RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-01168
                                             INDEX CODE:  100.00
      XXXXXXX                           COUNSEL:  J. RANDALL HICKS

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  19 October 2007


________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on 21  February  2005;  the  Unfavorable  Information
File (UIF); the Officer Performance Report (OPR), closing 16  January  2005;
the Promotion Recommendation Form  (PRF)  prepared  for  the  Calendar  Year
2005D (CY05D) Captain Promotion Process be declared void;  and  that  he  be
made whole from its collateral consequences, to include restoration  of  his
5 April 2005 promotion to the grade of captain.

________________________________________________________________

APPLICANT CONTENDS THAT:

He is not guilty of the offense; harmful procedural error occurred;  he  was
removed from the promotion list due to command  influence;  he  was  treated
differently  than  others  similarly  situated;  new   evidence   has   been
discovered that was not previously considered; and that the  Article  15  is
unduly severe and unjust under all the circumstances of his case.

Since the dates of the alleged adultery  were  changed  after  the  original
appeal process, the Article 15 should have  been  set  aside.   Furthermore,
one of the accusers had various conflicts with him during  their  deployment
and there are numerous conflicts in his statement.    The  Command  Directed
Investigation (DCI) was  also  flawed  since  the  second  accuser  was  re-
interviewed even though she had previously  asserted  her  right  to  remain
silent and obtained counsel, in violation of  her  Fifth  Amendment  Rights,
and was unduly influenced.  In addition, he cites AFBCMR 98-00094, in  which
the Board provided favorable relief based on a lack of independent  evidence
supporting the statements of the accusers and the inconsistencies  contained
therein.

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

________________________________________________________________



STATEMENT OF FACTS:

On 30 June 2004, the applicant was selected for promotion to  the  grade  of
captain during the Calendar Year 2004B (CY04B) Captain Promotion Process.

Applicant received a referral OPR rendered for the  period  17 January  2004
through 16 January 2005, based on an “unacceptable”  rating  in  Section  V,
Item 3, Professional Qualities, and comments in Section  VI,  Rater  Overall
Assessment, pertaining to  his  adultery  with  a  married  officer  in  the
squadron and making false official statements to an investigating officer.

On 27 January 2005, applicant’s assignment to the 56th Rescue  Squadron  was
cancelled.

On 3 February 2005, the commander notified the applicant of  his  intent  to
initiate nonjudicial punishment under Article 15  of  the  Uniform  Code  of
Military Justice (UCMJ) for violating Articles 134 and  107.   Specifically,
for committing adultery from 15 March 2004 to 1 August 2004,  and  rendering
false official statements on divers occasions  between  19  and  30 November
2004.  After consulting with legal counsel, he waived his right to a  court-
martial and accepted nonjudicial punishment proceedings.   After  considered
the applicant’s oral and written  presentation,  on  21 February  2005,  the
commander determined he did commit one or more of the alleged  offenses  and
imposed punishment consisting of a forfeiture of $2,163.00 per month  for  a
period  of  two  months  and  a  reprimand.   The  applicant  appealed   the
punishment on 28 February 2005, which was denied on 19 April 2005.

On 28 February 2005, the  commander  notified  the  applicant  that  he  was
recommending his name be removed from the promotion list to captain.  On  28
September 2005, the Acting Secretary of the Air Force directed his  name  be
removed from the list of officers selected for promotion  during  the  CY04B
Capt Promotion Process.

Based on incorrect date information in the  adultery  specification  of  the
Article 15, the applicant filed an Inspector General complaint, and  he  was
ultimately provided an opportunity for a  new  appeal  of  the  Article  15.
After reviewing the applicant’s written presentation, on  27 February  2006,
his second appeal was denied.

Applicant received a “Do not Promote” recommendation  on  the  PRF  prepared
for the CY05D Captain Promotion Process.

Based on two nonselections for promotion,  he  was  retired  on  1 September
2006, in the grade of first lieutenant.

________________________________________________________________


AIR FORCE EVALUATION:

AFLOA/JAJM recommends the application be denied and  states,  in  part,  the
applicant has provided no evidence  of  a  clear  error  or  injustice.   By
electing to resolve the allegation in the nonjudicial forum,  the  applicant
placed the responsibility to decide whether he  had  committed  the  offense
with his commander.  The commander was  the  fact-finder  and  his  judgment
should be given due deference for assessing witness  credibility.   Although
the applicant feels he  was  treated  differently,  in  their  opinion,  the
commander graduated punishment based on his perception  of  the  credibility
of the parties and their acceptance of  responsibility  for  their  actions.
Not convinced the applicant was being truthful, the commander  punished  him
more severely.  Contrary to the opinion  of  the  applicant’s  counsel,  the
nonjudicial punishment action is not thrown out with prejudice,  but  a  new
action may be initiated.  Further, there is  no  preclusion  from  correctly
accomplishing the appeal, even on some later date as a  remedy  to  properly
repair the harmless error.  The applicant was  provided  an  opportunity  to
submit  additional  matters  to  the  commander;  however,  he   essentially
provided no new information that had not  previously  been  in  the  record.
Although a more detailed statement from the woman involved  in  the  conduct
was obtained by the commander when he imposed punishment, it is assumed  the
commander acted in good faith and provided  the  applicant  a  copy  of  the
statement at the earliest opportunity, albeit  during  the  presentation  of
the punishment.  As such, the applicant had an opportunity  to  address  her
allegations.   Moreover,  while  not  an  ideal  situation,   the   detailed
statement’s content’s essentially adds no surprise evidence or  allegations.
 The applicant submits copies of the cellular phone records  of  his  former
squadron in support of his contention that this individual  placed  numerous
calls to the woman involved in the incident to urge her to make a  statement
to the commander concerning her  relationship  with  the  applicant.   While
these records show that one of the witnesses against him  called  the  woman
involved in the incident, they do not explain the substance  of  the  calls,
nor does the applicant explain their significance.  Furthermore,  the  calls
go back over a period of months, not just the time the woman was alleged  to
have been nagged to make a statement.

The AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPPP and  AFPC/DPPPEP  recommends  denial  of  applicant’s  request  to
remove any references to the Article 15 from his OPR and PRF.   However,  if
it is determined the charges against him are indeed false  and  the  Article
15 proceedings are inappropriate, the comments should be  removed  from  the
OPR and PRF.

The AFPC/DPPP evaluation is at Exhibit D.


AFPC/DPPPO recommends the application be denied, and states, in  part,  that
applicant’s name  was  removed  from  the  list  of  officers  selected  for
promotion  during  the  CY04B  Captain  Promotion  Process  by  the   Acting
Secretary of the Air Force for committing adultery with a married member  of
the unit and making a false statement.  Prior to this action he was  advised
by his commander that  such  action  was  being  recommended,  provided  all
supporting documentation,  provided  legal  counsel,  and  given  sufficient
opportunity to respond.  Further,  the  removal  package  received  numerous
legal reviews by base, Major Air  Command  (MAJCOM),  and  Air  Force  legal
offices and was found to  be  legally  sufficient  prior  to  the  Secretary
directing   the   removal.    Commanders   question   promotion   when   the
preponderance  of  the  evidence  shows  the  officer   is   not   mentally,
physically, morally, or professionally qualified to perform  the  duties  of
the  higher  grade.   Early  identification  of  the  officer   and   proper
documentation are essential in taking promotion propriety action.   Further,
Air Force policy states that formal rules of evidence  do  not  apply  to  a
promotion propriety action.

The AFPC/DPPPO evaluation is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of the appeal, the 347th Rescue  Wing  Inspector  General
provides a statement in which he states, in part, that the Command  Directed
Investigation was handled prejudicially and mismanaged, i.e.,  the  squadron
commander directed the investigating  officer  (IO)  not  interview  certain
witnesses, allowed himself to be guided by the original accuser  on  how  to
proceed with the investigation, and sent the original accuser on an  illegal
TDY to notify the husband of  the  second  accuser  of  his  wife’s  alleged
adultery.  He further states the  credibility  of  the  accusers  should  be
questioned (Exhibit G).

Counsel states the evaluation from the Military  Justice  Section  does  not
address the issue of  whether  the  “second  appeal”  was  within  the  same
proceeding as defined in AFI 51-202, paragraph 6.9.  Since an Article 15  is
“final” when the Staff Judge Advocate (SJA) or designated authority  reviews
the proceedings for legal sufficiency and the applicant did not receive  the
corrected copy until seven months after  the  Article  15,  the  Article  15
should be set aside.  The altering of the charged time frame is  not  simply
an administrative or clerical  error.   To  the  contrary,  it  changed  the
entire nature of the charge and the effectiveness of his  defense.   In  his
original appeal, the applicant had provided a detailed response in which  he
accounted for virtually every moment during the TDY, as opposed to the  four
and a half month-affair alleged to have occurred between 15 March  2004  and
1 August 2004.  As such, he was not given an opportunity to  defend  himself
against the charge that was before the  appellate  authority.   Furthermore,
additional evidence was obtained after the  initial  investigation  and  was
only given to him after he had been told that he was guilty.  Therefore,  he
was denied any meaningful chance to respond to all of the evidence.   It  is
patently absurd to assume the earliest  opportunity  the  commander  had  to
provide the additional evidence to the applicant was when he  informed  him,
of the findings.  In this respect, counsel  notes  that  it  is  up  to  the
commander to determine whether an offense has been committed  and  there  is
no time limit for doing so.  The commander could have provided the  evidence
to the applicant and gave him additional time to respond before  a  decision
was reached.  Although the Military Justice  Section  opines  the  applicant
had an opportunity to respond to the additional evidence on appeal,  he  had
a right to examine it before the imposition of  punishment.   The  governing
AFI does not state such information  can  be  provided  before  the  appeal.
This is especially true since the appeal was virtually  meaningless  due  to
the  fact  the  charge  was  materially  changed  without  the   applicant’s
knowledge.

An  IG  investigation  conducted  after   the   Article   15   substantiated
allegations the commander allowed the misuse and abuse of a government  cell
phone by a squadron member and directed the member take an improper  TDY  to
XXXXXX.

Applicant’s rating chain is obviously not going to support altering the  OPR
as long as the Article 15 is in place.

Counsel’s complete submission, with attachments, is at Exhibit H.

On 18 December 2006, a complete copy of the Removal from the Promotion  List
Package was provided to the applicant’s  counsel  for  review  and  comment.
Applicant’s counsel has provided a response in which  he  states,  in  part,
the applicant’s removal action was based upon  the  fatally  flawed  Article
15.  The applicant was materially prejudiced by the  dates  of  the  alleged
adultery  being  later  changed  without  his  knowledge  because   he   had
previously submitted a response addressing  the  first  set  of  dates.   As
such, it should also be removed from  the  applicant’s  record.   The  legal
reviews of the removal action incorporated the erroneous  dates  of  alleged
adultery and therefore, also incorporated one of the fatal flaws present  in
the Article 15.  Justice  requires  the  Article  15  be  removed  from  the
applicant’s records and for  him  to  be  made  whole  from  its  collateral
consequences, to include the removal action.

Counsel’s complete response, with attachments, is at Exhibit J.

________________________________________________________________

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.  In  cases  of  this  nature,  we  are  not
inclined to disturb the judgments of commanding officers, absent  a  showing
of an abuse of their discretionary authority, as they  are  usually  in  the
best position to assess a member’s credibility.   Moreover,  our  reluctance
is especially keen in cases such  as  this;  wherein,  an  Acting  Secretary
removed the applicant’s  name  from  the  CY04B  Captain  Promotion  Process
Selection list.  Undoubtedly, he carefully considered the entire  case  file
before rendering his decision.   However,  after  thoroughly  reviewing  the
evidence of record and noting the subsequent  correspondence  received  from
the XXXX Wing Inspector  General  in  support  of  the  applicant’s  request
[albeit not in an official capacity], we find that  relief  is  appropriate.
In this respect, we note the only evidence against the  applicant  were  two
statements from fellow officers.  The first accuser, a male, who had  issues
with the applicant and a motive to retaliate against him  for  past  actions
and the second accuser, a female, who  later  admitted  to  an  affair  with
another officer and has indicated that she was  pressured  into  implicating
the applicant to save herself.   Given  the  lack  of  independent  evidence
supporting the statements of these individuals  and  noting  the  vague  and
broad nature of the allegations contained therein, we believe serious  doubt
has  been  raised  as  to  the  veracity  of  the  allegations  against  the
applicant.  The XXX Wing  IG  states  the  Command  Directed  Investigations
(CDIs), upon which the charges levied  against  the  applicant  were  based,
were fatally flawed, mismanaged, and handled prejudicially.  He  provides  a
plethora  of  disturbing  examples,  to  include  the   squadron   commander
directing  the  investigating  officer  (IO)  to   not   interview   certain
witnesses; allowing himself to be guided by the original accuser on  how  to
proceed with the investigation; and  sending  the  original  accuser  on  an
illegal TDY to notify the husband  of  the  second  accuser  of  his  wife’s
alleged infidelity.  He states the MAJCOM  Vice-Commander  acknowledged  the
first CDI was botched and directed the wing conduct  another;  however,  the
new IO also failed to interview at least three key witnesses with  pertinent
information.  The evidence before us also suggests the original accuser  had
unresolved issues with the applicant over a  deployment  incident  when,  as
the applicant’s wingman, he became fearful of flying  and  broke  formation.
During the mission debriefing, the  applicant  called  the  accuser  on  the
carpet for breaking formation, embarrassing  him  in  front  of  his  peers.
Further, since it was his second such incident in six months, the  applicant
recommended he meet a Flying Evaluation Board (FEB).  It also  appears  that
during the deployment the original accuser  had  stolen  a  prescribed  drug
(Ambien) from the applicant’s nightstand, which the applicant  made  public.
After this occurred, the second accuser was returned home,  and  when  asked
regarding a rumor that had surfaced during a wing  level  meeting  that  the
second accuser was having an  affair  with  Captain  XXXX,  he  alleged  the
applicant was the one having  the  affair  with  her.   What  we  find  more
shocking, however, is that according to the Wing IG,  the  original  accuser
himself,  while  being  married  with  two  children,  had   an   adulterous
relationship with  an  officer  candidate  during  Officer  Training  School
(OTS); later divorced his wife; and  married  the  officer  candidate,  with
whom he had the affair.  In view of this, it  would  appear  the  unresolved
issues the original accuser had with the applicant  concerning  their  prior
deployment may very well have been a  major  motivating  factor  behind  his
actions.  We also note the second accuser, when  originally  presented  with
the allegations, refused to make  a  statement  and  requested  to  see  her
attorney.  She then denied any relationship with the  applicant  or  Captain
XXXX; however, after more than 60 phone  calls  from  the  original  accuser
over the course of a  two-week  period  urging  her  to  save  herself;  her
husband being told that she had allegedly committed  adultery;  and  several
discussions with  the  commander;  she  rendered  a  brief  statement  on  5
December 2004, indicating that  she  had  a  sexual  relationship  with  the
applicant from 14 to 19 September 2004.  The second accuser  later  provided
a more lengthy statement to the commander, the timing of which  is  unknown;
however, it is void of any specific  dates/times  and  contains  only  vague
references to the evenings of  the  September  2004  TDY.   Even  AFLOA/JAJM
concedes the statement’s contents essentially added no surprise evidence  or
allegations.  We find the statement from Captain XXXX, rendered  during  the
applicant’s initial  appeal  of  his  nonjudicial  punishment,  particularly
importance and give it great weight, since this individual  had  nothing  to
gain my coming forward and incriminating himself.  Moreover, it  appears  he
was responsible for getting the second accuser to admit to their  affair  to
the commander, and did so at great personal expense, i.e., Referral OPR  and
Article 15.  Capt XXXX‘s statement indicates that on  5 December  2004,  the
second accuser told him that  she  was  emotionally  drained  and  had  been
bullied into making a statement against the applicant;  that  she  felt  all
they [command leadership] really wanted was him [the  applicant];  and  that
if she complied, her lie about  their  [second  accuser  and  Captain  XXXX]
relationship would not catch up with her.  Captain XXXX further stated  that
on 6 December 2004, he and the second accuser told the commander they had  a
relationship during the period April to August 2004.  Afterwards,  he  asked
the second accuser why  she  did  not  set  the  record  straight  with  the
commander concerning the applicant and she said that it was too  late  since
she had been given the applicant’s cancelled assignment and did not want  to
anger anyone by changing  her  story.   While  AFLOA/JAJM  opines  they  can
assume the commander acted in good faith by providing the applicant  a  copy
of the second accuser’s more lengthy statement at the earliest  opportunity,
albeit during the presentation of the punishment, in  consideration  of  the
commander’s other actions in this case, we are not inclined to take  such  a
leap of faith.   Especially,  when  considering  that  after  the  commander
reviewed the applicant’s lengthy, detailed response, in which  he  accounted
for virtually every moment of his  whereabouts  during  the  September  2004
TDY, and he heard the confessions of the second  accuser  and  Captain  XXXX
concerning their affair during the period April to  August  2004,  he  still
concluded the applicant committed one  or  more  of  the  alleged  offenses,
imposed the punishment, and  later  arbitrarily  changed  the  specification
dates, without advisement, prior to the applicant’s  appeal.   Although  the
applicant was provided a second appeal of the Article  15,  the  commander’s
actions during the nonjudicial proceedings speaks volumes  as  to  his  pre-
disposition concerning the applicant’s guilt.  Other than the statements  of
the two accusers, there is no official documentation or other  corroborative
evidence to substantiate the allegations against  the  applicant.   Given  a
totality of the evidence presented,  and  noting  this  officer’s  otherwise
unblemished record, to include deployments to Afghanistan and Iraq,  we  are
convinced the Article  15  and  the  resultant  negative  personnel  actions
should be removed from his records in the interest of  equity  and  justice.
Therefore, in view of the above, we recommend his records  be  corrected  to
the extent indicated below.

4.  In view of the above determination that the applicant’s name should  not
have been removed from the CY04B  Capt  Promotion  Process  Selection  list,
once his  records  are  corrected  the  PRF  prepared  for  the  CY05D  Capt
Promotion Process will not exist, nor will the basis  for  his  1  September
2006 retirement, i.e., two nonselections for promotion.

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.    The nonjudicial punishment under the provisions of  Article  15,
Uniform Code of Military Justice, initiated on 3 February 2005  and  imposed
on 21 February 2005, be declared void and expunged  from  his  records,  and
all rights, privileges and property of which he may have  been  deprived  be
restored.

      b.    The Company Grade  Officer  Performance  Report,  AF  IMT  707B,
rendered for the  period  17  January  2004  through  16  January  2005,  be
declared void and removed from his records

      c.    The Promotion Recommendation Form (PRF), AF  IMT  709,  prepared
for the Calendar Year 2005D (P0305D) Captain Promotion Process  be  declared
void and removed from his records.

      d.    On 28 September 2005, his name was not removed from the list  of
officers  selected  for  promotion  by  the  Calendar  Year  2004B   Captain
Promotion Process.

      e.    He was not retired effective  1  September  2006,  but  on  that
date, he continued on active  duty  and  was  ordered  Permanent  Change  of
Station (PCS) to his home of selection or home  of  record  pending  further
orders.

________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2006-
01168 in Executive Session on 27 February 2007, under the provisions of  AFI
36-2603:

            Mr. John B. Hennessey, Panel Chair
            Ms. Patricia R. Collins, Member
            Ms. Teri G. Spoutz, Member

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

     Exhibit A.  DD Form 149, dated 12 Apr 06, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memo, AFLOA/JAJM, dated 13 Jun 06.
     Exhibit D.  Memo, AFPC/DPPP, dated 31 Jul 06.
     Exhibit E.  Memo, AFPC/DPPPO, dated 6 Sep 06.
     Exhibit F.  Letter, SAF/MRBR, dated 15 Sep 06.
     Exhibit G.  Letter, 347th RQW/IG, dated 28 Sep 06.
     Exhibit H.  Letter, Counsel, dated 12 Oct 06.




                                   JOHN B. HENNESSEY
                                   Panel Chair


AFBCMR BC-2006-01168




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.   The nonjudicial punishment under the provisions of Article
15, Uniform Code of Military Justice, initiated on 3 February 2005 and
imposed on 21 February 2005, be, and hereby is, declared void and expunged
from his records, and all rights, privileges and property of which he may
have been deprived be restored.

            b.   The Company Grade Officer Performance Report, AF IMT 707B,
rendered for the period 17 January 2004 through 16 January 2005, be, and
hereby is, declared void and removed from his records

      c.    The Promotion Recommendation Form (PRF), AF IMT 709, prepared
for the Calendar Year 2005D (P0305D) Captain Promotion Process be, and
hereby is, declared void and removed from his records.

      d.    On 28 September 2005, his name was not removed from the list  of
officers  selected  for  promotion  by  the  Calendar  Year  2004B   Captain
Promotion Process.

      e.    He was not retired effective 1 September 2006, but on that
date, he continued on active duty and was ordered Permanent Change of
Station (PCS) to his home of selection or home of record pending further
orders.











            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency