complete evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant begins his response  to  the  Air  Force  evaluations  by
indicating stating “What I did was wrong, but it was not illegal.”  The
applicant states that the offense he received the Article  15  for  was
not a violation of Article 133 of the UCMJ.  Further he indicates  that
the statement in his OPR, “Unprofessional relationship  counter  to  AF
policy mars the otherwise stellar record  of  this  top  performer”  is
inaccurate and unfairly  prejudicial  to  his  career.   The  statement
directly violates the two distinct Air Force Instructions that regulate
Officer Performance Reports and Unprofessional Relationships.

The applicant responds that the advisory opinion prepared by AFLSA/JAJM
attempts to obfuscate the issue that should have been addressed at  his
hearing: whether or not his behavior constituted conduct unbecoming  an
officer as defined by Article 133 of the UCMJ.  He  contends  that  the
author attempts to cloud the issue and appeal to the  Board’s  emotions
by discussing the concept of adultery.  The applicant points  out  that
he was not charged with adultery and if he  had  been,  he  would  have
demanded a  trial  by  court-martial.   Applicant  indicates  that  the
Article 15 proceedings were unjust.  Although he may not have  had  the
right to review a copy of the legal advice considered by the commander,
the advisory does not discuss violation of his rights.   He  requested,
but was denied the right to cross-examine his former supervisor and his
wife.  He  was  denied  access  to  the  “more  mundane”  tape-recorded
messages that may have been exculpatory.  He indicates that  he  agrees
with the opinion that the commander had  to  weigh  all  the  evidence,
including the credibility  of  the  various  witnesses,  and  make  his
decision.  If this is true, however, should not the commander have been
given access to all of the messages rather than only  the  one  out  of
thirteen that worked against him?  If the commander was to  assess  the
credibility of the various  witnesses,  shouldn’t  he  have  questioned
those witnesses?

Applicant further indicates that he agrees with the assertion that  the
“on the scene” commander has “first-hand access to facts and  a  unique
appreciation for the needs of morale and discipline in their  command.”
He does not agree the commander that imposed the Article  15  fits  the
description of the “on the scene  commander.”   He  asserts  that  this
commander was too far removed from the scene and knew nothing about the
scene or the parties involved.  The commanders who might have been able
to offer valuable insights into his case were never  consulted  or  the
results might have been different.

The applicant indicates that although  the  author  of  the  AFLSA/JAJM
advisory opinion disagrees with his arguments against  the  Article  15
proceedings, they do recognize that there is a  problem  with  his  OPR
closing 27 Dec 98.  In fact,  the  Air  Force  attorney  addresses  the
inappropriateness of the comment “Unprofessional  relationship  counter
to Air Force policy mars the  otherwise  stellar  record  of  this  top
performer” on two separate occasions.   First,  AFLSA/JAJM  states  “We
note this may be an improper characterization in violation of  AFI  36-
2406.”  The legal opinion later states “Nevertheless, it  would  appear
that there is a question  as  to  whether  the  language  used  in  the
referral OPR is proper in light of  the  definition  of  unprofessional
relationships as contemplated by Air Force Regulations.”

The applicant contends that the advisory opinion offered by  AFPC/DPPPE
indicates that the author believes that his additional rater did him  a
favor by not mentioning the specific behaviors  involved.   The  author
fails to realize that the term “unprofessional relationship” is a  much
more  serious  offense  than  the  alternative  phrases  he   suggests.
Although his additional rater was advised to change the “unprofessional
relationship” reference, he refused to do so.  He  further  exacerbated
the injustice by amplifying the comment with the words “contrary to Air
Force policy.”

The applicant discusses the  requirement  Air  Force  members  have  to
comply with Air  Force  Instructions  and  how  two  Instructions  were
violated in his case.  Based on his additional  rater’s  violations  of
mandatory guidance, his OPR closing 27 Dec 98 should be voided.

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 error or injustice.  We took notice of the applicant's
complete submission in judging the merits  of  the  case;  however,  we
agree with the opinions and recommendations of the Air Force offices 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.  We disagree with the  applicant’s  assertion  that
his conduct and actions did not negatively affect the Air Force or  his
standing as an officer.  As the applicant stated in his rebuttal to the
Air Force evaluations, what he  did  was  wrong.   Notwithstanding  his
belief that what he did was not illegal, we find no evidence  that  the
commander’s actions were improper or  an  abuse  of  his  discretionary
authority.  Much of the applicant’s argument  seeks  to  share  or  lay
blame for his misconduct on  other  factors  beyond  his  own  personal
responsibility.  We find this unacceptable.  While we note that he  has
established an overall fine  record  of  performance,  we  believe  his
actions, during the period in question, exemplify qualities not desired
in Air Force officers.  Therefore, in the absence of  evidence  to  the
contrary, 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.

_______________________________________________________________

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 02-00085 in
Executive Session on 7 August 2002, under the  provisions  of  AFI  36-
2603:

      Mr. Vaughn E. Schlunz, Panel Chair
      Mr. E. David Hoard, Member
      Mr. Clarence D. Long, III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Jan 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 22 Mar 02.
    Exhibit D.  Memorandum, AFPC/DPPPE, undated.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Jun 02, w/atchs.
    Exhibit F.  Letter, Applicant, dated 11 Jul 02.




                                   VAUGHN E. SCHLUNZ
                                   Panel Chair