RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  02-02770
            INDEX CODE 111.01  111.05
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The referral Officer Performance Report (OPR) for the period 23 Nov 99
through 15 Jun 00 be voided.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The markings in Section V do not reflect the performance  feedback  he
received. The 14 Apr 00 performance feedback session was not conducted
face-to-face. He was not  allowed  access  to  on-going  investigation
details to allow formal address in his rebuttal to the  referral  OPR.
The OPR references information based on an ongoing investigation,  not
fact.  These actions occurred prior to Article 32 proceedings and  did
not occur during the  rating  period.  He  was  never  found  to  have
committed offenses referenced in Section VI.

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

_________________________________________________________________

STATEMENT OF FACTS:

Repeated efforts to obtain the  Article  32  Report  of  Investigation
(ROI) were unsuccessful. HQ USAF/JAG  confirmed  that  base  documents
were either lost or destroyed when McClellan  AFB  closed.  Therefore,
the following information is based on official documents  provided  by
the applicant, his military  personnel  records,  and  the  Air  Force
Office of Special Investigations (AFOSI) ROI dated 15 Aug 00:

The applicant entered extended  active  duty  on  22  Mar  84.  He  is
currently serving in the grade of major with a date of rank (DOR) of 1
Feb 96 and is assigned as a plans branch chief at Langley AFB, VA.

The applicant’s OPRs from 26 Dec 87 through 20 Aug 01 reflect  he  met
all performance standards, with the exception of the referral OPR  for
the period 23 Nov 99 through 15 Jun 2000 and  which  is  discussed  in
further detail below.

The  applicant  was  considered  below-the-promotion-zone  (BPZ)   for
lieutenant colonel (LTC) by the Calendar Year 1998B (CY98B) and  CY99A
LTC Selection Boards, but was not selected.

During the period in question, the applicant was the  mission  systems
flight commander assigned  to  the  77th  Communications  Squadron  at
McClellan AFB, CA from 12 Nov 99 until 18 May 00. His rater  typically
was the 77th Communications Squadron Commander. However, when  he  was
removed from his position as mission systems flight commander, he  was
made special assistant to the 77th Support Group  commander,  who  was
the rater for the contested OPR.

According  to  statements  made  by  the  officer  who  was  the  77th
Communications Squadron Commander during 31 Mar 97  –  1  Jul  98,  he
ordered an internal (social actions and security forces) investigation
based on allegations that the applicant made an insensitive comment to
a formerly-pregnant female airman and had patted the rump  of  another
female airman.  The former squadron commander indicated  he  found  no
evidence of sexual harassment or impropriety and  viewed  this  as  an
isolated incident. He indicated he gave  the  applicant  a  Letter  of
Counseling (LOC) as a warning.

On  9  Dec  99,  the  77th  Support  Group  Commander   appointed   an
investigating officer (IO) to conduct a Commander’s Investigation into
allegations of the applicant’s  improper  conduct  and  unprofessional
relationships while attending an off-base party at  the  home  of  two
enlisted personnel. The investigation was conducted from 9  to  29 Dec
99. The IO concluded that the  applicant’s  physical  contact  with  a
female airman was not sexual  in  nature.  Two  underage  airmen  were
drinking and others in attendance were aware of underage drinking  and
that the applicant took no action. The applicant claimed  he  did  not
know the punch they were drinking contained alcohol.

On 11 Jan 00, the group commander  gave  the  applicant  a  Letter  of
Reprimand (LOR) for unprofessional conduct, poor judgment and allowing
two under-age airmen in his Flight to  drink  alcohol  during  a  non-
official party on 20 Aug 99, and that he subsequently  established  an
unprofessional relationship with a female airman. The group  commander
also referred to statements the applicant made  to  the  investigating
officer. The applicant provided a rebuttal on 18 Jan 00. The  LOR  was
filed in his Unfavorable Information File (UIF). However, on 9 Feb 00,
the group commander decided not to file the  LOR  in  the  applicant’s
Officer Selection Record (OSR).

On 6 Mar 00, the applicant was advised that he had been  selected  for
LTC in-the-promotion-zone (IPZ) by the CY99B Board, which had convened
on  30  Nov  99.  The  PRF  for  that  board  reflected   an   overall
recommendation of “Promote.”  His promotion was to become effective on
1 Jul 00.

On 14 Apr 00, AF Form 724A, “Performance Feedback Worksheet,”  on  the
applicant was signed by the rater (77th Support Group  Commander).  [A
copy provided by the applicant is at Exhibits A and E.]

On 9 May 00, an AFOSI investigation was initiated based on allegations
from an airman first class (A1C) that she had observed  the  applicant
and her friend, another A1C, engaged in sexual intercourse sometime in
Aug 99. Further investigation revealed that a  female  staff  sergeant
(SSgt) and the applicant had  engaged  in  consensual  intercourse  on
three separate occasions, and that the A1C, the applicant,  and  other
witnesses had previously withheld this information during an  internal
inquiry conducted by the 77th Support Group vice commander in Dec  99.
The A1C’s statements were not  forthcoming,  sometimes  contradictory,
and she  denied  consensual  sexual  contact.  The  SSgt  admitted  to
consensual sexual intercourse with the applicant. Witnesses  indicated
the applicant  frequently  visited  the  dormitories  at  late  hours,
including bringing alcohol and  entering  the  rooms,  and  frequently
socialized and drank heavily  at  dormitory  parties  and  other  non-
official events. There were also  some  indications  and  implications
that the applicant may have asked or implied that certain  individuals
should not discuss rumors or reveal information.

On 11 May 00, the group commander removed the applicant  from  command
and issued a no-contact order regarding anyone currently or previously
assigned to the 77th Communications Squadron.

On 12 May 00, the rater informed the applicant that his  promotion  to
lieutenant colonel was delayed pending  the  outcome  of  the  ongoing
AFOSI   investigation   regarding   allegations   of   fraternization,
unprofessional conduct, providing alcohol to  minors,  obstruction  of
justice, and  making  false  official  statements.   The  letter  also
indicated the rater’s understanding that the applicant had a  copy  of
the investigation that took place during 9-29 Dec  99  involving  some
similar issues. The rater stated he would provide the applicant a copy
of the investigation if the applicant  had  misplaced  his  copy.  The
applicant provided a rebuttal on 18 May 00

On 18 May 00, the applicant was  removed  from  his  flight  commander
position and assigned to the 77th Support Group commander  as  special
assistant.

On 22 Jun 00,  the  contested  OPR  was  referred  to  the  applicant.
Section V, Performance Factors, reflects he did not meet standards  in
Leadership Skills, Professional Qualities and Judgment and  Decisions.
The rater remarked that the applicant had been relieved  from  command
as  a  result  of  information  indicating  he  made  false   official
statements during a fraternization investigation (of which he was  the
subject), had failed to enforce underage  airman  drinking  standards,
and had surrendered his  integrity.  The  rater  also  indicated  that
performance feedback was accomplished on  14  Apr  00.  The  applicant
provided a rebuttal dated 30 Jun 00, claiming in part that he had  not
seen the final investigative report nor  been  provided  any  evidence
from this investigation.  The  additional  rater  (who  was  also  the
reviewer) considered the applicant’s  rebuttal  but  agreed  with  the
rater.

On 11 Aug 00, the AFOSI concluded its investigation.   The  applicant,
on advice of his ADC, had not provided a statement.

Pursuant to a request by the applicant’s ADC, the wing commander cited
a number of the applicant’s contributions in a 16 Aug 00 statement but
added that he was the official responsible for review of  the  Article
32 investigation and supported the applicant’s  removal  from  command
due to serious allegations.

An Article 32 investigation apparently was conducted/completed  around
this timeframe; however, as indicated above, the ROI is not available.

On 22 Aug 00, the applicant was advised that his promotion to LTC  was
delayed for six months until 1 Jan 01.

On 24 Oct 00, the vice commander of Ogden Air Logistics Center  served
the applicant with an Article 15  for  the  following  offenses:   (1)
acting unprofessionally on or about 1 and  31  Aug  99  by  pulling  a
female airman’s shirt over her head at a party without her consent and
participating in party games  with  sexual  connotations;  (2)  acting
unprofessionally during an intramural football game on 22  Oct  99  by
shouting obscenities at an female senior airman and grabbing her  arm;
(3) fraternizing with a SSgt from about 1 Aug to 30 Sep 99 by engaging
in sexual intercourse; and (4) fraternizing with enlisted  members  of
his unit from about 1 Jun to 10 Nov  99  by  supplying  and  consuming
alcohol with them, socializing with them in the dormitories and  other
not-official social gatherings. Punishment was forfeiture of $2,379.00
in pay for two months and a  reprimand.  The  applicant’s  appeal  was
denied and the Article 15 was filed in his UIF and OSR.

As a result of the Article 15,  the  applicant’s  commander  initiated
removal action from the  CY99B  selectee  list.  The  case  was  found
legally sufficient on 22  May  01  by  the  General  Counsel  for  the
Secretary of the Air Force (SAF).  On 11 Jun 01, the SAF directed  the
applicant’s name be removed from the promotion list.

The applicant was considered but not selected by the CY01B  and  CY02B
boards. The PRFs had overall recommendations of “Do Not  Promote”  and
“Promote” respectively.

On 31 Jul 02, the Evaluation Reports  Appeal  board  (ERAB)  denied  a
similar appeal submitted by the applicant.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPEP  asserts  that  regardless  of  how  the  feedback  was
communicated to the applicant, it is not grounds to void the OPR.  Per
the governing directive, feedback  issues  will  not,  of  themselves,
invalidate any subsequent OPR.  The AFI warns raters  to  be  cautious
when using information from an ongoing  investigation,  but  does  not
prohibit  it.   The  rater  must  make  the  judgment  as  to  whether
information gathered in the investigation up to that point is reliable
and  supported.  The  applicant  acknowledges  that  the   rater   and
additional rater had access to the investigation details necessary  to
make a determination of reliability. Further, an event which  occurred
before the rating period cannot be used unless it  adds  significantly
to the evaluation report and has not  been  previously  reported.  The
conduct leading  to  the  referral  statements  certainly  meets  this
criterion.  Although the event itself may have occurred in a  previous
reporting  period,  discovery  of  the  event  and  the  investigation
occurred during the rating period.  The  applicant  has  not  provided
convincing evidence to show the  evaluation  is  either  erroneous  or
unjust. Denial is recommended.

A complete copy of the evaluation, with attachment, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends no formal feedback took place,  nor  was  there
any counseling or formal Record of Individual Counseling.   He  claims
he was not allowed access to the investigative results as of  the  OPR
closeout. Thus,  he  was  unable  to  submit  any  rebuttal.  All  the
derogatory information included in the contested report was  based  on
an on-going investigation. The alleged behavior occurred in a previous
reporting period when he was not in a leadership position. However, he
was never found guilty of making false official statements or  failing
to enforce underage drinking standards.

The applicant’s complete rebuttal, with 13 attachments, is at  Exhibit
E.

_________________________________________________________________

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. After a thorough  review  of  the
evidence of record and applicant’s submission, we  are  not  persuaded
that relief is warranted. The applicant’s contentions are duly  noted;
however, we do not find these uncorroborated  assertions,  in  and  by
themselves, sufficiently persuasive to override the rationale provided
by the Air Force. The applicant’s submission has not demonstrated that
the OPR, and the actions taken against him, are erroneous, unjust,  or
unconfirmed  by  the  available  evidence.  Feedback  issues  do   not
inherently invalidate an OPR, and the applicant has not shown that the
basis  of  the  rating  chain’s  judgment  was  not   supportable   or
unreliable. We therefore agree with the  recommendations  of  the  Air
Force and adopt the rationale expressed as the basis for our  decision
that the applicant has failed to sustain his burden of having suffered
either an error or an injustice. In  view  of  the  above  and  absent
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought.

_________________________________________________________________

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 7 January 2003 under the provisions  of  AFI  36-
2603:

                 Ms. Peggy E. Gordon, Panel Chair
                 Mrs. Diane Arnold, Member
                 Mr. Billy C. Baxter, Member

The following documentary evidence relating to AFBCMR Docket Number 02-
02770 was considered:

   Exhibit A.  DD Form 149, dated 26 Aug 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPEP, dated 24 Sep 02, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 4 Oct 02.
   Exhibit E.  Letter, Applicant, dated 31 Oct 02, w/atchs.



                                   PEGGY E. GORDON
                                   Panel Chair