RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01104
            INDEX CODES:  111.02, 131.09

            COUNSEL:  GARY R. MYERS

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His line number for promotion to the grade of senior  master  sergeant
be reinstated; and, that he be promoted to the grade of senior  master
sergeant as of such a date warranted by his line number.

His Enlisted Performance Report (EPR) rendered for the period 1 Feb 01
through 31 Mar 02 be declared void and removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The contested referral EPR was the result of a single  incident  which
allegedly occurred on 25 Jan 02, six days prior to the  closeout  date
of the report.  Because of the incident, command sought  and  obtained
approval to extend the closeout date.

There was no finding  that  he  was  guilty  of  the  alleged  assault
(grabbing another airman's breast).

There has never been an adjudication of any kind in any forum  of  his
guilt for assaulting anyone.  He was not offered  an  Article 15,  nor
were court-martial charges preferred.

The alleged victim had no interest in  pursuing  the  matter  until  a
Commander-Directed  Investigation  (CDI)  required  her  to   make   a
statement.

The individual who allegedly witnessed the incident, and who initiated
the complaint, was biased toward` him because as  First  Sergeant,  he
had participated in ordering the  individual's  son  off-base  due  to
misconduct on the son's part.

In support of his appeal, the applicant provided  a  counsel's  brief,
copies of his selection record,  a  CDI,  supportive  statements,  and
other documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently serving on active duty in the grade of
master sergeant (MSgt), having been promoted to that grade  on  1  Jun
98.  His Total Active Federal Military Service Date (TAFMSD) is 12 Mar
84.

Applicant's EPR profile since 1992 follows:

     PERIOD ENDING                            EVALUATION

      29 Mar 92  5
      29 Mar 93  5
      29 Mar 94  5
      29 Mar 95  5
      29 Mar 95  5
      29 Mar 96  5
      31 Jan 97  5
      31 Jan 98  5
      31 Jan 99  5
      31 Jan 00  5
      31 Jan 01  5
  *   31 Mar 02  4 (referral)
       1 Jan 03  5

* Contested report.

A CDI, dated 6 Feb 02, indicates that an investigation was conducted
into allegations that the  applicant  indecently  assaulted  another
airman by touching her breast.  The investigation officer determined
that on the night of 25 Jan 02, the applicant  drank  more  than  he
admitted; that he started drinking about 1630 hours that  afternoon;
and, that he drank until the ceremony ended.  He determined that  it
was more likely than not that the  applicant  was  intoxicated,  and
that it was more likely than not that his recollection of the events
of  25  Jan  02  was  impaired.   He  further  determined  that  the
allegation the applicant touched another airman in an  inappropriate
manner should be substantiated.

On 14 Feb 02, the applicant received a  Letter  of  Reprimand  (LOR)
for, on 25 Jan 02, while in a temporary duty status at the Order  of
the Sword ceremony honoring the Commander of  the  Air  Force  Space
Command, becoming drunk and disorderly and indecently assaulting  an
airman by grabbing her breast.  The commander also proposed that the
applicant be withdrawn from  his  position  as  First  Sergeant  for
unacceptable conduct.

By letter, dated 25 Apr 02, the applicant's commander requested that
a 59-day extension of the closeout date of the  EPR  closing  31 Jan
02.  He indicated that at the time his EPR would  have  closed  out,
the  applicant  was  under  investigation  for  an  alleged  assault
incident that occurred on  25  Jan  02.   A  thorough  investigation
substantiated the allegation against the applicant, who subsequently
received an LOR on 14 Feb 02, and was immediately removed  from  the
position of First Sergeant.  On 1 May 02, the  Air  Force  Personnel
Center (AFPC) approved the request for an extension of the  closeout
of the report, thereby establishing a new closeout of 31 Mar 02.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommended denial indicating that the applicant failed  to
substantiate  his  allegation  that  the  referral  EPR   was   unduly
influenced by  an  isolated  incident.   The  applicant's  attempt  at
disproving the allegation that he engaged in an indecent  assault  has
also been in vain.  It is Air Force policy that an  evaluation  report
is accurate as written  when  it  becomes  a  matter  of  record.   In
AFPC/DPPPE's view, there were no errors or  injustices  cited  in  the
referral EPR.

A complete copy of the AFPC/DPPPE evaluation is at Exhibit C.

AFPC/DPPPWB deferred to AFPC/DPPPE's recommendation.   They  indicated
that a review of the applicant's records  reveals  that  the  referral
report was not updated in the Military Personnel Data System  (MilPDS)
until  after  selects  were  run  on  11 Mar 03.   Therefore,  he  was
erroneously considered and selected for  promotion  to  the  grade  of
senior master sergeant during cycle 02E8.   He  received  a  promotion
sequence number (PSN) of 1150.00, which would have been incremented on
1 Jan 03.  However,  receipt  of  the  referral  report  automatically
canceled his promotion for cycle 02E8 in accordance with AFI  36-2502,
Table 1.1, Rule 22.  Should the Board grant the applicant's request to
void the referral report, it could direct the applicant's promotion to
the grade of senior master sergeant be reinstated; or, direct that the
applicant be provided supplemental promotion consideration,  since  he
should never have been initially considered or selected for  promotion
during cycle 02E8.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations was forwarded to  applicant  on  3
Jul 03 for review and response (Exhibit E).  On  15  Aug  03,  counsel
requested  that  the  applicant's  appeal  be  temporarily   withdrawn
(Exhibit F).

By letter, dated 29 Sep 03, counsel provided a  detailed  response  to
the advisory opinions from the applicant who indicated that  he  hopes
that the Board will see  the  unfair  prolonged  actions  and  several
contradictions that occurred in his case, as well as the severe stress
and punishment that he and his family have endured.

Counsel's response, with the attached response from the applicant,  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  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
sufficiently persuasive to convince us that any corrective  action  is
warranted.  The evidence of record indicates that a CDI was  conducted
into allegations  that  the  applicant  indecently  assaulted  another
airman by touching her breast.  The investigation  officer  determined
that the applicant drank more than  he  admitted,  that  it  was  more
likely than not that he was intoxicated and that his  recollection  of
events was impaired, and, that the allegation  the  applicant  touched
another airman in an inappropriate manner should be substantiated.  As
a result,  the  applicant  was  given  an  LOR  for  being  drunk  and
disorderly and indecently assaulting an airman by grabbing her breast.
  He  was  also  removed  from  his  duties  as  First  Sergeant   for
demonstrating poor judgment and unacceptable conduct.  He subsequently
received a referral EPR which canceled his selection for promotion  to
the grade of senior master sergeant.  After a thorough review  of  all
the  facts  and  circumstances  of  this  case,  we  agree  with   the
commander’s assessment that  as  a  First  Sergeant  and  leader,  the
applicant had the responsibility to set the standard of behavior, that
he failed in that duty, and, that although the  alleged  incident  may
have  been  out  of  character  for  him,  his  conduct  was   totally
unacceptable.  Even the applicant admitted that  he  was  supposed  to
lead by example and that expectations of him as a First Sergeant  were
very high.  No evidence has been presented  which  has  shown  to  our
satisfaction that the information used as a  basis  for  the  LOR  was
erroneous, there was an abuse of discretionary authority, or that  the
contested report was technically flawed or an inaccurate depiction  of
his performance  at  the  time  it  was  rendered.   In  view  of  the
foregoing, and in the absence of sufficient evidence to the  contrary,
we conclude that the applicant has failed to  sustain  his  burden  of
establishing that he has suffered either an  error  or  an  injustice.
Accordingly, the we find no compelling 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   issues   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 AFBCMR Docket Number BC-
2003-01104 in Executive Session on 21 Oct 03 and 4 Nov 03,  under  the
provisions of AFI 36-2603:

      Ms. Olga M. Crerar, Panel Chair
      Mr. Roscoe Hinton, Member
      Ms. Kathleen F. Graham, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPE, dated 3 Jun 03.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 16 Jun 03.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.
    Exhibit F.  Facsimile, counsel, dated 15 Aug 03.
    Exhibit G.  Letter, AFBCMR, dated 21 Aug 03.
    Exhibit H.  Letter, counsel, dated 29 Sep 03, w/atchs.




                                   OLGA M. CRERAR
                                   Panel Chair