RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2002-01815
            INDEX CODE: 126.00

            COUNSEL:  JOSEPH W. KASTL

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15, Uniform Code  of  Military
Justice (UCMJ), dated 18 April 2001 be set aside and that he  be  reinstated
into the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel indicates that every  allegation  against  the  applicant  had  been
examined in depth and amounted  to  unfounded  accusations  against  a  good
friendly  non-commissioned  officer  (NCO).   They  involve,  at  worst,   a
“cultural barrier” in which his lifestyle included compliments to the  women
who worked for him - nothing more.  Those  flowery  compliments  [e.g.,  you
look good today…you would look better  if  you  applied  some  makeup]  were
hardly the  stuff  of  “harassment.”   The  allegations  have  been  totally
refuted and he should not suffer the disgrace of a forced retirement.

In support of his appeal, the applicant provided a  summary  of  events  and
other documentation.

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

_________________________________________________________________

STATEMENT OF FACTS:

During the period in question, the applicant was serving in the Regular  Air
Force in the grade of technical sergeant.

On 18 April 2001, the applicant was notified of his  commander's  intent  to
impose nonjudicial punishment upon him for the following:

      He did, on divers occasions, between on or about 1  October  1999  and
on or about 31 January 2001, maltreat a staff sergeant, a person subject  to
his orders, by repeatedly making offensive comments of a sexual nature.

      He did, on divers occasions, between on or about 15 January  2000  and
on or about 31 January 2001,  maltreat  an  airman  first  class,  a  person
subject to his orders, by repeatedly making offensive comments of  a  sexual
nature.

After consulting with counsel, applicant waived his  right  to  a  trial  by
court-martial, requested a  personal  appearance  and  submitted  a  written
presentation.

On 25 April 2001, he was found guilty  by  his  commander  who  imposed  the
following punishment: a reduction in grade to technical sergeant with a  new
date of rank of 25 April 2001.

The applicant appealed the punishment and the appeal  authority  denied  the
applicant’s  request.   The  Article  15  was  filed  in   his   Unfavorable
Information File (UIF).

EPR profile since 1993 follows:

           PERIOD ENDING          EVALUATION OF POTENTIAL

                             1 Feb 93              5
                             1 Feb 94              5
                        1 Feb 95             5
                        1 Feb 96             5
                              1 Feb 97             5
                             26 Jan 98             5
                             26 Jan 99             5
                             26 Jan 00             5

According to the Military Personnel  Data  System  (MilPDS),  the  applicant
submitted an application for voluntary retirement on 9 May 2001,  requesting
an effective date of retirement of 1 September 2001.   His  application  for
retirement was submitted under the 7-day  option  rules  for  completion  of
Date Eligible to Return from Overseas (DEROS).   The  7-day  option  program
provides that an enlisted member who desires to retire and is  eligible  for
retirement must request a retirement date, which is the  first  day  of  the
month following DEROS.  In the applicant’s case, his DEROS  was  established
as 20 August 2001, which means he was required  to  request  a  1  September
2001 effective date of retirement.

On  19  July  2001,  SAFPC  determined  that   the   applicant   did   serve
satisfactorily in a higher grade within the  meaning  of  Section  8964  and
directed applicant’s advancement to the grade of master sergeant  (MSgt)  on
the retired list effective the date of completion of all  required  service.
Applicant will be advanced to the grade of MSgt effective 2 January 2010.

Applicant’s request for retirement to be  effective  1  September  2001  was
approved on 8 July 2001 by Special Order ---.

On  31  August  2001,  the  applicant  was  honorably  separated  under  the
provisions of AFI 36-3203 (Voluntary Retirement --  Sufficient  Service  for
Retirement).  He served 21 years, 7 months,  and  29 days  of  total  active
military service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  They indicated that the evidence  before  the
commander was a command-directed complaint  clarification  into  allegations
that the applicant made deliberate or  repeated  unwelcome  verbal  comments
and gestures of a sexual nature.

The commander was not bound by the investigator’s conclusions as to  whether
the allegation was substantiated.  By electing to resolve the allegation  in
the nonjudicial forum, the applicant placed  the  responsibility  to  decide
whether he had committed the offenses with  his  commander.   The  commander
had to weigh all the evidence  including  the  credibility  of  the  various
witnesses and make his decision.   The  commander  ultimately  resolved  the
issues whether he (the  applicant)  had  violated  Article  93  against  the
applicant, as did the commander on appeal.  What  the  applicant  considered
to be the actions of a “warm, generous individual with a  friendly  nature,”
the commander believed to be offensive comments of a sexual nature  made  to
female subordinates.

Unless it is shown that the commander’s findings were  either  arbitrary  or
capricious, they should not be  disturbed.   The  commander  considered  the
evidence, including everything the applicant presented, and determined  that
the applicant committed the offenses  and  a  reduction  in  grade  was  the
appropriate punishment.  After reviewing the evidence,  which  included  the
applicant’s  written  appeal,  the  appellate  authority   concurred.    The
applicant has provided no reason these decisions  should  be  disturbed.   A
set aside should only be granted when the evidence demonstrates an error  or
a clear injustice.  The basis of  the  applicant’s  request  for  relief  is
insufficient to warrant setting aside the Article 15 actions, and  does  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.

The evaluation, with attachment, is at Exhibit C.

AFPC/DPPRRP defers to the comments by AFLSA/JAJM regarding  the  nonjudicial
punishment.  They indicated that in accordance with Section 8961, Title  10,
United States Code, applicant was correctly retired in the  grade  of  TSgt,
which was the grade he held on the date of his retirement.  The  law,  which
allows for advancement of enlisted members of  the  Air  Force,  when  their
active service plus service on the retired list totals  30  years,  is  very
specific in its application and intent.  On 19 July  2001,  the  SAFPC  made
the determination that applicant did serve satisfactorily on active duty  in
the grade of MSgt and directed that  he  be  advanced  effective  2  January
2010.   There  are  no  other  provisions  of  law  that  would  allow   for
advancement of  enlisted  members.   All  criteria  of  the  pertinent  laws
(Section 8961 and 8964) have been  met  in  this  regard  and  no  error  or
injustices occurred in his retirement, grade  determination  or  advancement
action.

The evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 3 January 2003 copies of the evaluations were forwarded to the  applicant
for review and response within 30 days.

In an undated letter the applicant requested an extension to respond to  the
advisory opinions (Exhibit F).

On 27 February 2003, the applicant was advised that he had the original  30-
day period established to submit additional documentation  in  reference  to
his case (Exhibit G).

On 2 April 2003, the applicant provided additional documentation that 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 timely filed.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of an error or injustice warranting the  punishment  imposed  upon
him under Article 15, Uniform Code of  Military  Justice  (UCMJ),  dated  18
April 2001 be set aside and that he be reinstated into the  Air  Force.   We
took notice of the applicant’s complete submission in judging the merits  of
the case; however, the Board majority agrees with the opinions and  comments
of  the  Air  Force  office  of  primary  responsibility  and  adopts  their
rationale as the primary basis for our conclusion  that  the  applicant  has
not been the victim of an error or injustice.  By electing  to  resolve  the
sexual harassment issues in the nonjudicial forum, the applicant placed  the
responsibility to decide whether he had  committed  the  offenses  with  his
commander.  He has not shown that the commander’s findings  were  arbitrary,
capricious or should be overturned.   The  Board  majority  chooses  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 the majority’s  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, the Board  majority  concludes  that  no
basis exists to recommend  favorable  action  on  the  applicant’s  request.
Lastly, the majority notes that the applicant was appropriately  retired  in
the grade of technical sergeant and on  the  basis  of  a  determination  by
SAFPC that he  served  satisfactorily  in  the  higher  grade,  he  will  be
advanced to the grade of master sergeant on the  retired  list  effective  2
January 2010.  Therefore, the Board majority finds no basis  upon  which  to
change his current retired grade.

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:

A majority of the panel finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 17 April 2003, under the provisions of AFI 36-2603:

                 Mr. Albert F. Lowas, Jr., Panel Chair
                 Mr. Robert H. Altman, Member
                 Ms. Jean A. Reynolds, Member

By a majority vote,  the  Board  recommended  denial  pertaining  to  AFBCMR
Docket Number BC-2002-01815.  Mr. Lowas voted to change  the  punishment  to
time served and to restore the applicant’s stripe, and submitted a  Minority
Report.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 May 2002, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 31 October 2002, w/atch.
   Exhibit D.  Letter AFPC/DPPRRP, dated 19 December 2002,
                   w/atchs.
   Exhibit E.  Letter, SAF/MRBR, dated 3 January 2003.
   Exhibit F.  Letter, Applicant, undated.
   Exhibit G.  Letter, AFBCMR, dated 27 February 2003.
   Exhibit H.  Letter, Applicant, undated, w/atchs.
   Exhibit I.  Minority Report.



                                ALBERT F. LOWAS
                                Panel Chair


AFBCMR BC-2002-01815





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant had
not provided sufficient evidence of error or injustice and recommended the
case be denied.  I concur with that finding and their conclusion that
relief is not warranted.  Accordingly, I accept their recommendation that
the application be denied.

      Please advise the applicant accordingly.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency










MEMORANDUM FOR   EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
                   MILITARY RECORDS (AFBCMR)

FROM: AFBCMR
       1535 Command Drive
       EE Wing, 3rd Floor
       Andrews AFB, MD 20762-7002

SUBJECT:          , AFBCMR Docket Number BC-2002-01815

      In Executive Session on 17 April 2003, we considered the applicant’s
requests.  A majority of the Board recommended denial of the requests.  I
disagree with their recommendation.

      While the applicant’s actions may have merited nonjudicial punishment
by Article 15, I am not persuaded that the severity of the punishment,
reduction in grade from master sergeant to technical sergeant, is
warranted.  I find this punishment excessive and too harsh.  In coming to
this conclusion I note that prior to these incidents, the applicant had no
apparent history of misconduct.  Further, I can find no official
documentation that before receiving the Article 15 the applicant was ever
counseled by his senior leadership that his behavior/comments were
inappropriate and unacceptable and that he should refrain from such
actions.  Also, the Commander Directed Investigation causes me to have
serious doubts as to whether the actions for which the applicant was
punished justified a permanent reduction in grade.  In this respect, I note
the Investigating Officer indicates that there was a credibility issue with
one of the complainants and that while some of the allegations against the
applicant were substantiated, there was a reasonable probability that an
environment of inappropriate or unwelcome comments, jokes, and gestures was
an accepted practice within the applicant’s work section.  Again, while I
do not condone the behavior exhibited by the applicant, in view of the
totality of the circumstances of this case, I believe that a reasonable
punishment for the substantiated misconduct would be time served in the
reduced grade and restoration of the applicant’s strip as of the date of
the Board’s review of this case.  The applicant should be allowed to
receive retired pay in the higher grade immediately and not have to wait
until 2010.

                                       ALBERT F. LOWAS
                                       Panel Chair