RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01451
            INDEX CODE:  111.05

            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  3 NOV 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Officer Performance Report (OPR)  rendered  for  the  period  9 February
2002 through 8 February 2003, be declared void and removed from his record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The contested OPR does not reflect the  true  nature  of  his  judgment  and
performance and it has inflicted  inappropriate  emotional  suffering.   The
total punishment received was excessive and punitive  action  will  continue
for the rest of his life unless the contested report  is  removed  from  his
records.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned a second lieutenant  and  on  4 October  1985
entered active duty.  He was progressively promoted to the  grade  of  major
effective and with a date of rank (DOR) of 1 August 1997.

On 7 June 2001, the applicant’s  squadron  commander  issued  a  No  Contact
Order (NCO) to him, indicating the applicant was  hereby  ordered  to  avoid
contact with Mrs. X.  Under no circumstances was he  to  have  contact  with
her until the order was rescinded.  He took this action to ensure  the  good
order and proper discipline of the 55th Operations  Support  Squadron,  55th
Operations Group, 55th Wing, and Offutt Air  Force  Base.   No  contact,  as
defined, included any oral, physical, verbal, or written communication  with
this person directly, or through a third party.  Failure to obey this  order
would result in disciplinary action.

On that date, the applicant acknowledged receipt of the No Contact Order.

On 6 May 2002, the applicant was notified of his wing commander's intent  to
impose nonjudicial punishment  upon  him  for  the  following:   he,  having
knowledge of a lawful order issued by Lt Col D--- J. L---, on 7  June  2001,
not to have contact with Mrs. X, an order which it was  his  duty  to  obey,
did at or near  Offutt  Air  Force  Base,  Nebraska,  on  divers  occasions,
between on or about 7 June 2001 and on or about 2 April 2002, fail  to  obey
the same by wrongfully having contact with Mrs. X.

The commander advised the applicant of his right to consult  legal  counsel,
to demand trial by court-martial and  accept  nonjudical  proceedings  under
Article 15, UCMJ, submit statements in his own behalf, or waive  his  rights
after consulting with counsel.

After consulting with counsel, the applicant waived his right to a trial  by
court-martial, requested to make a  personal  appearance,  and  submitted  a
written presentation.

He was found guilty by his commander who imposed the  following  punishment:
a forfeiture of $500.00 pay per month for two months.

The applicant appealed the punishment.  The commander considered and  denied
the applicant’s appeal.   The  Article  15  was  filed  in  his  Unfavorable
Information File (UIF).

On 22 July 2002, the applicant’s new squadron commander  and  the  rater  of
the contested OPR issued a revocation of the No  Contact  Order,  indicating
the order, dated 7 June 2001 and signed by Lt Col D---  L---;  Commander  of
the 55th OSS was hereby rescinded.

OPR profile since 1999 follows:

           PERIOD ENDING          EVALUATION OF POTENTIAL

                 29 Jun 99              Meets Standards (MS)
                 # 29 Jun 00                 (MS)
                 29 Jun 01                   (MS)
                 08 Feb 02                   (MS)
                 * 08 Feb 03              Met Standards on all except
                                             for Judgment and Decisions
                 08 Feb 04                   (MS)
                 08 Feb 05                   (MS)

* Contested Report
# Top Report on file before the CY00A Lt Col Board

The  Promotion  Recommendation  Form  (PRF)  rating  for  the  P0503A  Board
indicated “Do Not Promote This Board.”

On 20 February 2004, the applicant appealed the contested report  under  the
provisions of AFI 36-2401 and the appeal was considered and  denied  by  the
Evaluation Reports Appeal Board (ERAB).

On 1 August 2005, the applicant was retired in the grade of major under  the
provisions of AFI 36-3203.  He served 20 years and 21 days of  total  active
duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPP recommended denial  indicating  the  applicant  states  the  rater
concurs with the removal of the report.  The rater provided a  memo  stating
he concurs with the removal of the report; however,  his  reasoning  is  not
due to the report  being  inaccurate.   The  rater  states  the  applicant’s
“outstanding service to the USAF prior to and after the period in  question,
and also the  exemplary  manner  in  which  he  has  overcome  all  personal
obstacles related to this matter” is his  specific  reason  to  support  the
removal of the report.  The rater does not once specify the  information  on
the report, the Article 15, the no contact order, or the  member’s  behavior
during the reporting period is inaccurate.  Therefore, the contested  report
is  an  accurate  assessment  of  the  applicant’s  performance  during  the
reporting period.

Although the rater concurs with the removal of  the  contested  report,  the
rater did document the applicant’s excellent performance  before  and  after
the incident on the report in section VI, line 8.  Therefore, the rater  was
able to elaborate on the applicant’s overall performance in addition to  the
negative information.

The applicant specifically states in paragraph 6 of his  memorandum  to  the
Board, “I violated that order [No Contact Order (NCO)] on two  occasions  to
come to K---’s aid.”  The applicant admitted he directly disobeyed a  lawful
order which was the reason for the Article 15.   The  Article  15  became  a
matter of record and the information from the Article 15 is  appropriate  to
place into  a  performance  report.   The  applicant  did  not  provide  any
justification to void the Article 15 and as long as  the  Article  15  is  a
matter of record, the  performance  report  is  a  true  reflection  of  the
applicant’s performance.

Once  again  the  applicant  failed  to  provide  sufficient   documentation
substantiating the report is inaccurate.  In  addition,  the  AFI  does  not
allow the ratee to determine what information should be placed on a  report;
that is the rater’s responsibility.  The rater must specifically  place  the
most important information concerning the ratee based on  his  own  opinion,
which is why the rater is responsible for completing the report.  Also,  the
applicant believes the total punishment  was  excessive,  however,  had  the
applicant followed the commander’s No Contact Order, there  would  not  have
been any punishment to document on the report.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated the  evaluation  repeats
the findings of the ERAB  and  he  finds  both  summations  to  be  accurate
representations  of  military  regulations.   However,  neither   evaluation
addresses the premise on which he based his case.  His contention  is  that,
in toto, punishment rendered by his  chain  of  command  within  the  United
States Air Force is excessive and  he  requests  removal  of  the  2002-2003
performance report IAW AFI 36-2401 paragraph 3.1  which  states:   “You  can
file an appeal to correct or remove an evaluation report  from  your  record
if you believe the report is incorrect or unjust.”

The no contact order was arbitrarily issued based on lies  and  hearsay,  Lt
Col L--- never allowed him to review the allegations made against  him,  and
the  order  was  issued  outside  the  guidelines  of  military  regulations
(perhaps illegally?) as  delineated  in  AFI  36-2909  paragraphs  8  and  9
(attached).

The no contact order subsequently placed him in a  moral  dilemma  which  he
resolved to  the  best  of  his  ability  and  that  subsequent  Article  15
punishment was more than sufficient.

The combination of the Article 15, two years of service  garnering  an  UIF,
forfeiture of $1,000 pay, a Do Not Promote recommendation  well  beyond  his
promotion zone, and a downgraded performance report  that  will  follow  him
for the rest of his life constitutes excessive punishment.

In closing, he asks the Board  to  order  the  Air  Force  Personnel  Center
(AFPC) to permanently remove the officer performance report for  the  period
of 9 February 2002 through 8 February 2003 from  his  service  record  as  a
matter of justice -- not veracity.   If  not  justice,  then  he  asks  this
civilian review board to consider his request  on  a  premise  not  afforded
within the military paradigm--mercy!  This report is part of a  long  series
of punishment that leaves the false  impression  that  his  conduct  in  the
service of his country  was,  in  some  way,  dishonorable.   It  lacks  any
reference to the extenuating circumstances that  forced  him  into  a  moral
dilemma which makes the report unfairly one-sided.  Furthermore,  it  leaves
him unable to defend  himself  because  he  cannot  adequately  explain  the
situation without resurfacing old wounds, which is  something  his  personal
sense of morality, will not allow him to do--even to people  who  have  hurt
him.

Applicant’s response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommended denial indicating the  applicant  concedes  that  he
violated an order of his commander.  That violation was the  subject  of  an
Article  15,  and  the  violation  and  Article  15  were   accurately   and
appropriately documented on his OPR and his  Promotion  Recommendation  Form
(PRF).  They believe the applicant failed to demonstrate  the  existence  of
any error or to present any facts or circumstances supporting an injustice.

The evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation  and  indicated  he  never  asked  the
Board to change any ratings or comments in his OPR.  He requests the OPR  be
deleted  from  his  record  -  it  is  unjustly  biased  in  favor  of   the
organization and does not accurately reflect the  situation  that  occurred.
No where in Air Force Instructions is the Board precluded  from  removing  a
performance report that it believes is unjust based on content.  The OPR  is
unjust based on content because it tells the  reader  that  he  violated  an
order  without  explaining  the  circumstances.   This  leaves   prospective
employers, and anyone else who has a right to review his records, with  only
half of the story.  It leaves the reader with  the  impression  that  he  is
disloyal to his superiors and unfaithful to the organization.   The  chances
of getting a job interview diminish considerably when employers are  led  to
question his stability and his ability to faithfully work for them.

His squadron commander failed to adhere to Air  Force  Instructions  in  the
application of discipline by arbitrarily issuing the no  contact  order;  he
refused to let him see the charges made against him; thus failed to  provide
him the opportunity to address the charges so he could offer a  defense;  he
refused to consider any of the measures he took to alleviate the  situation;
and he lied in his memorandum about the  Deputy  Commander  counseling  him.
The Judge Advocate General made no comment on any of these  issues.   He  is
asking the Board to take into consideration the incompetent judgment  of  Lt
Col L--- in the application of discipline via the no contact order  as  well
as Lt Col C---‘s  memo  refuting  Lt  Col  L---‘s  testimony  regarding  any
counseling he supposedly received.

He is asking the Board to consider the fact that Lt Col  L---‘s  incompetent
decision had the opposite effect intended.  They ultimately  placed  him  in
an unnecessary moral dilemma and strained Mrs. X’s marriage to the  breaking
point by cutting off that family’s primary source  of  local  support  after
her husband’s reassignment.  He is asking the Board  to  consider  the  fact
that while he may have no civil rights as a military member,  the  arbitrary
actions taken by Lt Col L--- also violated Mrs.  X’s  civil  right  of  free
association as previously adjudicated by the United States Supreme Court.

If the Board believes that he “blatantly” disobeyed a justified  no  contact
order (as stated in the  Article  15),  then  this  permanent  stain  is  an
appropriate consequence of his insubordination, and the  OPR  should  remain
in his records.  On the other hand, if the Board considers his  professional
record, the testimony provided by Lt Col C---,  his  revocation  of  the  no
contact of order, and trusts his word as an  officer  and  a  gentleman,  he
humbly requests that this  permanent  stain  be  removed  from  his  record.
Doing so has no adverse effect on the United States  Air  Force  because  no
one will know that  this  occurred  other  than  the  Board,  his  immediate
family, and anyone else the Board deems appropriate.

The applicant’s response is at Exhibit I.

_________________________________________________________________

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 an error or injustice.  The  applicant’s  contentions  and  the
supporting statement from the rater of the contested  OPR  are  duly  noted;
however, after thoroughly reviewing the evidence of record the  majority  of
the Board is not persuaded the contested report should be declared void  and
removed from his records.  The majority of  the  Board  does  not  find  the
applicant’s assertions, in and by  themselves,  sufficiently  persuasive  to
override the available evidence  and  the  rationale  provided  by  the  Air
Force.  The rater of the contested report indicated he  concurred  with  the
removal of the report; however, he never indicated the contested  report  is
inaccurate.  He  further  indicates  considering  all  disciplinary  actions
taken in the applicant’s case, the applicant’s outstanding  service  to  the
United States Air Force prior to and after the period in question, and  also
the exemplary manner in which he [the applicant] has overcome  all  personal
obstacles related to this matter  he  did  not  object  to  the  applicant’s
request to have the contested report removed from  his  record.   While  the
applicant indicates the contested OPR does not reflect the  true  nature  of
his  judgment  and  performance  and  the  total  punishment  received   was
excessive - the Board notes the applicant was punished for  violating  a  no
contact order.  The comments in the contested OPR refers  to  the  violation
of the order.  The majority of the Board believes the rater was in the  best
position to accurately assess the performance of the  applicant  during  the
contested time period.  In addition, it is  further  noted,  evaluators  are
strongly encouraged to comment in performance  reports  on  misconduct  that
reflects a disregard of the law, whether civil law or the  Uniform  Code  of
Military Justice (UCMJ), or when adverse actions such as an Article 15  have
been taken.  Therefore, in the absence of  evidence  to  the  contrary,  the
majority of the Board finds no compelling basis to  recommend  granting  the
relief sought.

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(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

The majority of the panel finds insufficient evidence of error or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2005-
01451 in Executive Session on 3 November 2005, under the provisions  of  AFI
36-2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Ms. Sue A. Lumpkins, Member
                 Mr. James L. Sommer, Member

Ms. Lumpkins and Mr. Sommer recommended  denial  of  the  application.   Mr.
Peterson  recused  himself.   The   following   documentary   evidence   was
considered:

   Exhibit A.  DD Form 149, dated 18 April 2005, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPP, dated 2 June 2005.
   Exhibit D.  Letter, SAF/MRBR, dated 10 June 2005.
   Exhibit E.  Letter, Applicant, dated 21 June 2005.
   Exhibit F.  Letter, AFBCMR, dated 11 July 2005.
   Exhibit G.  Letter, USAF/JAA, dated 11 August 2005.
   Exhibit H.  Letter, AFBCMR, dated 24 August 2005.
   Exhibit I.  Letter, Applicant, dated 27 August 2005.




                       RICHARD A. PETERSON
                       Panel Chair








MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                          FOR CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  The majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                       JOE G. LINEBERGER
                       Director
                       Air Force Review Boards Agency