RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2003-03620
            INDEX NUMBERS: 126.04, 128.14,
                                131.00 & 111.01

      XXXXXXX    COUNSEL:  RONALD P. KELLER

      XXXXXXX    HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Article 15 imposed on 19 December 2002,  be  vacated  and  removed
from his records.

2.    The Officer Performance Report (OPR)  closing  25  February  2003,  be
removed from his records.

3.    His promotion to the grade of  captain  be  retroactively  reinstated,
effective 26 February 2003, with all back pay and allowances.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The Commander Directed Investigation (CDI) was  improperly  conducted,  very
biased, and slanted.   His  supervisors  did  not  relay  known  information
during  the  decision  making  process.   Furthermore,  the  punishment   he
received was inequitable compared to punishments received by others.   Other
officers who committed the exact same offenses were merely  given  a  Letter
of Reprimand (LOR) and an Unfavorable Information File (UIF).   He  did  not
disobey a lawful order, intimidate, or harass  Ms.  A,  and  she  was  still
talking to him through January 2002.  As a result of  the  harsh  punishment
he  received,  he  will  be  forced  to  leave  the  Air  Force   in   2004.
Furthermore, he will receive $1,898.00 less per month in retired pay  if  he
is not allowed to retire in the grade of captain.   He  has  never  had  any
prior disciplinary action taken against him.  The AFBCMR has  been  inclined
to  vacate  Article  15  actions  in  similar  situations  where  the  facts
demonstrate a substantial injustice.

In support of the appeal, applicant submits numerous  character  references,
extracts from his military personnel records, and a copy of  the  Record  of
Proceedings pertaining to AFBCMR Docket Number 98-00094.

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

_________________________________________________________________


STATEMENT OF FACTS:

The applicant is currently serving on extended active duty in the  grade  of
first lieutenant.  A Commander Directed Investigation  (CDI)  was  initiated
on 20 June 2002, to investigate allegations  that  applicant  had  a  sexual
relationship with Ms A---, and when she attempted to end  the  relationship,
he continued to act inappropriately  toward  her.   The  CDI  concluded  the
allegations were substantiated and that due to the conscious efforts of  the
applicant to remove any  possible  evidence  from  his  government  computer
account, Uniform Code of Military Justice (UCMJ) action  under  Article  134
should be considered.  The commander imposed  nonjudicial  punishment  under
Article 15 of the UCMJ on 19 December 2002, for attempting to impede  a  CDI
into  his  behavior  by  erasing  his  email  traffic  from  his  government
computer; violating a  lawful  order  by  sending  harassing,  intimidating,
abusive or offensive material; and for wrongfully having sexual  intercourse
with Ms. A---.  The punishment consisted of forfeiture of $1936.00  pay  per
month for two months, restriction to Montgomery and Greene Counties  for  60
days, with the exception of required military duty, and a reprimand.

He was considered and selected for promotion to the grade of captain in-the-
promotion zone (IPZ) by the  CY02B  Captain  Central  Selection  Board  that
convened on 10 June 2002.   However,  on  28 January  2003,  the  Commander,
Aeronautical Systems Center, initiated action to remove his  name  from  the
promotion list.  The commander indicated his bases for the action  were  the
applicant’s attempt to wrongfully impede a CDI, failure  to  obey  a  lawful
order or regulation, and adultery.  On 23 June 2003, the  Secretary  of  the
Air Force approved the removal of the applicant’s name  from  the  promotion
list.  He was considered and not selected for  promotion  to  the  grade  of
captain  above-the-promotion  zone  (APZ)  by  the  CY03C  Captain   Central
Selection Board.  He has a mandatory separation date of 31 July 2004.

Applicant’s OPR profile follows:

           PERIOD ENDING          EVALUATION OF POTENTIAL

                  8 Oct 99             Training Report (TR)
                  9 Jul 99                       TR
                 25 Feb 00             Meets Standards (MS)
                 25 Feb 01                MS
               # 25 Feb 02                MS
               * 25 Feb 03 (Referral)  MS on all standards except
                                                  Leadership       Skills,
Professional
                                       Qualities & Judgment and
                                       Decisions
                  1 Sep 03         MS

# Top report reviewed by the CY02B Capt Board.

* Contested report and top report reviewed by the CY03C Capt Board.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends denial of the  applicant’s  request  that  the  entire
Article 15 be vacated.  AFLSA/JAJM states, in  part,  that  the  AFBCMR  may
conclude that the single charge of attempted obstruction of  justice  should
be set aside since there is no evidence the applicant  erased  or  attempted
to erase email traffic after he was  notified  of  the  CDI.   However,  the
remaining offenses are well supported by the  evidence  and  the  punishment
imposed was justified and reasonable for those offenses.

The AFLSA/JAJM evaluation, with attachments, is at Exhibit C.

AFPC/DPPPE recommends the applicant’s request to void the contested  OPR  be
denied; however, if the AFBCMR decides to set aside  the  single  charge  of
attempted  obstruction  of  justice,  they  recommend  the  bullet  in   the
contested OPR  be  rewritten  to  read,  “Member  received  Article  15  for
adultery  and  inappropriate  use  of  government  computers.”    AFPC/DPPPE
states, in part, that the applicant has provided no evidence to support  his
contention that the OPR is inaccurate.  Since AFLSA/JAJM  has  substantiated
the Article 15 is valid in part, the  OPR  can  be  considered  an  accurate
assessment of the applicant’s performance.

The AFPC/DPPPE evaluation is at Exhibit D.

AFPC/DPPP recommends the applicant be denied promotion  consideration  by  a
Special Selection Board (SSB) for the CY03C  board  since  the  overall  OPR
rating will not change if the AFBCMR decides to remove the single charge  of
attempted obstruction of justice from the Article 15 and contested OPR.

The AFPC/DPPP evaluation, with attachments, is at Exhibit E.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

While the Air Force is commended for realizing the charge of  attempting  to
obstruct an investigation should be removed, there is insufficient  evidence
to support the two remaining charges.  Although it is alleged Ms. A---  told
the applicant she no longer wished to have contact  with  him,  this  is  an
issue of contention.  Furthermore, the emails she  presented  were  altered.
Regardless,  after  the  January  2002  timeframe,  the  emails   diminished
dramatically.  In addition, the applicant never had any  sexual  intercourse
with Ms. A--- and adultery does not encompass  anything  other  than  sexual
intercourse.  A close relationship does not rise to the level  of  adultery.
As a result of the action taken against him, the  applicant’s  promotion  to
captain was redlined, he will be relieved from duty  on  31 July  2004,  and
will not be able to retire as an officer.

Counsel’s complete submission, with attachments, is 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice to warrant removing  the  single  charge  of
attempting to wrongfully impede an investigation from  his  records.   Since
there is no evidence the  applicant  erased  or  attempted  to  erase  email
traffic after he was notified of the CDI, the  charge  is  unsupported.   In
view  of  this,  the  charge  of  attempting  to   wrongfully   impede   the
investigation should be removed from the Article 15  and  the  reference  to
his interference with a government investigation should be removed from  the
contested OPR.  Although we believe the contested report should  be  amended
to  delete  any  reference   to   his   interferring   with   a   government
investigation, the evidence provided did not persuade us  that  the  overall
ratings on the report should  be  changed  or  that  the  report  should  be
removed from his records.  In view of this, we find no basis upon  which  to
recommend his consideration for promotion to  the  grade  of  captain  by  a
Special Selection Board.  Therefore, we recommend  the  applicant’s  records
be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice concerning the remainder  of  his  requests.
After  a  thorough  review  of  the  evidence  of  record  and   applicant’s
submission, we are not persuaded that further relief  is  appropriate.   The
remaining offenses cited in the Article 15 are supported by the evidence  of
record and evidence has not been presented which would lead  us  to  believe
the nonjudicial punishment and the removal of his name  from  the  promotion
list were improper.  Therefore, we find no basis  upon  which  to  favorably
consider removing the entire Article 15 from his records  and  retroactively
reinstating his promotion to the grade of captain.

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.    Any and all references to his violation of the Uniform  Code  of
Military Justice (UCMJ), Article 80, be declared void and removed  from  the
nonjudicial punishment under Article 15, UCMJ, imposed on 19 December 2002.

      b.    The Company Grade Officer  Performance  Report,  AF  Form  707B,
rendered for the period  26  February  2002  through  25 February  2003,  be
amended in Section VI, Rater Overall Assessment,  second  bullet,  to  read:
“Member  received  Article  15  for  adultery  and  inappropriate   use   of
government computers.”

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-03620
in Executive Session on 22 July 2004, under the provisions of AFI 36-2603:

                       Mr. Laurence M. Groner, Panel Chair
                       Ms. Cheryl V. Jacobson, Member
                       Ms. Jean A. Reynolds, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 16 Mar 04, w/atchs.
    Exhibit D.  Letter, AFPC/DPPPE, dated 26 May 04, w/atchs.
    Exhibit E.  Letter, AFPC/DPPP, dated 1 Jun 04, w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 4 Jun 04.
    Exhibit G.  Letter, Counsel, dated 24 Jun 04, w/atchs.




                                   CHERYL V. JACOBSON
                                   Acting Panel Chair
AFBCMR BC-2003-03620




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to XXXXXXX, XXXXXXX, be corrected to show that:

            a.   Any and all references to his violation of the Uniform
Code of Military Justice (UCMJ), Article 80, be, and hereby are, declared
void and removed from the nonjudicial punishment under Article 15, UCMJ,
imposed on 19 December 2002.

            b.   The Company Grade Officer Performance Report, AF Form
707B, rendered for the period 26 February 2002 through 25 February 2003, be
amended in Section VI, Rater Overall Assessment, second bullet, to read:
“Member received Article 15 for adultery and inappropriate use of
government computers.”










JOE G. LINEBERGER

Director

Air Force Review Boards Agency