RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01746
            INDEX CODE:  131.00
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted to the grade of lieutenant colonel effective 1 Jul 00.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons stated for the delay of his promotion do not  match  the  actual
Office of Special Investigation (OSI) report.  He was denied access  to  the
supporting evidence/documentation contrary to  the  provisions  of  AFI  36-
2501.   His  promotion  delay  notification  was  not  made  by  the  MAJCOM
authority as required by AFI 36-2501.  His  promotion  delay  was  effective
for a six month period or until completion of  the  OSI  investigation,  the
investigation was completed 15 Aug 03 and no other  actions  were  taken  to
extend or further delay his promotion; therefore, his  promotion  should  of
occurred upon completion of the OSI investigation.

In support of his request, applicant provided documentation associated  with
his promotion delay action and a copy of the OSI investigation cover  sheet.
 His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force on  24
Feb 84 and was voluntarily ordered to extended active duty 22  Mar  84.   He
was progressively promoted to the grade of major, having assumed that  grade
effective and with a date of rank of  1  Feb  96.   He  was  considered  and
selected for promotion to the grade of lieutenant colonel  by  the  Calendar
Year  1999B  (CY99B)  Central  Lieutenant  Colonel  Selection  Board,  which
convened on 30 Nov 99.  His projected effective date of promotion was 1  Jul
00.

On 11  May  00,  applicant  was  notified  by  his  commander  that  he  was
recommending delay of his promotion to  the  grade  of  lieutenant  colonel.
The specific reasons for this action were allegations of fraternization  and
sexual misconduct between the applicant and female subordinates.  On 18  May
00, applicant provided a written  response  to  the  recommendation.   In  a
legal  review  of  the  case  file,  AFMC/JAG  noted  in   the   Errors   or
Irregularities paragraph that the plain  meaning  of  the  language  of  his
notification letter is that he is entitled to assume  the  next  grade  upon
completion of the AFOSI,  but  opined  that  this  ambiguity  is  adequately
resolved  by  the  addendum  to  the  notification  letter  and  recommended
approval of the promotion delay action.  On 27 Jul 00, AFMC/CV approved  the
recommendation.

On 29 Sep 00, the applicant was notified by his commander of his  intent  to
impose nonjudicial punishment under Article 15 of the  UCMJ.   The  specific
reasons for this action were on or about 1 Aug 99 and on  or  about  31  Aug
99, he wrongfully and dishonorably acted in an unprofessional  manner  at  a
party; on or about 22 Oct 99, he wrongfully and  dishonorably  acted  in  an
unprofessional manner at an intramural football game;  on  divers  occasions
between 1 Aug 99 and on or about 30 Sep 99,  knowingly  fraternize  with  an
enlisted  female  on  terms  of  military  equity  by  engaging  in   sexual
intercourse and sodomy with her; and on divers occasions between  1  Jun  99
and on or about 10 Nov 99, knowingly fraternize  with  enlisted  members  of
his unit by supplying and consuming alcohol with them and  socializing  with
them at dormitories  and  other  non-official  social  gatherings.   He  was
advised of his rights  in  this  matter  and  acknowledged  receipt  of  the
notification on 4 Oct 00.  After consulting counsel,  the  applicant  waived
his  right  to  demand  trial  by   court-martial,   accepted   Article   15
proceedings, and provided a written and oral presentation to his  commander.
 On 24  Oct  00,  after  consideration  of  all  the  facts,  his  commander
determined that he committed  one  or  more  of  the  offenses  alleged  and
imposed punishment on the applicant.  He was ordered to forfeit  $2,379  pay
per month for 2 months and was  reprimanded.   The  applicant  appealed  his
punishment but later elected to withdraw his decision to appeal.

On 31 Oct 00, applicant was notified by his commander of his  recommendation
to remove his name form the promotion list.  The specific reasons  were  the
behavior, which led to his Article 15 punishment.  On 9 Nov 00 and on 4  Jan
01, applicant provided written replies to the recommendation.  On 9 Jan  01,
in  a  legal  review  of  the  case  file,  SM-ALC/JA  found   the   removal
recommendation legally sufficient.  On 25 Jan 01, in a legal review  of  the
case file, OO-ALC/JA found the  removal  recommendation  legally  sufficient
with some corrections and clarifications.  On 1 Mar 01, AFMC/JAG  found  the
removal recommendation legally sufficient.  On 11 Jun 01, the  Secretary  of
the Air Force directed that his name be removed from the promotion list.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO recommends denial.  DPPPO states that in accordance with AFI  36-
2501 propriety action must contain a clear statement of the reasons for  the
action.  The notification letter of 11  May  00  and  the  addendum  to  the
notification letter dated 12 May 00 clearly provided  the  reasons  for  the
delay  action.   There  is  no  legal  requirement  that   the   letter   of
notification match the exact reason of the investigation.  The AFI  requires
the propriety action to contain the evidence  documenting  the  reasons  for
the delay.  His  Area  Defense  Counsel  (ADC)  requested  a  delay  in  his
response  to  the  delay  action,  as  they  had  not  been   provided   the
documentation to support the recommendation.  On 12 May  00,  the  commander
provided the  applicant  and  his  counsel  the  most  detailed  information
available  regarding  the  allegations  being  explored  in   the   on-going
investigation.  In a legal review completed by AFMC/JAG  it  was  determined
that the addendum to the notification letter dated 12 May 00 which  informed
the applicant that his promotion was delayed "pending the  outcome"  of  the
OSI investigation  gave  the  applicant  sufficient  notice  that  the  mere
completion of the investigation alone does not terminate the  delay  action.
Although the letter signed by AFMC/CV approving the  delay  action  did  not
advise the applicant he could make a written statement to the  Secretary  of
the Air Force, on 31 Oct 00 he was notified that action was being  taken  by
the Secretary of the Air Force (SAF) to remove his name from  the  promotion
list.  He was provided the opportunity to submit documents  to  the  SAF  on
his behalf for all actions being taken.  The DPPPO evaluation is at  Exhibit
C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that the specific reason given in the promotion  delay  was
"allegations of fraternization and sexual misconduct between you and  female
subordinates."  No evidence was provided for his  comment.   He  was  denied
evidence from the on-going investigation and instead reference was  made  to
an internal investigation conducted five  months  earlier.   The  referenced
investigation was not the rationale for the delay action  and  as  such  did
not satisfy the requirements of AFI 36-2501.  The AFI states  that  evidence
will be provided and does not provide  any  exceptions.   In  his  case  the
effective date of his promotion was  unknown  so  the  expiration  date  was
identified as "when the pending investigation  is  complete  or  six  months
after  the  effective  date  of  promotion."   The  OSI  investigation   was
completed 11 Aug 00.  His personnel records reflect no  actions  that  would
cause an automatic extension of the delay period.  Moreover, no  action  was
taken for over ten weeks after completion of the investigation.  He  has  no
record of the legal review.  His  official  records  do  not  indicate  this
review nor was the addendum submitted to the  command  during  consideration
of the delay recommendation.  The legal review seems to indicate  that  both
the promotion delay  and  addendum  violates  the  guidance.   Although  the
advisory  states  that  notification  from   AFMC/CV   provided   sufficient
notification to allow appeal, the fact remains  that  he  was  not  directly
notified  by  the  MAJCOM.   Fundamental  deviations  from  the   prescribed
notifications should invalidate the delay action.

The refusal to provide evidence,  refusal  to  provide  specific  expiration
dates for the promotion delay period, inability to provide specific  reasons
for promotion delay, lack of early  identification  and  documentation,  and
the ability  to  follow  the  processing  and  notification  guidelines  are
reasons the promotion delay should be declared  invalid  and  his  promotion
should be effective 1 Jul 00.

In  support  of  his  request,  applicant  provided  a  personal  statement,
documentation associated with Lt Gen Leo Marquez Award, his CY99B  Promotion
Recommendation Form, his Officer Performance Report closing 22  Nov  99,  an
Achievement Award certificate, a Certificate of Appreciation, and  a  Letter
of Appreciation.  His complete response, with attachments, is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

USAF/JAA recommends denial.   JAA  states  the  standard  for  initiating  a
promotion propriety action is when "the preponderance of evidence shows  the
officer is not mentally, physically, morally,  or  professionally  qualified
to perform the duties of the higher grade."  There is no requirement that  a
promotion propriety action be solely based on a single act or the result  of
a single investigation.  At the time the commander initiated  his  promotion
delay, a CDI had been completed and  administrative  action  levied  against
the applicant for his misconduct that occurred.  As a result  of  additional
information, an AFOSI investigation was also underway.   The  investigations
centered on the unprofessional conduct of the applicant that clearly  called
into question his fitness to perform the duties of  the  higher  grade.   He
was served with the promotion delay  action  on  11  May  00  and  this  was
followed by  an  addendum  listing  additional  alleged  offenses.   In  the
addendum,  his  commander  specifically  stated  that  the  on-going   AFOSI
investigation involved similar issues that were  investigated  by  the  CDI.
Thus, he had ample notice of the basis for the promotion  delay  action  and
an opportunity to respond.

His commander provided him with two  memoranda,  one  of  which  stated  the
promotion delay was due to "an on-going  Office  of  Special  Investigations
(OSI) investigation..."  His commander wrote to his ADC stating he  provided
the  applicant  with  the  most  detailed  information  available  regarding
allegations being explored and attached a courtesy copy of  the  information
for the ADC's use.  At no time did the  applicant  or  his  counsel  respond
that they did not understand the facts or basis of the allegations, nor  did
they deny having access to the CDI ROI.  At the time,  the  commander  fully
complied with AFI-36-2501's mandates.

Regarding the applicant's position that the AFOSI ROI  is  dated  15 Aug  01
and consequently, this date was the promotion delay end date and no  actions
were taken to extend or cause automatic extension to the delay,  JAA  states
pursuant  to  AFI  36-2501  paragraph  5.2.,  his  commander  only  makes  a
recommendation  to  the  initial  promotion   delay   approving   authority.
Presumptively,  the   approving   authority   considered   the   commander's
recommendation and elected to approve his promotion delay until  1  Jan  01.
This election was well within his regulatory discretion  and  no  error  was
committed.  Pursuant to AFI 36-2501,  paragraph  5.6.1.  "extension  to  the
delay period is automatic upon initiation of  a  recommendation...to  remove
the officer from the list."  His  commander  notified  him  of  the  removal
action on 31 Oct 00.  Due to administrative errors, he was again served  the
removal action on 20 Dec 00.   The  initiation,  or  re-initiation,  of  the
removal action triggered the automatic extension of the delay period,  which
could extend 18 months from the effective date of his original promotion  or
until 1 Jan 02.  Such a lengthy delay was unnecessary because on 11 Jun  01,
the Secretary removed his name from the promotion list.

After the promotion delay was approved  by  AFMC/CV,  his  recourse  was  to
"make  a  written  statement  to  the  SAF  in  response  to  the   action."
Admittedly, the applicant was  not  officially  notified  of  this  response
entitlement, but his case  file  was  replete  with  evidence  that  he  was
represented by able counsel, who was under a  duty  to  advise  him  of  his
right to make a written response to the delay action.  Nevertheless,  within
10 weeks of being notified of the approval  of  the  delay  action,  he  was
served, and responded to the promotion list removal  action.   All  matters,
including his  written  responses,  were  submitted  to  the  Secretary  who
ultimately decided that not only was  promotion  delay  action  meritorious,
but the misconduct warranted removal from the promotion list.

JAA notes that he does not dispute that  he  engaged  in  misconduct.   Even
more noteworthy, his misconduct  was  a  pattern  of  fraternization,  by  a
commander, that included engaging  in  sexual  relationship  with  a  female
staff sergeant  assigned  to  his  own  squadron.   Clearly,  based  on  his
admissions  he  compromised  nearly   every   tenet   of   officership   and
consequently, has suffered no injustice.  The JAA evaluation is  at  Exhibit
F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR ADDITIONAL FORCE EVALUATION:

Applicant states  he  admitted  poor  judgment  by  attending  the  off-base
function and staying as long as he did, he never  acknowledged  or  admitted
to any wrongdoings.  The information provided to him and the  ADC  consisted
of the CDI ROI from December 1999 only, which  states  the  reason  for  the
promotion  delay  were  the  on-going  AFOSI  investigation  and  that   the
investigation was matters  not  previously  investigated  and  not  the  CDI
initiated in December 1999.  AFI 36-2501 mandates that one or more  specific
reasons be identified for action and supporting documentation provided.   By
not providing the supporting documentation or the AFOSI information  on  the
additional matters  not  previously  investigated,  the  commander  violated
regulatory mandates.  In accordance with AFI 36-2501, it was  the  AFMC/CV's
responsibility  to  inform  him  of  his  response  entitlement,   not   the
responsibility of his counsel.  He was not  a  commander  at  the  time  the
suspect activities took place as indicated by JAA.  He was not  eligible  to
be a squadron commander until release  of  the  commander  nomination  board
results on 7 Oct 99.  He did not become a G-Series commander  until  23  Nov
99.  The period of time from the start of the  promotion  delay  actions  to
promotion removal actions was 24 weeks, not 10 weeks  as  indicated  in  the
advisory.  During this period, many  opportunities  for  review  or  relief,
allowed by AFI 36-2501, were missed and undermined his  ability  to  present
the strongest possible case.

Even though the CDI resulted in a letter of reprimand, he  remained  in  his
position as squadron commander.  The  77SPTG/DD  was  either  his  rater  or
additional rater during the entire period.  He  never  counseled,  mentored,
or advised him during this entire period that his  efforts  were  less  than
spectacular.  The  Article  32  investigation  showed  that  the  AFOSI  put
witnesses in the same room "to get their stories straight."

Any one of the reasons specified is sufficient to invalidate  the  promotion
delay.  The refusal to provide all the evidence, the  inability  to  provide
specific reasons for  the  delay,  the  lack  of  early  identification  and
documentation, documented witness coercion,  and  the  inability  to  follow
guidelines are reasons the promotion delay should be declared invalid.

In support of his appeal, applicant provided a personal statement,  excerpts
from the CDI, excerpts from the AFOSI investigation, email communiqués,  his
G-Series order, and an affidavit.  His complete response, with  attachments,
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  warranting  corrective   action.    The
applicant's contentions regarding due  process  are  duly  noted.   However,
after thoroughly reviewing the evidence of record, to include  the  detailed
legal opinions, we are not persuaded that he  has  been  the  victim  of  an
error or injustice.  Evidence has not been presented which would lead us  to
believe that there were procedural  errors  resulting  in  an  injustice  or
improprieties in the processing of his promotion delay  action  or  that  he
was denied rights to  which  he  was  entitled.   Therefore,  we  adopt  the
opinions  and  recommendations  of  the  Air  Force   offices   of   primary
responsibility as the basis for our determination that he has not  been  the
victim of an error or injustice.  In the absence of persuasive  evidence  to
the contrary, we find no compelling basis upon which 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  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-
01746 in Executive Session on 6 May 04, under  the  provisions  of  AFI  36-
2603:

      Mr. Laurence M. Groner, Panel Chair
      Ms. Deborah A. Erickson, Member
      Ms. Sharon B. Seymour, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 30 Jul 03.
    Exhibit D.  Letter, SAF/MRBR, dated 8 Aug 03.
    Exhibit E.  Letter, Applicant, dated 12 Nov 03, w/atchs.
    Exhibit F.  Letter, USAF/JAA, dated 22 Mar 04.
    Exhibit G.  Letter, SAF/MRBC, dated 24 Mar 04.
    Exhibit H.  Letter, Applicant, dated 22 Apr 04, w/atchs.
    Exhibit I.  Promotion Removal Package - WITHDRAWN
    Exhibit J.  Commander Directed Investigation - WITHDRAWN




                                   LAURENCE M. GRONER
                                   Panel Chair