RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-03039
            INDEX CODE:      126.00, 111.01,
                 131.09, 100.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________


APPLICANT REQUESTS THAT:

1.  The 28 Sep 99 Article 15, Uniform Code of Military Justice (UCMJ),
be set aside.

2.  His Officer Performance Report (OPR), rendered for the  period  21
Mar 99 through 17 Dec 99,  be  declared  void  and  removed  from  his
records.

3.  The duty title of “Commander, HQ Squadron Section” be deleted from
his duty history and the Air Force personnel system.

4.  He receive direct promotion to the grade  of  lieutenant  colonel,
with in-resident Senior Service School (SSS) candidacy.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The charges in his Article 15 are not substantiated by facts.  Removal
of the Article 15 will invalidate the subsequent referral  OPR,  which
is based on the charges in his Article 15.  The short period for which
he held the duty title of “Commander, HQ Squadron Section” implies  he
was fired.  Due to the wrongful removal  from  command,  he  lost  the
promotion potential opportunity as a commander,  the  opportunity  for
communications squadron command and selection for in-resident ISS.

In support of his request, applicant submits a personal statement  and
additional  documents  associated  with  the  issues  cited   in   his
contentions.  The applicant’s complete submission,  with  attachments,
is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

On 3 May 86, the applicant was appointed a second lieutenant,  Reserve
of the Air Force, and was voluntarily ordered to extended active  duty
on 11 Oct 86.  He was integrated into the Regular Air Force on 29  Jun
93 and  has  been  progressively  promoted  to  the  grade  of  major,
effective and with a date of rank of 1 Apr 98.

On 15 Sep 99, applicant was notified  of  his  commander's  intent  to
impose nonjudicial punishment on him  under  Article  15,  UCMJ.   The
misconduct applicant had allegedly committed was for  violation  of  a
lawful general order, maltreatment, conduct unbecoming an officer  and
gentleman and three specifications of fraternization, in violation  of
Articles 92, 93, 133 and 134, UCMJ.  The applicant consulted a lawyer,
waived his  right  to  demand  trial  by  court-martial  and  accepted
nonjudicial punishment.  He submitted a written presentation and  made
a personal appearance before his  commander.   After  considering  all
matters presented to him, the commander found that the  applicant  did
commit one or more of the offenses alleged, with the exception of  the
maltreatment  specification  (Article  93).   The  commander   imposed
punishment of forfeiture of $2,035.00 pay per month for two months and
a reprimand.  The applicant appealed the nonjudicial punishment on  15
Oct 99.  On 14 Dec 99, the appellate authority denied the  applicant’s
appeal and determined that the record of nonjudicial punishment  would
be filed in the applicant’s selection record.

Information extracted from the Personnel Data System reveals that  the
applicant held the duty title of commander, HQ Squadron  Section,  ---
AFB, --, from 16 Apr through 17 Dec 99.

The following is a resume of the applicant’s OPR ratings subsequent to
his promotion to the grade of major:

            Period Ending    Evaluation

              20 Mar 99      Meets Standards
            * 17 Dec 99      Does Not Meet Standards
            #  6 Jun 00      Meets Standards
            ## 6 Jun 01      Meets Standards
            ###6 Jun 02      Meets Standards

*  Contested Referral OPR

# Top report at the time he was considered and nonselected  below-the-
promotion zone (BPZ) for promotion to lieutenant colonel by the  CY00A
(P0500A) Central Lieutenant Colonel Board, which convened  on  28  Nov
00.

## Top report at the time he was considered  and  nonselected  in-the-
promotion zone (IPZ) for promotion to lieutenant colonel by the  CY01B
(P0501B) Central Lieutenant Colonel Board, which convened on 5 Nov 01.

### Top report at the time he was considered and nonselected above-the-
promotion zone (APZ) for promotion to lieutenant colonel by the  CY02B
(P0502B) Central Lieutenant Colonel Board, which  convened  on  12 Nov
02.
_________________________________________________________________

AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application be denied.  JAJM indicated  that
the applicant states his e-mails about a party at his  residence  sent
between 14 Jun and 30 Jun 99, using the government e-mail system, were
official government communications.  JAJM stated  that  the  applicant
does not present any evidence that show  his  emails  were  determined
necessary in the interest of the Federal government.  Even if  the  e-
mails were for the --- AFB basketball team’s end of season party,  the
applicant fails to show the official  nature  of  the  messages.   The
messages contained profanity, encouraged drinking in  the  office  and
asked for secrecy  about  the  party.   Contrary  to  the  applicant’s
current contention, in his 24 Sep 99 response to the Article  15,  the
applicant admitted that he used the e-mail  system  for  personal  use
without permission as required by AFI 33-119 and not official military
business.  JAJM  agrees  with  the  applicant’s  conclusion  that  his
contact with the female officer was conduct unbecoming and that  there
is  no  injustice  in  so  characterizing  it.   It  was  within   the
commander’s discretion to include that conduct as an allegation in the
nonjudicial punishment proceedings.  As the  decision  authority,  the
commander  reviewed   the   evidence,   considered   the   applicant’s
submissions and determined that Article 15 was appropriate  action  to
take for the applicant’s conduct.  The applicant presents no new facts
or evidence that justify withdrawal of  the  action.   JAJM  indicates
that 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.  By electing to  resolve
the allegation in the nonjudicial  forum,  the  applicant  vested  his
commander with the responsibility to decide whether he  had  committed
the offenses.  In JAJM’s opinion, there was  sufficient  evidence  for
the commander to determine  the  offenses  had  been  committed.   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 are neither  arbitrary  nor  capricious  and  should  not  be
disturbed.  JAJM stated that a set aside should only be  granted  when
the  evidence  demonstrates  an  error  or  a  clear  injustice.   The
applicant has provided no evidence  of  a  clear  error  or  injustice
related to the nonjudicial punishment action.  A complete copy of this
evaluation is appended at Exhibit C.


HQ AFPC/DPASC states that, if and only if, the applicant’s request  is
approved, they would  recommend  removal  of  the  job  entry  titled,
“Commander, HQ Squadron Section” from his duty history  and  personnel
records.  A complete copy of this evaluation is appended at Exhibit D.


HQ AFPC/DPAP indicated that a member should only receive candidacy  if
it is believed he is among the top percentage of officers in order  of
merit on the promotion list.  DPAP stated that  if  the  applicant  is
selected for promotion, then he should be considered for SSS candidacy
consistent  with  the  criteria  above.   A  complete  copy  of   this
evaluation is appended at Exhibit E.


HQ AFPC/DPPPE recommends the applicant’s request to have the contested
referral OPR voided be denied.  DPPPE states that the contested report
does not mention the Article 15.  The report was referred because  the
applicant  was  relieved  of  his   command   based   on   allegations
substantiated through an investigation.  The applicant did not provide
a copy of the summary of investigation to show  the  allegations  were
not substantiated or documentation to show he was erroneously relieved
of his command.  A complete copy of this  evaluation  is  appended  at
Exhibit F.


HQ AFPC/DPPPO recommends the applicant’s request for direct  promotion
be  denied.   DPPPO  concurs  with  the  findings  in  the  Air  Force
advisories indicated above.  DPPPO stated that both Congress  and  DoD
have made clear  their  intent  that  when  errors  are  perceived  to
ultimately affect promotion, they should  be  addressed  and  resolved
through the use of Special Selection Boards (SSBs).  Without access to
all the competing records and appreciation  of  their  content,  DPPPO
continues to believe the practice of sending  cases  to  SSBs  is  the
fairest and best practice.  In the past, and hopefully in the  future,
the  AFBCMR  will  consider  direct  promotion  only   in   the   most
extraordinary circumstances where SSB consideration has been deemed to
be totally  unworkable.   The  applicant’s  record  clearly  does  not
warrant direct promotion.  A  complete  copy  of  this  evaluation  is
appended at Exhibit G.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and indicated that it  is
his intent to show that the facts from the case does not  support  the
decision made.  There are “NO NEW FACTS” - just more/new  evidence  to
show the facts already presented do not  and  never  did  support  the
conclusions and clearly evidence of pre-judgment and biased  injustice
exists.  All requests to correct the injustices done to him are  based
on resolution of the charges within the Article 15 and, therefore, all
the advisory opinions for OPR removal, direct promotion, resident  SSS
candidacy  and  duty  history  correction  are  conditional  on  those
injustices  being  corrected.   Refer  to  the  applicant’s   rebuttal
statement in which he addresses the advisory opinions on the merits of
the comments contained within.

The applicant’s complete submission, with attachments, is  at  Exhibit
I.
_________________________________________________________________

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  thoroughly  and  carefully
reviewed the applicant’s complete submission in judging the merits  of
his case.  However,  we  agree  with  the  comments  and  opinions  of
AFLSA/JAJM and adopt their rationale as the basis for  our  conclusion
that the applicant has not been the victim of an error  or  injustice.
We are not convinced by the applicant’s submission  that  the  Article
15, UCMJ, action was unjust or unwarranted for the offenses committed.
 When initiating the Article 15 action and  imposing  the  nonjudicial
punishment, we believe the commander acted on the basis of information
he determined to  be  reliable.   We  are  of  the  opinion  that  the
applicant’s  commander,  being  aware  of  all  of  the  circumstances
involved, was in the best position to determine whether the  applicant
should receive the Article 15 and what resultant punishment he  should
render.  Although the applicant presents detailed  arguments,  he  has
failed to provide compelling evidence to show error  or  injustice  in
the initiation of the Article 15 action, that the commander abused his
discretionary authority when he imposed  the  nonjudicial  punishment,
that the punishment was too harsh, or that he  was  not  afforded  all
rights granted by statute and regulation.  Since  the  respective  Air
Force office (AFLSA/JAJM) has sufficiently addressed  the  applicant’s
contentions, we see no reason  to  further  expand  on  these  issues.
Regarding the request to void the OPR closing 17 Dec 99,  we  are  not
convinced, by the applicant’s submission, that the contested report is
an inaccurate or unfair assessment of  his  overall  duty  performance
during the contested rating period.  We found  no  evidence  that  the
contested report was prepared contrary to the  governing  instruction.
It appears that the contested OPR is based on the reasons cited in the
Article 15 action.  Inasmuch as the applicant has failed to refute the
Article 15 action, no basis exists to recommend  favorable  action  on
the applicant’s request for removal of  the  contested  OPR  and  duty
title, or direct promotion to the grade of lieutenant colonel, with in-
resident Senior Service School candidacy.  In view  of  the  foregoing
and in the absence of persuasive evidence to the contrary, we find  no
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  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 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 10 Mar 03, under the provisions of AFI 36-2603:

                  Mr. David W. Mulgrew, Panel Chair
                  Mr. Laurence M. Groner, Member
                  Mr. Mike Novel, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number 01-03039.

   Exhibit A.  DD Form 149, dated 15 Oct 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 4 Feb 02.
   Exhibit D.  Letter, HQ AFPC/DPASC, dated 4 Mar 02.
   Exhibit E.  Letter, HQ AFPC/DPAP, dated 12 Mar 02.
   Exhibit F.  Letter, HQ AFPC/DPPPE, dated 4 Jun 02.
   Exhibit G.  Letter, HQ AFPC/DPPPO, dated 4 Jun 02.
   Exhibit H.  Letter, SAF/MRBR, dated 14 Jun 02.
   Exhibit I.  Letter from Applicant, dated 8 Oct 02, w/atchs.




                                   DAVID W. MULGREW
                                   Panel Chair