RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


    IN THE MATTER OF:        DOCKET NUMBER:  BC-2002-02831
                                  INDEX CODE:  111.00, 131.00

                                  COUNSEL:

                                  HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Officer Performance Report (OPR)  rendered  for  the  period
3 March 1998 through 2 March 1999, be declared void and removed from
his record.

2.  All  unfavorable  records  in  either  his   Official   Military
Performance Fiche (OMPF), Officer Selection  Record  (OSR),  or  any
other official record maintained by the Department of the Air  Force
be removed from his records; and he be afforded  such  other  and/or
further relief as may be  deemed  necessary  and/or  appropriate  in
order to provide him full and complete  relief  including,  but  not
limited to, payment of any money due as a result of  the  correction
of his military records.

3.  He be considered  for  promotion  to  the  grade  of  lieutenant
colonel by Special Selection Board (SSB) for the Calendar Year 2002B
(CY02B) Central Lieutenant Colonel Selection Board,  which  convened
on 12 November 2002.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied the opportunity to adequately respond to a  letter  of
reprimand (LOR) because he did not receive an unredacted copy of the
commander directed investigation.  The LOR and OPR are erroneous and
should be removed.

In support of  the  appeal,  applicant  submits  a  brief  from  his
Counsel, a personal statement in reference to the referral OPR, an e-
mail and five letters in reference to his FOIA request, and a letter
to him with copy of the  FOIA  records  he  requested.   Applicant's
complete submission, with attachments, is at Exhibit A.

_________________________________________________________________


STATEMENT OF FACTS:

The applicant is a Regular Air Force officer serving in the grade of
major, having been promoted to that grade, effective and with a date
of rank of 1 October 1998.  His Total  Active  Federal  Commissioned
Service Date is  5  November  1987  and  his  Total  Active  Federal
Military Service Date is 27 December  1985.   He  currently  has  an
established date of separation of 31 December 2005.

The applicant was considered and not selected for promotion  to  the
grade  of  lieutenant  colonel  by  the  CY02B  (12  November  2002)
Lieutenant Colonel Central Selection Board.

OPR profile since 1991 follows:

           PERIOD ENDING        EVALUATION OF POTENTIAL

                        15 May 91       Meets Standards (MS)
                       25 Apr 92             MS
                       25 Apr 93             MS
                       30 Apr  93         Education/Training  Report
(TR)
                       29 Jun 94             TR
                       28 Feb 95             MS
                       29 Feb 96             MS
                       28 Feb 97             MS
                        2 Mar 98             MS
                       *2 Mar 99        Does Not Meet Standards
                                         (referral)
                        2 Mar 00             MS
                        2 Mar 01             MS
                        2 Mar 02             MS
                        2 Mar 03             MS

* Contested report

Pursuant to this appeal, an attempt was made to obtain a copy of any
unfavorable information in the applicant’s  file.   Applicant’s  MPF
indicated that if a UIF existed, the disposition  date  had  expired
and the file destroyed.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSFM states  that  the  applicant  does  not  deny  committing
adultery.  He only denied that the adulterous relationship lasted at
least three weeks.  In  his  own  words:   “The  woman  and  I  were
intimate on only one occasion rather than on a continuous basis  for
three weeks.”  In his memo to  HQ  AETC/LGC,  dated  4  March  1999,
Subject:  Referral Officer Performance Report, the applicant states,
“I feel an LOR may have been too harsh an action."  That policy,  in
brief, is that adultery and  fraternization  should  be  dealt  with
using the lowest level form  of  appropriate  discipline.”   If  the
applicant did not commit adultery, they question  why  he  discusses
the appropriate punishment instead of denying the charges.  In fact,
it is within the commander’s discretion to  determine  what  is  the
appropriate form of punishment.

As for the applicant contending that he was denied  the  opportunity
to adequately respond to an  LOR  because  he  was  not  provided  a
complete, unredacted copy of the commander directed investigation is
untrue.   It  is  noted  that  the  applicant  did  not  request  an
unredacted copy of the investigation  until  after  his  performance
report was referred to him on 4 March 1999, not when he received the
LOR on 6 November 1998.   The  first  request  for  a  copy  of  the
unredacted copy of the investigation is dated 17 September 1999, six
months after receiving the LOR.

It is also  noted  that  the  use  of  the  LOR  by  commanders  and
supervisors  is   an   exercise   of   supervisory   authority   and
responsibility.  The LOR is used to reprove,  correct  and  instruct
subordinates  who  depart  from  acceptable  norms  of  conduct   or
behavior, on or off duty, and helps maintain established  Air  Force
standards of conduct or behavior.  A reprimand is more severe than a
counseling or admonition and indicates a stronger degree of official
censure.  An individual has three duty days upon receipt  to  submit
rebuttal documents for consideration by  the  initiator.   LORs  are
mandatory for file in the UIF  for  officer  personnel.   Therefore,
they believe  the  denial  is  appropriate.   In  reference  to  the
applicant contending he was not allowed to properly rebut  the  LOR;
there is no requirement for a commander to provide a  subordinate  a
complete, unredacted copy of an investigation.

A complete copy of the evaluation is attached at Exhibit C.

AFPC/DPPPE states  that  the  applicant’s  rating  chain  had  ample
evidence to issue an  LOR  for  his  involvement  in  an  adulterous
affair.  As such, there are no errors or  injustices  cited  in  his
2 March 1999 referral OPR.  The reference to the  LOR  given  during
the reporting period of the report was appropriate and the applicant
was given the opportunity to respond to the  referral  comment.   In
DPPPE’s  opinion,  the  applicant’s  contentions  have  been  poorly
supported and are inaccurate.  Therefore, they recommend  denial  of
the applicant’s request.

A complete copy of their evaluation is attached at Exhibit D.

AFPC/DPPPO states that they have nothing further to add.  Since  the
advisories from DPPPE and DPSFM recommend denial, SSB  consideration
is not warranted.

A complete copy of their evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 1 July 2003, the applicant requested his case be administratively
closed.  By letter dated 13 August 2003, counsel’s rebuttal reopened
the case.

Counsel for the applicant states that the  three  advisory  opinions
all say essentially the same thing.

Counsel indicated that all three  advisory  opinions  blindly  state
commanders have a lot of discretion in these matters, and  they  can
impose an LOR.  None of this is disputed.  However, if a commander’s
ability to impose an LOR were unfettered, this Board would not  need
to exist.  Congress created this Board for exactly this purpose.  To
ensure that Commanders did not  have  absolute  discretion,  and  to
ensure that there was some civilian oversight of the military.   For
the advisory opinions to argue otherwise is disingenuous.

The Board should know that as soon as  the  applicant  was  told  to
cease contact with the woman in  question,  he  did.   He  has  done
everything he could to make this situation better, and  his  efforts
have consistently backfired.  This investigation  was  closed  until
the woman’s husband complained to the applicant’s chain of  command.
This was months after the no  contact  order,  and  long  after  all
contact had ceased.  It is simply wrong to continue  to  punish  him
after this period of time.

As previously pointed out, the allegations in this case should never
have arisen to the level of an LOR.  This was a brief, inappropriate
relationship.  The parties have had no contact  since  then.   While
the advisory opinions all  state  that  an  LOR  is  an  appropriate
corrective tool, the reality of the military is that if the  LOR  is
not removed, the applicant will not make 0-5, and his career will be
over.  Furthermore, he will always  have  this  black  mark  on  his
record for something he did not do.  This is akin to killing an  ant
with a sledgehammer.

Counsel asserts that there other  issues  that  warrant  discussion.
The advisory opinion from DPPPO is signed by the same individual who
issued the LOR in this case.  It should  be  no  surprise  that  the
officer now contends that the investigation was improper and the LOR
should  remain  in  the  record.   This  officer  is  anything   but
impartial.   The  investigating  officer  in  this  case   was   the
applicant’s former supervisor.  Again, one must  question  how  this
officer could possibly be impartial.

For these reasons, and those previously stated, counsel believes the
petition should be granted.

Counsel's complete response is attached at Exhibit G.

_________________________________________________________________

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  alleges  his
rights were violated with respect to the issuance of the LOR and, as
a result, that the contested OPR is erroneous as well.  The evidence
pertaining to the events is limited to the documents provided by the
applicant.  We note that this situation is attributable to the  fact
that the applicant delayed in  filing  an  appeal  concerning  these
matters and it appears the investigative  file,  LOR  and  UIF  were
destroyed on time in accordance with the governing regulations.   In
cases of this nature, in the absence of evidence  to  the  contrary,
the actions of Air Force officials are presumed to be proper and  in
accordance with the governing regulations.  Furthermore, we are  not
inclined  to  disturb  the  discretionary  judgments   of   superior
officers, who are closer to events,  without  a  strong  showing  of
abuse of that authority.  In the instant case, we are not  persuaded
that  either  condition  has  been  met.   The  available   evidence
indicates that the applicant received  an  LOR  for  adultery.   The
applicant  alleges  that  the  charge  is  erroneous,  that  he  was
“intimate” on one occasion, and that he  was  denied  access  to  an
unredacted copy of the investigative report  in  order  to  properly
defend himself.  However, none of these statements  and  allegations
is supported by the available record.  Therefore, we are  unable  to
determine affirmatively whether his asserted rights  were  violated.
The applicant indicates that the investigating officer was a  former
supervisor and his impartiality was suspect.   Again,  without  some
sort of corroborative evidence, we are not  prepared  to  find  this
officer was  unable  to  fairly  carry  out  his  appointed  duties.
Finally, while it does appear that the signer of the DPPPO  advisory
also issued  the  LOR  to  the  applicant,  in  view  of  his  prior
involvement in the case, it would seem  that  prudence  should  have
dictated he recuse himself in this matter.  Nevertheless, we do  not
find the case before us is  fatally  flawed  as  a  result  of  this
circumstance because, on the basis of  the  evidence  provided,  our
decision would be the same.  Accordingly, in view of the  above  and
in the absence of corroborative documentary evidence indicating that
the applicant’s substantial rights were violated, that his superiors
abused their discretionary authority or that the LOR  and  contested
OPR were technically flawed, we have no basis on which to  favorably
consider the applicant’s request.

_________________________________________________________________

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,  BC-
2002-02831, in Executive Session  on  16  October  2003,  under  the
provisions of AFI 36-2603:

                       Ms. Charlene M. Bradley, Panel Chair
                       Ms. Martha J. Evans, Member
                       Ms. Renee M. Collier, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 14 Aug 02, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPSFM, dated 17 Mar 03.
      Exhibit D. Letter, AFPC/DPPPE, dated 6 May 03.
      Exhibit E. Letter, AFPC/DPPPO, dated 3 Jun 03.
      Exhibit F. Letter, SAF/MRBR, dated 9 Jun 03.
      Exhibit G. Applicant’s Response, dated 13 Aug 03.




                             CHARLENE M. BRADLEY
                             Panel Chair