RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-04244
            INDEX CODE:  131.04

            COUNSEL:  FRED L. BAUER

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

A letter of reprimand (LOR) dated 15 September 2002, and  the  Officer
Performance Report (OPR) rendered for the period 30 June 2001  through
29 June 2002 be removed from her record and her promotion to major  be
backdated to 17 November 2002, her earliest date of eligibility.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was punished by her commander for  making  a  non-interest-bearing
loan to a non-commissioned officer (NCO).  After she had tried to help
the NCO find relief through pertinent agencies, she did  make  a  loan
for $600 that the NCO agreed to repay in two  installments.   The  NCO
was experiencing multiple  stressful  events  and  she,  after  trying
everything she knew to help him, began to try  and  extricate  herself
from the entire situation.  She states that on one  occasion  she  met
with the NCO to try and  recoup  the  loan  and  found  herself  in  a
situation with the  NCO  threatening  suicide.   Local  police  became
involved at that point and assumed that because a man and a woman were
having a problem that they were having a  lover’s  spat.   The  police
report indicated such and she did not address it as  she  was  already
frustrated and did not want the situation to become a civilian matter.
 At  some  point,  military  authorities  read  the  report  and  also
mistakenly assumed there was a relationship between the two.  The  NCO
made a similar claim at one point and then retracted it.   She  points
to  the  NCO’s  retraction  of  his  claim,  the  NCO’s   girlfriend’s
statement, and a positive polygraph result to reiterate  she  and  the
NCO were not involved in any relationship.

Her commander ordered an investigation and appointed  a  Chief  Master
Sergeant (CMSgt) to perform the investigation.  The Chief happened  to
work for the applicant and had been recommended for  non-retention  by
her.  She states the Chief was obviously not a good choice for the job
of being an “impartial” investigator.  She has paid a heavy price  for
her involvement in trying to help an NCO deal with his problems.   Her
promotion to major was delayed, she received an LOR,  and  a  referral
OPR, suspended for four days, and  has  incurred  major  expenses  and
stress in the attempt to defend herself.  She states she was known  as
the “…hardest working officer in the XXXX Airlift Wing” and  that  the
punishment she received was excessive in view  of  her  well-motivated
and permissible reasons for making the loan.  Her OPR’s prior  to  and
after the referral OPR have all been impeccable.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the XXANG in the grade of  major
as a full-time civilian technician.  On or about 1 November 2001,  the
applicant loaned an NCO $600, interest free, and signed  a  promissory
note that stated the NCO would repay the loan in two installments over
a three-month period.  Her commander deemed the loan  a  violation  of
Air Force Instruction (AFI) 36-2909, Professional  and  Unprofessional
Relationships, wherein it is stated “Officers will not lend money  to,
borrow money from, or otherwise become indebted to  enlisted  members.
Exception: Infrequent, non-interest-bearing loans of small amounts  to
meet exigent circumstances.”  Consequently, on 23 June 2002, he issued
her an LOR wherein he indicated he was withdrawing a recommendation to
involuntarily discharge her for misconduct  and  instead,  reprimanded
her for making a loan to  an  enlisted  member  and  for  engaging  in
conduct unbecoming an officer by involving the local police department
in resolving a dispute with the enlisted member.

A resume of the applicant’s available OPR profile follows:

            PERIOD CLOSING        OVERALL EVALUATION

             29 June 2000       Meets Standards (MS)
             29 June 2001             (MS)
            *29 June 2002      (Referral Report)
             3 April 2003             (MS)

The applicant was eligible for consideration for position vacancy (PV)
promotion to major on 17 November 2002 but there is no evidence in the
file to indicate her commander had recommended her  for  promotion  at
that time.  She was eventually promoted to major on 30 October 2003.

*Contested Report.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPP recommends denial.  DPP states the only  undisputed  facts  of
this case are that the applicant did make  an  interest-free  loan  of
$600 to an enlisted member and completed a promissory note that stated
the enlisted member would repay the loan within 3 months.   DPP  notes
their advisory will only address these undisputed facts and  will  not
argue  with  any  unproven  or  unclear  allegations,   innuendos   or
suppositions made by the involved parties.  Therefore, with regard  to
the loan, DPP contends the definition of “Exigent”  as  “…calling  for
immediate action or attention; urgent, critical” (Webster’s NWD, Third
College Edition).  DPP states that if the NCO’s need was  so  pressing
as to qualify for the exception to the rule then the applicant  had  a
responsibility  to  elevate  his  need  through  his  chain-of-command
instead of making him a loan.  Regarding the LOR and referral OPR, DPP
states  that  while  LOR’s  are  not  applicable  to  ANG   personnel,
commanders  can  include  additional  documentation,   not   typically
authorized in an ANG Unit Personnel Record Group (UPRG), in a  private
commander’s information file.   Therefore,  while  the  title  of  the
document and it’s location is not authorized in the ANG member’s UPRG,
it may be maintained for future reference elsewhere.  That  said,  the
commander, while not obligated to include information from the LOR  in
the applicant’s OPR, chose to do so in this instance,  which  rendered
it a referral OPR.  On addressing her request she be promoted to major
at the earliest possible date, DPP notes that her promotion  paperwork
and commander’s recommendation were  not  submitted  until  after  the
incident of the loan and the ensuing investigation.  Therefore,  there
is no indication her  promotion  was  delayed  by  this  incident  and
subsequently there are no grounds to adjust her promotion date  to  an
earlier date.

DPP’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel addresses the ANG advisory  by  arguing  that  the
loan in question for $600 is open to interpretation regarding  whether
or not, by regulation, it should meet the test of being a  loan  of  a
“small amount.”  Under the circumstances, he states the loan would  be
considered small and that any credit union manager would agree it  was
a small loan.  Regarding the other parts of the test, the loan was not
interest bearing and was certainly infrequent as it was the only  loan
made to the NCO.  Counsel notes the applicant was not on duty when she
made the loan and was in a civilian status.  She was not in the  NCO’s
chain-of-command and counsel questions whether or not AFI 36-2909 even
applies to the ANG.

Counsel argues the applicant made several attempts  to  help  the  NCO
obtain funds from the Air Force Aid Society and other aid  venues  but
was unsuccessful.  Elevating this issue of the NCO’s  chain-of-command
was not considered a good idea given the emotional distress  displayed
by the NCO due  to  his  mother’s  imminent  removal  from  her  home.
Counsel states the applicant did not have to act perfectly  under  the
circumstances, only reasonably.

Addressing the LOR, counsel states they were not seeking a ruling that
the ANG did not have the authority to issue an LOR but that an LOR was
not justified in this case.  Comments from the Wing Commander  leading
to innuendo’s of fraternization between the applicant and the NCO have
been cleared up, and, had he not appointed an IO junior in rank with a
clear conflict of interest,  his  decision  to  issue  an  LOR  and  a
referral OPR might well have been different.

Counsel states the ANG’s position that no evidence exists to show  the
applicant’s promotion  to  major  was  delayed  by  this  incident  is
incorrect as, logically,  in  the  absence  of  any  other  derogatory
material in her record, the issue of the loan stands alone as the only
reasonable explanation.  Finally,  counsel  contends  the  applicant’s
primary reason for applying for relief is to clear her name.

Counsel’s complete response is attached 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.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice.   After  a  thorough  review  of  the
record and in particular the statement from  the  state  ANG  Adjutant
General regarding the procedurally flawed  investigation,  we  believe
the actions taken against her were  unusually  harsh.   We  realize  a
strict interpretation of the AFI may indicate fault  but  we  consider
the aid she provided the NCO as nothing more than her doing  what  she
thought was right.  Under the existing circumstances of this case,  we
believe the referral OPR and  the  LOR  should  be  removed  from  her
records.  Therefore, we recommend that the  records  be  corrected  as
indicated below.

4.  Insufficient relevant evidence exists warranting a change  to  her
date of rank to the grade of major.  Her contention that her promotion
to the grade of major was delayed by the LOR and the referral OPR  are
noted.  However, without a recommendation from her commander, she  was
not eligible for PV  promotion  consideration.   We  note  that  every
eligible major is not recommended for PV promotion.  As stated  above,
the applicant  has  not  provided  a  statement  from  her  commander.
Therefore, in the absence of evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
instance.

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  issue(s)   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. The Officer Performance Report, AF  Form
                              707A, rendered for  the  period  30 June
                              2001  through  29  June  2002,  be,  and
                              hereby is,  declared  void  and  removed
                              from her records.

                           b.   The  Letter  of  Reprimand,  dated  15
                              September  2002  be,  and   hereby   is,
                              declared  void  and  removed  from   her
                              records.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 10 August 2004, under the provisions of  AFI  36-
2603:

      Mr. John L. Robuck, Panel Chair
      Ms. Kathleen F. Graham, Member
      Ms. Carolyn B. Willis, Member

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

    Exhibit A.  DD Form 149, dated 16 Jun 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 9 Jun 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Jun 04.




                                   KATHLEEN F. GRAHAM
                                   Acting Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


[pic]
Office Of The Assistant Secretary



AFBCMR BC-2003-04244




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 APPLICANT, be corrected to show that:

                a. The  Officer  Performance  Report,  AF  Form  707A,
rendered for the period 30 June 2001 through 29  June  2002,  be,  and
hereby is, declared void and removed from her records.

            b. The Letter of Reprimand, dated 15  September  2002  be,
and hereby is, declared void and removed from her records.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency