RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02852
            INDEX CODE:  107.00, 131.02
            COUNSEL:  Mr. David P. Price
            HEARING DESIRED:  NO

      MANDATORY CASE COMPLETION DATE: 23 Jul 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.   All  entries  and  references  related  to  the   deferral   and   non-
recommendation for promotion be removed from his records.

2.  His promotion selection to  the  grade  of  senior  master  sergeant  be
reinstated effective 1 Jun 03.

3.  The 18 Dec 03, letter of denial of his  Air  Force  Good  Conduct  Medal
(AFGCM) be removed from his records.

4.  His AFGCM start date of 20 Dec 00 be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel provides a resume of applicant's personal and military  history  and
a timeline of the events  that  led  to  the  actions  under  consideration.
Counsel states that the final action to deny  his  promotion  was  taken  in
September   2003   based   upon   misconduct   occurring   sometime   during
August/September 2001.  His commander  at  the  time  became  aware  of  the
misconduct shortly after a meeting between the applicant  and  the  437  MSS
Commander in August 2002, approximately  11  months  after  the  misconduct.
The  final  action  on  his  promotion  occurred  approximately   one   year
thereafter, in September 2003.  From the time  he  reported  the  misconduct
and during several meetings with 437 MSS/CC,  437  CES/CC,  and  the  Deputy
Staff Judge Advocate, he was assured that no adverse actions would be  taken
against him.  He was led to believe that because  the  allegations  came  to
light through his own admission, as a result of harassment  and  threats  on
the part of Second  Lieutenant  M----,  and  because  the  relationship  was
short, in the past, and ended by him, there was no intention to  pursue  any
action against him.

Regardless of the assurances he received a Letter of Admonition  (LOA)  from
the 437 CES/CC. In December 2002, he requested  withdrawal  from  the  First
Sergeant career field and transferred from  the  437  CES.   He  received  a
stellar Enlisted Performance Report (EPR) for the  period  July  16  through
December 29, 2002 and returned to the maintenance career field reporting  to
the 437 MOS.  In January 2003, he fully disclosed  his  situation  with  his
new commander and she  expressed  her  pleasure  with  his  arrival  at  the
squadron.  Shortly  thereafter,  the  commander  allowed  him  to  test  for
promotion.

He continued to cooperate with  authorities  investigating  the  allegations
against  Lieutenant  M----  and  was  granted  testimonial   immunity   from
prosecution under the UCMJ.  Prior to the immunity  being  granted,  he  met
with Major General W----, 21 AF/CC.   He  was  assured  that  he  would  not
suffer any adverse action in exchange for his cooperation in this case.   He
also met with the 437th Deputy Staff Judge  Advocate  and  was  advised  the
immunity "covered everything" leading him to understand  this  included  any
administrative  action.   His  assurances  were  further  confirmed  by  his
commander's  certification  of  his   reenlistment   eligibility   and   his
subsequent reenlistment in the Air Force.

On 17 Mar 03, the 03E8 promotion results were published.   He  was  selected
and received letters of congratulations from Major R---- and Colonel  B----.
 On 28 Mar 03, he acknowledged and  accepted  his  promotion.   At  no  time
prior to or after the promotion results were published was he  advised  that
his promotion may be in jeopardy.  He  was  publicly  congratulated  by  his
peers and  subordinates  at  a  gathering  presided  over  by  the  Squadron
Commander, where she personally presented him with his stripes.   Two  weeks
later, he was called to a meeting with his commander, wherein he  was  given
the first indication that adverse  action  was  being  contemplated  against
him.  On 5 May 03, his commander prepared a recommendation for  deferral  of
his promotion.  Clearly, deferral action was not  appropriate  in  his  case
since he did "meet  acceptable  behavior"  and  "performance  standards"  as
evidenced by his EPR, his  testing  for  promotion,  his  reenlistment,  and
selection  for  promotion  with  congratulatory  letters  and   enthusiastic
gathering - all  knowing  of  the  past  misconduct.   On  30  May  03,  the
commander then issued  a  non-recommendation  for  promotion  based  on  the
misconduct on August/September 2001 and the LOA  issued  on  4  Oct  02.   A
final determination was not made until  September  2003.   Along  with  this
action, he was denied the AFGCM for a qualifying term  of  service  and  his
creditable service start date was adjusted.

He reported his own misconduct because of harassing  and  threatening  phone
calls to his family.  With the possibility  of  destroying  his  career,  he
came forward.  Granted his statements  were  voluntary,  but  only  for  the
reason he was assured of no repercussions in making the statement - yet  his
own statements were used against  him  in  denying  him  promotion  and  the
AFGCM.  Time and time again he was advised that if he  told  the  truth  and
cooperated with authorities, he would not suffer  any  adverse  action.   In
making his statements he was never advised of his rights under  Article  31,
UCMJ.  These rights were usurped by the misleading promises  of  no  adverse
action.  Certainly his statements could not be used against him  criminally,
but were used against him administratively.  Although he  was  surprised  by
the LOA he did not rebut it believing that  if  he  accepted  responsibility
for his conduct, he would be allowed to move forward and that  nothing  else
would happen to him.

In  support  of  his  request,  applicant  provided  his  counsel's   brief,
documents  extracted  from  his  military   personnel   records,   documents
extracted from the military personnel data system, copies of his awards  and
decorations, copies of his EPRs, character references, documents  associated
with his LOA,  documentation  associated  with  his  promotion  testing  and
promotion   selection,   his   Testimonial   Immunity,   email   communiqué,
documentation   associated   with   his   promotion   deferral   and    non-
recommendation, his AFGCM denial letter, documentation associated  with  his
FOIA request,  and  recognition  letters.   His  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  29
Dec 82.   He  has  been  progressively  promoted  to  the  grade  of  master
sergeant, having assumed that grade effective and with a date of rank  of  1
Jul 96.

In August 2002, while serving as a First  Sergeant  assigned  to  the  437th
CES, applicant disclosed to Lieutenant Colonel C----, Commander  437th  MSS,
that he had been in an  improper  relationship  with  Lieutenant  M----,  an
officer assigned to his squadron.  Applicant  volunteered  this  information
in the hopes Colonel C---- would stop Lieutenant M----  from  harassing  him
and his wife.  Colonel C---- shared the  information  with  the  applicant's
commander, Lieutenant Colonel D----.  On 4 Oct 02, Colonel D---- issued  the
applicant an LOA for the "adulterous sexual  relationship."   The  applicant
was transferred from the 437th CES to the 437th MOS on 30 Dec 02.  On 3  Feb
03, applicant was given testimonial immunity by the 21 AF/CC and ordered  to
provide  information  in   the   investigation   into   Lieutenant   M----'s
misconduct.  On 13 Feb 03, applicant's request for removal  from  the  First
Sergeant career field was approved and on 25 Feb 03,  he  reenlisted  for  a
period of four years.  A  change-of-reporting-  official  EPR  was  rendered
with a close-out date of 29 Dec 02 and an overall  promotion  recommendation
of "5."

On 10 Dec 02, applicant was assigned a promotion test  date  of  24 Jan  03.
Applicant was considered and  tentatively  selected  for  promotion  to  the
grade of senior master sergeant during the 03E8 promotion cycle.   Promotion
results were released on 17 Mar 03.   He  was  assigned  promotion  sequence
number 342 which incremented on 1  Jun  03.   On  5  May  03,  Major  R----,
Commander 437 MOS, deferred his promotion until 30 Sep  03  because  of  her
concern that he was "not prepared to assume the more senior rank  of  senior
master sergeant."  On 30 May 03, Major R---- non-recommended  the  applicant
for promotion.  On  19  Sep  03,  the  non-recommendation  was  approved  by
Colonel T----, AMC/DP.  On 18 Dec 03, the applicant  was  denied  the  AFGCM
for the period 29 Dec 00 through 28 Dec 03.

He was subsequently considered and not selected  for  promotion  during  the
04E8 and 05E8 cycles.  He has competed for promotion during the 06E8  cycle;
however, as of this date, results of the 06E8 cycle have not been released.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPR recommends denial.  DPPPR states in accordance with AFI  36-2803,
paragraph 5.2., the AFGCM is awarded for exemplary conduct during  a  three-
year period of military service.  The AFGCM is not awarded just  because  an
individual did not  have  disciplinary  action  taken  against  him;  it  is
awarded for overall behavior and performance of duty.  The DPPPR  evaluation
is at Exhibit C.

AFPC/DPPPWB recommends denial.  DPPPWB states in  accordance  with  AFI  36-
2502, paragraph 3.2.5, commanders may  defer  promotion  and  pay  past  the
original effective date to determine if airmen meet acceptable  behavior  or
performance  standards.   The  actions  taken  by  the  commander  were   in
accordance with policies  and  procedures.   The  DPPPWB  evaluation  is  at
Exhibit D.

AFPC/JA recommends denial.  JA states the basis for the  deferral  and  non-
recommendation  actions  was  the  applicant's  improper  relationship  with
Lieutenant M---- and how it raised serious doubts about his fitness for  the
increased responsibility he would face as a SMSgt.  There is  no  reason  to
doubt the veracity of his  confession  of  his  improper  relationship  with
Lieutenant M----.  This admission, moreover, established  all  the  evidence
needed  for  the  promotion  deferral  and  non-recommendation.   Tremendous
deference is extended to the decisions  made  by  commanders  and  promotion
authorities on these actions and there is no reason to believe there was  an
abuse of authority in this case.

The applicant's primary contention is that the promotion  propriety  actions
taken against him occurred  notwithstanding  repeated  assurances  "that  no
adverse action would be  taken  against  him"  if  he  cooperated  with  the
investigation concerning the allegations he presented  on  his  relationship
with Lieutenant M----.  He claims "he was led to believe  that  because  the
allegations came to  light  through  his  own  admission,  as  a  result  of
harassment and threats on the part of  Lieutenant  M----,  and  because  the
relationship was short, in  the  past,  and  ended  by  him,  there  was  no
intention to pursue any action against him."  He  further  argues  that  "he
was never advised of  his  rights  under  Article  31,  UCMJ,  in  making  a
statement."  He  makes  repeated  claims  of  various  government  officials
making assurances that no adverse actions -  criminal  or  administrative  -
would be taken against him as a  result  of  his  admission  to  having  the
improper relationship.  It is an axiomatic principle of  administrative  law
that Federal officials charged with official duties are  presumed  to  carry
out those responsibilities according to law.  He notably  fails  to  present
any evidence to support his self-serving  assertions  that  these  officials
made promises which would have exceeded their  authority.   These  officials
are therefore entitled to  the  presumption  that  they  carried  out  their
duties properly and according to law and his argument on this  point  should
be dismissed as merit-less.

Regarding his claim he was not read his Article 31  rights,  JA  states  the
UCMJ Article 31 provides:

       No person subject to  the  UCMJ  may  interrogate,  or  request  any
       statement from an accused  or  a  person  suspected  or  an  offense
       without first...advising him that he  does  not  have  to  make  any
       statement regarding the offense...and that any statement made by him
       may be used as evidence against him in a trial by court-martial.

His contention that the actions should be  overturned  because  he  was  not
provided with rights advisement completely lacks merit.  Colonel  C----  did
not interrogate or request the applicant  make  an  incriminatory  statement
about  his  improper  relationship  with  Lieutenant  M----;  the  applicant
disclosed this misconduct as he sought assistance in  stopping  the  alleged
harassment.   His  original  admission  was  unsolicited,  spontaneous   and
voluntary; therefore, Colonel C---- was not required to provide him  with  a
rights advisement at that time.   His  argument  that  he  was  entitled  to
Article 31 rights advisement during his  interviews  after  he  was  granted
testimonial immunity is incorrect.  It is well established  in  law  that  a
witness may not assert the  privilege  against  self-incrimination  if  "the
witness is not subject to criminal penalty as a  result  of  any  answer  by
reason of immunity..."  Assuming arguendo that the  admissions  occurred  in
violation of Article  31,  he  is  not  entitled  to  the  remedy  sought  -
exclusion for the purposes of the promotion propriety actions.   The  limits
of the exclusionary rule extend only to  the  self-incriminating  statements
made by a member of the military without proper rights advisement  and  used
against that person in a trial by court-martial.

While  it  appears  the  actions  taken  against  the  applicant  after  his
disclosure of the affair appear inconsistent, there is no basis to  overturn
the promotion deferral and  non-recommendation  decisions.   Commanders  are
afforded tremendous deference in administrative actions such as these.   The
failure  of  the  previous  commander  to  note  the  applicant's   improper
relationship in the performance report covering the period when he made  the
admission does not tie the hands of any  successor  commanders  from  taking
into account the applicant's misconduct when  considering  actions  such  as
whether he should be permitted to reenlist and be promoted.   Major  R----'s
decision to allow him to reenlist can only be interpreted as an  affirmation
that she did not believe the  conduct  was  "career  ending."   Perhaps  she
could have acted quicker and less awkwardly on deciding  whether  she  would
seek to stop his promotion to SMSgt during cycle 03E8, but  substantial  and
credible evidence  existed  of  misconduct  casting  serious  doubt  on  his
fitness for advancement in rank.

He argues denial of the AFGCM was "unfair  and  unwarranted."   As  was  the
case with  his  LOA  and  promotion  non-recommendation,  the  standard  for
analyzing the propriety of the AFGCM denial is  whether  the  commander  was
acting reasonably.  JA submits she was.  A First  Sergeant  engaging  in  an
adulterous relationship with  an  officer  assigned  to  his  unit,  as  the
applicant did,  is  exhibiting  behavior  far  lower  than  the  "exemplary"
conduct required to earn the AFGCM.  The JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states this case is more  than  mere  simple  "inconsistencies"  and
"awkwardness" in the handling of the applicant's  promotion  denial  as  the
evaluator suggests.  It is about being upfront and  evenhanded  in  applying
the regulations.  It is clear that the final action to  deny  his  promotion
was taken approximately one year after the squadron gained knowledge of  the
misconduct.  Counsel reiterates  his  previous  contentions  and  adds  that
throughout the events he was never advised that any  further  promotion  was
in jeopardy, and continued to be encouraged by his chain of  command,  which
it is now  evident  was  most  insincere  with  its  contemplation  to  take
additional adverse actions.  The applicant's position  is  unchanged  -  the
denial of his promotion and AFGCM was unfair and unwarranted.

Applicant has been recently selected  for  special  duty  at  Al-Dhafra  Air
Base, Unit Arab Emirates and received an MSM  (2OLC)  for  outstanding  duty
performance from 30 Dec 02 through 5 Jan 06.

Counsel's complete response, 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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice.

      a.  With respect to the denial of the AFGCM,  the  Board  agrees  with
the Air Force's position that the AFGCM is awarded for overall behavior  and
performance of  duty  during  a  specified  three-year  period.   Given  the
egregious and serious  nature  of  the  applicant's  misconduct  during  the
period in question, it is the opinion of  the  Board  that  his  commander's
decision to deny him the AFGCM and the adjustment  of  his  start  date  was
appropriate.

      b.  Regarding the deferral and  non-recommendation  for  promotion  to
senior master sergeant, evidence has not been  presented  which  would  lead
the Board majority to believe his commander's actions were inappropriate  or
based on anything other than the applicant's  own  misconduct.   It  is  the
Board majority's opinion that since the commander was not confident  in  his
ability to assume the responsibility of the higher  grade  her  decision  to
non-recommend  him  for   promotion   was   appropriate   and   within   her
discretionary authority.  The Board majority finds no evidence of  an  error
in  the  non-recommendation  process  and  is  not  persuaded  by  counsel's
assertions that the action was unjust.   Applicant  points  out  that  final
disposition of his non-recommendation for promotion was taken  approximately
one-year after knowledge of  the  misconduct.   However,  it  is  the  Board
majority's opinion that the timelines involved in  the  promotion  propriety
action were consistent with normal processing procedures for  such  actions.
With respect to applicant's argument regarding the immunity he  was  granted
from prosecution under the Uniform Code  of  Military  Justice,  it  is  the
Board majority's opinion that such immunity  does  not  preclude  succeeding
commanders from taking administrative actions that fall within  the  purview
of  their  authority.   The  Board  majority  is  not   persuaded   by   his
uncorroborated assertions that  he  was  told  otherwise  or  that  evidence
presented successfully refutes the opinions and recommendations of  the  Air
Force offices of primary  responsibility.   Therefore,  the  Board  majority
adopts their rationale and recommendations as  basis  for  their  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
Accordingly, in the absence of evidence to the contrary, the Board  majority
finds no compelling 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.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of  error  or  injustice
concerning his request for promotion to the grade of senior master  sergeant
recommends the application be denied.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2005-02852
in Executive Session on 28 Feb 06, under the provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Renee Collier, Member
      Ms. Josephine Davis, Member

The Board voted to deny the request for award of the Air Force Good  Conduct
Medal.   Mr. Novel  voted  to  partially  correct  the  record  by  granting
reinstatement of applicant's promotion to senior master  sergeant,  but  did
not desire to submit a minority report.  The following documentary  evidence
was considered:

    Exhibit A.  DD Form 149, dated, 29 Aug 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPR, dated 12 Oct 05.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 27 Sep 05.
    Exhibit E.  Letter, AFPC/JA, dated 5 Dec 05.
    Exhibit F.  Letter, SAF/MRBR, dated 9 Dec 05.
    Exhibit G.  Letter, Counsel, dated 18 Jan 06, w/atchs.




                                             MICHAEL J. NOVEL
                                             Panel Chair
AFBCMR BC-2005-02852

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

SUBJECT:    AFBCMR Application of

      I have carefully reviewed all aspects of this case and do not agree
with the opinion of the majority of the panel that the applicant’s request
should be denied in its entirety.

      Applicant requests that his promotion selection to senior master be
reinstated and that he be awarded the Air Force Good Conduct Medal (AFGCM)
for the period 29 Dec 00 through 28 Dec 03.  Applicant contends that after
he disclosed his adulterous relationship with a female officer he was
provided immunity from prosecution in exchange for his cooperation with
investigators.  He contends he was assured on numerous occasions that no
adverse actions would be taken against him.  However, subsequent to his
selection for promotion to senior master sergeant, his gaining commander
non-recommended him for promotion resulting in removal of his selection for
promotion.

      The Board majority agrees with the evaluators and recommends the
applicant’s request be denied in its entirety.  While I am inclined to
agree that the applicant’s behavior during the period in question does not
warrant award of the AFGCM, I believe that some corrective action is
appropriate in this case.  As a result of his misconduct the applicant was
issued a Letter of Admonishment.  I find it noteworthy that shortly
thereafter, he was awarded a Meritorious Service Medal and provided an
Enlisted Performance Report with the highest ratings and recommendations.
Thus, it appears that his claims of promises by senior Air Force officials
of closure may have some merit.  While I find no error in his commander's
decision to remove him from the promotion list I am inclined to believe the
applicant has established reasonable doubt as to whether or not the removal
was unjust and I believe the benefit of any doubt in this matter should be
resolved in his favor.  Accordingly it is my decision that the applicant's
selection for promotion to senior master sergeant be reinstated.









                                  JOE G. LINEBERGER
                                  Director
      Air Force Review Boards Agency
AFBCMR BC-2005-02852




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.  Any and all references to his deferral and non-
recommendation for promotion to the grade of senior master sergeant, be and
hereby are, removed from his records.

            b.  He be promoted to the grade of senior master sergeant
effective and with a date of rank of 1 June 2003.

            c.  The AF Form 911, Senior Enlisted Performance Report,
closing 29 December 2003, be amended in Section IX, Time-In-Grade Eligible,
to reflect "NO."

            d.  Any and all documents prepared subsequent to 1 June 2003 be
amended to reflect the grade of Senior Master Sergeant, rather than Master
Sergeant.






  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency