RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01081
            INDEX CODE:  131.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His previous rank of senior master sergeant be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The punishment he received was overly harsh and unjust.  His reduction
to the grade of master sergeant should have been suspended.

His case represents a failure of the system.  The system  failed  when
judgments  were  made  about  his  engagement  in  an   unprofessional
relationship with a subordinate based on speculation rather than fact.

The guidance to commanders in AFI 36-2909 about considering the impact
of a  relationship  on  the  work  environment  and  using  the  least
necessary action to correct the situation was not followed.

Illegal tapes of personal conversations  made  without  his  knowledge
were entered into evidence, taken out of context, and twisted to build
a case against him.

He was punished for something he simply did not do.

He did not willfully fail to inform his superiors that  a  subordinate
was contemplating divorce when she submitted a Date  Estimated  Return
from Overseas (DEROS) extension package.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, copies of the Article 15, a United States Air Force  (USAF)
Security Police Report of Investigation (ROI), a climate survey,  tape
recording transcripts, DEROS package, and supportive statements.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment on 27 Sep 78.  He  entered
his last enlistment on 12 Dec 94 for a period of four years, which was
extended on 9 Apr 97 for a period of 34 months.  Prior to  the  matter
under review, the applicant was progressively promoted to the grade of
senior master sergeant.

Applicant's Enlisted  Performance  Report  (EPR)  profile  since  1990
follows:

      PERIOD ENDING    EVALUATION

      15 May 90  5
       2 Mar 91  5
       2 Mar 92  5
       2 Mar 93  5
       2 Mar 94  5
       2 Mar 95  5
       2 Mar 96  5
      29 Mar 97  5
      29 Mar 98  5
      27 May 99  2 (Referral)
      25 May 00  4

A USAF Security  Police  ROI,  dated  3  Mar  99,  indicates  that  an
investigation    was    conducted    regarding    an     inappropriate
relationship/adultery concerning the applicant and  a  senior  airman.
The senior airman’s spouse reported that he  suspected  his  wife  was
having an affair with the applicant.  The investigation revealed  that
the applicant and the senior airman did  engage  in  an  inappropriate
relationship.

On 8 Apr 99, the  applicant’s  commander  notified  him  that  he  was
considering whether he should recommend to  the  Commander,  11th  Air
Force (11 AF) that he should be punished  under  Article  15,  Uniform
Code of Military Justice (UCMJ) based on allegations that  between  on
or about 1 Mar 98 and on or about 4 Mar 99, he  was  derelict  in  the
performance of his duties in that he willfully failed to refrain  from
engaging in an inappropriate familiar relationship, to include hugging
and kissing, with a senior airman, a subordinate female airman in  his
military work section whom he supervised, as it was his  duty  to  do;
and, on or about 26 Feb 99, he was derelict in the performance of  his
duties in that he willfully failed to advise and inform  his  superior
officers that a senior airman was  contemplating  divorce  proceedings
during the time she submitted an out of cycle DEROS package, as it was
his duty to do.  The applicant  was  advised  of  his  rights  in  the
matter.  After consulting legal  counsel,  the  applicant  waived  his
right to demand  trial  by  court-martial,  accepted  the  nonjudicial
proceedings under Article  15,  and  submitted  written  comments  for
review.  On 13 Apr 99, after considering the matters presented by  the
applicant, the 11 AF commander found that the applicant had  committed
one or more of the offenses alleged and imposed  punishment.   He  was
reduced from the grade of senior master sergeant  to  master  sergeant
and reprimanded.  The applicant appealed the  punishment  but  it  was
denied by the appellate authority.  On  11  Jun  99,  legal  authority
found that the nonjudicial proceedings under Article 15  were  legally
sufficient.

On 31 Aug 00, the applicant was relieved from active duty and  retired
for length of service, effective 1 Sep 00.  He was  credited  with  21
years, 3 months, and 18 days of active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  recommended  denial,  indicating  that   the   applicant's
position is flawed and without merit.  In this case, contrary  to  the
applicant’s assertion, the focus was not on adultery  but  rather  the
applicant’s dereliction  of  duty  in  cultivating  an  unprofessional
relationship with a subordinate in his direct chain  of  command.   If
adultery had been charged and  proved  in  these  circumstances,  that
would have constituted an inappropriate  relationship.   However,  the
converse is not true--the fact that adultery was neither  charged  nor
proved does not  mean  an  unprofessional  relationship,  under  these
facts, did not exist. AFI  36-2909,  Professional  and  Unprofessional
Relationships dated 1 May 1996, paragraph 2.2  defines  unprofessional
relationships as follows:

      Relationships are unprofessional, whether  pursued  on  or  off-
      duty, when they detract  from  the  authority  of  superiors  or
      result in, or reasonably create the  appearance  of  favoritism,
      misuse  of  office  or   position,   or   the   abandonment   of
      organizational  goals  for  personal  interests.  Unprofessional
      relationships  can  exist  between  officers,  between  enlisted
      members, between officers  and  enlisted  members,  and  between
      military personnel and members of  the  civilian  employee  work
      force.

According to AFLSA/JAJM, the evidence supports the allegation that the
applicant had an inappropriate relationship with a senior airman.   As
her supervisor, the applicant knew or should have known of his duty to
refrain from engaging in an inappropriately familiar relationship with
a subordinate.  The applicant stepped over the line in  cultivating  a
personal relationship with a senior airman.  The applicant  socialized
with the airman in off-duty hours and by his own  admission  discussed
the possibility of a future relationship  with  her.   He  essentially
interfered in her marriage.  His conduct is a serious  deviation  from
the standards of conduct expected of a senior noncommissioned officer.

AFLSA/JAJM stated that while it does  appear  that  the  tape-recorded
conversations between the applicant and the senior airman violated the
federal wiretapping statute, that does not settle the issue.   Federal
law requires the consent of one of the parties.  No one disputes  that
the  senior  airman’s  spouse  had  no   authority   to   tape   phone
conversations without either of  the  participant’s  permission.   The
dispute arises as to whether that evidence  may  be  used  to  support
nonjudicial  punishment.   Military  court-martial   proceedings   are
governed by the Military Rule of Evidence (MREs).   The  MREs  do  not
apply to nonjudicial punishment but can be instructive.  Even  if  the
MREs were applicable, it is far from clear  whether  they  would  have
required the suppression of the evidence.  Federal circuit  courts  of
appeal are split on  whether  a  government  agency,  which  does  not
participate in the illegal taping may use  the  recordings  for  other
proper purposes under a “clean hands” theory and military courts  have
yet to address the matter.  However, it is clear that by direction  of
the President, the rules of evidence applicable to  courts-martial  do
not apply to procedures  under  Article  15.   Nonjudicial  punishment
provides commanders with an essential and prompt means of  maintaining
good order and discipline and also promotes positive behavior  changes
in servicemembers without the stigma of  a  court-martial  conviction.
It is a proceeding denominated by  Congress  as  “nonjudicial,”  which
provides  only  for  rather  modest  penalties,  and  which  does  not
constitute a criminal conviction.  The Supreme  Court  has  recognized
that nonjudicial punishment is an administrative  method  of  handling
minor offenses and is not a criminal prosecution.  The use of the term
commanding   officer’s   nonjudicial   punishment   underscores    the
legislative  intent  to  separate  nonjudicial  punishment  from   the
judicial procedures of the military’s criminal law forum,  the  court-
martial.  As  noted  in  the  report  of  the  Senate  Armed  Services
Committee accompanying the comprehensive amendments to Article  15  in
1962:  “Since the punishment is nonjudicial, it is not considered as a
conviction of a crime and in this sense has  no  connection  with  the
military court-martial system.”  The Court of Appeals  for  the  Armed
Forces recognized that Article  15  disciplinary  punishments  may  be
imposed without the essential attributes of a criminal trial, such  as
confrontation of adverse witnesses,  representation  by  counsel,  and
reliance  on  formal  rules  of  evidence.   The  informal  nature  of
nonjudicial punishment, reflecting the  commander’s  need  to  quickly
dispose of minor offenses without resorting to court-martial, is  more
than balanced  by  the  servicemember’s  option  to  have  the  matter
resolved in a formal criminal proceeding—the  court-martial——bound  by
formal rules of evidence and procedure.

According to AFLSA/JAJM, this is  a  classic  case  of  an  individual
seeking to have the benefits of the disposition of  criminal  offenses
in a nonjudicial forum  with  limited  powers  of  punishment  if  the
individual is found to have committed the offenses, but seeks to  have
the full protection of a full criminal trial.  The applicant  had  the
opportunity to refuse the Article 15 proceeding and  have  this  issue
decided by a military judge.  Because the investigators acted properly
and  with  “clean  hands,”  AFLSA/JAJM  found  that  the   applicant’s
commander appropriately considered the matters  on  the  tapes.   They
indicated that it was worth noting that it was unclear what weight, if
any, the commander gave the tapes.  As the applicant noted, the  tapes
in their worst light do not indicate that he  and  the  senior  airman
conspired to be together and nothing was said of a sexual nature.  Any
error was harmless to the applicant under those circumstances.

In AFLSA/JAJM’s view, even if, out of an  abundance  of  caution,  the
tapes were not considered, there was more than sufficient evidence for
the commander to conclude that there was an inappropriate relationship
between the applicant and senior airman.   The  senior  airman  stated
that she and the applicant were good friends and that she confided  to
him on several occasions  about  her  marital  problems  as  well  her
pregnancy.  She admitted to visiting the applicant at his home  on  at
least five occasions and to talking on the phone with the applicant at
least once or twice a week.  She denied having sexual intercourse with
the applicant but did admit that they discussed the possibility  of  a
future relationship together.  She also indicated  that  she  and  the
applicant had hugged and kissed on two occasions.  She had  dinner  at
the applicant’s house  on  Valentine’s  Day.   In  probably  the  most
dramatic demonstration that this relationship exceeded  that  expected
in the normal supervisory-subordinate relationship, she  insisted  the
applicant be present  at  the  birth  of  her  child.   The  applicant
admitted to a  close  friendship;  embracing  the  senior  airman  but
claimed it was out of affection as opposed to passion; and agreed they
spoke of a possible future together, but they  agreed  they  were  not
free to pursue it.  Based on comments to the senior  airman’s  spouse,
it was clear  that  the  relationship  was  common  knowledge  in  the
neighborhood and workplace.

AFLSA/JAJM noted the applicant’s argument  that  he  had  no  duty  to
inform his superiors that he knew the senior  airman  and  her  spouse
were contemplating divorce.  They concurred that there was no specific
regulatory requirement  that  supervisors  who  have  knowledge  of  a
potential divorce must so inform their superiors when  an  application
affecting  a  subordinate’s  DEROS  is  filed.   However,   AFLSA/JAJM
indicated that the applicant missed the overarching obligation imposed
on all Air Force members, much less a senior NCO  and  supervisor—-the
core value of integrity.  Inherent in that obligation is the  duty  of
candor and truthfulness, particularly when the  applicant’s  knowledge
was critical to an honest evaluation of the  extension  request.   The
stated reason in the extension, which the applicant acknowledged,  was
the senior airman’s desire to keep  her  family  together.   Knowledge
that a divorce was under consideration would have cast the request  in
a less favorable light and would certainly been a key consideration in
the  decision  on  the  application.   The  applicant  concealed  that
information.  According to paragraph  36-2110,  paragraph  3.8.6.6,  a
DEROS request must be fully justified and may be  disapproved  by  the
commander.  Under these circumstances,  AFLSA/JAJM  stated  that  they
have no hesitation in concluding that the  applicant  had  a  duty  to
fully inform his commander of all the facts when submitting the  DEROS
package in order to assist the commander in making  a  fully  informed
decision.

In AFLSA/JAJM’s view, there was sufficient evidence for the  commander
to determine the offenses had been committed.  The evidence  supported
the first allegation that the applicant was  derelict  in  his  duties
when he failed to refrain from engaging in an inappropriately familiar
relationship with the senior airman.  The evidence also supported  the
commander’s conclusion that the applicant was  derelict  in  willfully
failing to inform his superiors of  information  critical  to  a  fair
evaluation of the  DEROS  application.   Considering  the  aggravating
factors that he was her supervisor, the senior airman was  married  to
another military member who was junior in rank to the  applicant,  and
the extent  to  which  he  interfered  in  the  their  marriage,  this
specification alone supported the punishment of  a  reduction  to  the
grade of master sergeant.  When considered with the conclusion that he
purposely withheld the DEROS information, the  reduction  was  clearly
within  the  reasonable  bounds  of   appropriate   punishment.    The
applicant’s arguments failed to  convince  either  the  commander  who
imposed punishment or the appellate authority.  While  different  fact
finders may have come  to  a  different  conclusion,  the  commanders’
findings were neither arbitrary  nor  capricious  and  should  not  be
disturbed.  The application should only be granted when  the  evidence
demonstrates an error or a clear injustice.  The evidence presented by
the applicant was insufficient to warrant setting aside his  reduction
to master sergeant, and did not demonstrate  an  equitable  basis  for
relief.  The applicant has provided no evidence of a  clear  error  or
injustice related to the nonjudicial punishment action.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB deferred to the recommendation of  AFLSA/JAJM,  indicating
that if the Board feels there was an  injustice  and  sets  aside  the
Article  15  punishment,  the  applicant  would  not  be  entitled  to
supplemental promotion consideration due  to  the  referral  EPR.   In
accordance with AFI 36-2502, Table 1.1, Rule 22, airmen in the  grades
of SrA through SMSgt regain their  promotion  eligibility  only  after
receiving an EPR with an overall rating of “3” or higher that  is  not
referral and closes out before the Promotion Eligibility  Cutoff  Date
(PECD) for the next cycle, if otherwise eligible  and  recommended  by
the commander. The applicant received an overall “4” on his next  EPR;
however, he retired 31 Aug 00--prior to the first  day  of  the  month
(Jan 01)  promotions  were   incremented   in   the   cycle   (another
ineligibility factor in accordance with AFI 36-2502, Table  1.1,  Rule
1).

A complete copy of the AFPC/DPPPWB evaluation, with attachment, is  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that he was deeply  concerned
about  the  numerous  misconceptions  in  the  advisory  opinion  from
AFLSA/JAJM,  which  recommended  denial  on  his  appeal  because  his
contentions were  without  merit  and  constituted  neither  error  or
injustice.  The applicant stated that in his appeal he clearly pointed
out the error or injustice.  He did not reiterate them but pointed out
what he claims were the misconceptions in the advisory, believing that
it would shed even more light on the errors and injustice in his case.

The applicant  indicated  that  he  is  not  asking  for  supplemental
promotion consideration in the last cycle of his active  duty.  He  is
asking that the injustice be corrected all the way back  to  where  it
started.  He should not have lost the stripe and he is asking  for  it
back with his original date of rank.

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.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find  the  applicant’s  assertions  or  his
supporting  documentation  sufficiently  persuasive  to  override  the
rationale provided by AFLSA/JAJM.  The  evidence  of  record  reflects
that, after considering all matters presented by  the  applicant,  his
commander determined that he had committed one or more of the offenses
alleged, and made the decision to impose nonjudicial punishment  under
Article 15, resulting in his reduction from the grade of senior master
sergeant to master sergeant.  The  applicant  now  requests  that  his
previous rank of senior master sergeant be  reinstated.   However,  we
choose not  to  disturb  the  discretionary  judgments  of  commanding
officers, who are closer to events, absent a strong showing  of  abuse
of that authority.  Therefore, in the absence of evidence which  shows
to our satisfaction  that  the  applicant’s  substantial  rights  were
violated, he was coerced to waive any of his rights, or the  commander
who  imposed  the  nonjudicial  punishment  abused  his  discretionary
authority, we agree with the recommendation of  AFLSA/JAJM  and  adopt
their rationale as the basis for our decision that the  applicant  has
failed to sustain his burden of  establishing  that  he  has  suffered
either an error or an injustice.  Accordingly, we find  no  compelling
basis to recommend granting the relief sought in this application.

_________________________________________________________________

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 AFBCMR Docket Number 02-
01081 in Executive Session on 15 Oct 02, under the provisions  of  AFI
36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Marcia Jane Bachman, Member
      Mr. Grover L. Dunn, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 15 Jul 02.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 30 Jul 02, w/atch.
    Exhibit E.  Letter, SAF/MRBR, dated 2 Aug 02.
    Exhibit F.  Letter, applicant, dated 27 Aug 02.




                                   RICHARD A. PETERSON
                                   Panel Chair