RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02842

      XXXXXXX    COUNSEL:  DAVID P. PRICE

      XXXXXXX    HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: 18 MARCH 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

1. His nonjudicial punishment under Article 15  of  the  Uniformed  Code  of
Military Justice (UCMJ) on 1 October 2000 be vacated, and all  entries,  and
references to the nonjudicial punishment be removed from his records

2. Restoration of all rights and  privileges  affected  by  the  nonjudicial
punishment.

3. Removal of the Referred Officer Evaluation  Report  rendered  during  the
period 27 May 2000 through 2 October 2000.

_________________________________________________________________

APPLICANT CONTENDS THAT:

There is insufficient evidence of a sexual relationship  with  SrA  M__,  or
that he obstructed justice by allegedly asking her not to make  a  statement
to the investigator of these charges.  In  addition  to  these  allegations,
SrA M__ made allegations that he had sexual relations with no less than  six
other women.  These
allegations were determined to be unfounded by the investigating officer.

In support of his request, applicant provides  his  counsel’s  legal  brief,
with numerous attachments.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in the  grade  of  captain
with a date of rank of 29 May 2000.

On 13 September  2000,  the  applicant’s  commander  offered  the  applicant
nonjudicial punishment under Article 15, UCMJ,  for  wrongfully  dating  and
having a sexual relationship with SrA M__ and  obstruction  of  justice  for
trying to convince Amn M__ not to make a statement in violation  of  Article
134, UCMJ.  On         20 September 2000,  after  consulting  with  military
defense counsel, the applicant waived his right to  trial  by  court-martial
and accepted nonjudicial punishment proceedings.   He  submitted  a  written
presentation to and made a personal appearance before his commander.   On  1
October 2000, after considering all of the  evidence,  the  commander  found
the  applicant  committed  the  offenses  alleged.   The  commander  imposed
punishment of forfeiture of $1000.00 pay per month  for  two  months  and  a
reprimand.  The applicant did not appeal  the  punishment.   On  12  October
2000, the record was found legally sufficient.

His OPR profile since promotion to the grade of captain is as follows:

            PERIOD ENDING         OVERALL EVALUATION

      *           2 Oct 00        Referral
                  2 Sep 01        Training Report (TR)
                  2 Sep 02                   TR
                  6 May 03        MEETS STANDARDS (MS)
                  6 May 04                   MS

* - Contested Report

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial stating they found no  error  or  injustice  in
connection  with  the  military  justice  action.   In   their   view,   the
commander’s imposition of forfeitures and a reprimand was a permissible  and
proportionate punishment.

The applicant contends that he is innocent of the  offenses  underlying  the
nonjudicial punishment.  He claims his relationship with  SrA  M__  was  not
improper and that she lied in order to force him to enter into  an  improper
relationship with her.  He feels the evidence was not sufficient to  support
a finding that he committed the offenses.

The applicant raises the following as support for  his  position:  the  only
evidence of a sexual relationship and that he obstructed justice  came  from
SrA M__ and he completed a polygraph examination and the  examiner  did  not
note deception.  We find neither of these persuasive.  Regarding  his  first
point, his commander was in the best position to determine  the  credibility
of  the  applicant  and  SrA  M__.   His  commander  had  warned  him  about
allegations regarding  his  inappropriate  relationship,  but  there  is  no
evidence that he heeded the warning as he said he would.  If,  as  applicant
contends,  his  relationship  with  SrA  M__  was  purely   a   professional
relationship and she was trying to ruin his career because he did  not  want
a relationship with her, he would have no reason to say “Hello, my love”  in
emails from him to her.  Although the  applicant  explains  that  the  words
“Hola mi amor” in Hispanic culture are not intimate, he  states  that  these
are the words that he says to a Hispanic woman  whom  he  is  friends  with.
Even by the applicant’s account, their relationship  went  beyond  a  purely
professional relationship.

The fact that the applicant passed a  polygraph  is  likewise  unpersuasive.
Although the applicant asserts that his actions were misinterpreted and  SrA
M__  lied,  it  was  for  his  commander  to  assess  the  strength  of  his
explanations. The results of a polygraph test should not be substituted  for
the judgment of a commander on the scene.  When considering  the  imposition
of  nonjudical  punishment,  or  when  considering  an  appeal   from   such
punishment, the  commander  must  weigh  the  evidence,  including  possible
alternative interpretations, and draw reasonable inferences from  the  known
facts.   The  commander's  determinations  here  were  not  unreasonable  or
clearly unfair such that a set aside would be justified.

AFLS/JAJM’s complete evaluation is at Exhibit C.

AFPC/DPPPE recommended denial and stated that based  on  the  recommendation
of AFLSA/JAJM,  the  nonjudicial  punishment  was  not  found  in  error  or
injustice.  Therefore, the information provided on the  OPR  remains  valid.
The applicant failed to  provide  any  supporting  documents  to  prove  the
report was inaccurate.

AFPC/DPPPE’s complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the Air Force evaluation and stated that there was no  UCMJ
action taken against the applicant regarding the alleged/perceived  improper
relationship between the applicant and the  "soccer  mom,"  and  two  female
members of the Hispanic Heritage Club.  Article  15,  UCMJ,  punishment  was
imposed solely for his alleged improper relationship with SrA M__.

The applicant did not obstruct justice.  He did not  tell  SrA  M__  to  not
make a statement regarding their alleged  relationship.   The  investigating
officer based his finding on only one person's testimony, SrA  M__.  No  one
can corroborate her statements.  The investigating officer also stated  that
the applicant had been informed by MSgt S__, "without SrA  M__'s  statement,
an investigation may not take place."  A  review  of  MSgt  S__'s  statement
shows this was not his testimony.  MSgt S__ stated the applicant called  him
on the evening of  21  July  2000,  between  1730-17145,  asking  about  the
allegations made against him.  MSgt S__ told the applicant that  they  would
be taken up through the formal channels.  There is  no  indication  in  MSgt
S__'s statement that he related what could, or  could  not,  happen  to  the
investigation without SrA M__'s testimony.  The  investigating  officer  has
intimated the  applicant,  knowing  that  the  investigation  could  not  go
forward without SrA M__, now had a reason to persuade  her  not  to  make  a
statement.  This implication has no supportable evidence.

There is nothing to corroborate SrA M__'s testimony.   Telling  her  parents
and other Air Force members does not corroborate her claims.

The advisory opinion states witnesses testified "the applicant did  not  act
as if he was married," without substantiating such a very subjective  claim,
and the applicant's choice of not wearing a wedding ring does not  establish
that he was having an affair.  The applicant's position  remains  steadfast.
The applicant respectfully requests that the relief sought be granted.

Counsel’s complete response is at Exhibit F.

_________________________________________________________________

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.  We find no evidence of error in this  case
and after thoroughly reviewing the documentation provided in support of  his
appeal, we do not believe he has suffered an injustice.  In  cases  of  this
nature, we are not inclined to disturb the judgments of commanding  officers
absent a strong showing of abuse of discretionary  authority.   We  have  no
such showing here.   The  evidence  of  record  indicates  that  during  the
processing of the Article 15 action, the applicant was afforded every  right
to which he was entitled, he was represented by counsel,  waived  his  right
to demand trial by court-martial, and submitted matters for  review  by  the
imposing commander and appellate authority.  After considering  the  matters
raised by the applicant, the commander  determined  that  he  had  committed
"one or more of the offenses alleged" and  imposed  punishment.   Persuasive
evidence has not been provided which would  lead  us  to  believe  that  the
imposing commander or the reviewing  authority  abused  their  discretionary
authority, that his substantial rights were violated during  the  processing
of the Article 15 punishment, or that the punishment  exceeded  the  maximum
authorized by the UCMJ.  Therefore, we agree with the Air Force  offices  of
primary responsibility and adopt  their  rationale  as  the  basis  for  our
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.  In the absence of persuasive evidence to the contrary,  we  find
no compelling  basis  to  recommend  granting  the  relief  sought  in  this
application.

4.    With respect to  the  contested  referral  OPR,  the  Board  finds  no
evidence of an error in this case and is not persuaded that he has been  the
victim of an injustice.  In the rating process, evaluators are  required  to
assess a ratee's performance honestly and to the best of their ability.   In
cases of this nature, the Board  does  not  feel  inclined  to  disturb  the
judgments of commanding  officers  absent  a  strong  showing  of  abuse  of
discretionary authority.  Other than his own assertions,  evidence  has  not
been presented which would lead the Board to believe that his  rating  chain
abused their authority.  Therefore, the Board agrees with the  opinions  and
recommendations of the  Air  Force  office  of  primary  responsibility  and
adopts its rationale as the basis for their conclusion that he has not  been
the victim of an error or injustice.   Absent  persuasive  evidence  to  the
contrary, the Board finds no basis to recommend granting the  relief  sought
in this application.

_________________________________________________________________

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  Docket  Number  BC-2004-02842
in Executive Session on 4 May 2005, under the provisions of AFI 36-2603:

                 Mr. John B. Hennessey, Panel Chair
                 Mr. Joseph D. Yount, Member
                 Mr. Albert C. Ellett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 9 Dec 04.
    Exhibit D.  Letter, AFPC/DPPPE, dated 8 Jan 05.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Jan 04.
    Exhibit F.  Counsel’s Response, dated 11 Mar 05.




                                   JOHN B. HENNESSEY
                                   Panel Chair