RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01715
            INDEX CODE:  111.05

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  14 JAN 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The nonjudicial punishment (NJP) imposed under Article 15 be set  aside,
his rank be restored to the grade of master  sergeant,  and  restoration  of
all entitlements.

2.  The Enlisted Performance Report (EPR) closing out on 20 October 2005  be
removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His punishment was based on flawed evidence, a biased legal  review  and  he
was denied a proper opportunity to defend himself against  the  allegations.
He was accused of sexual harassment only after  he  confronted  his  accuser
about her behavior.

In support of his request, the  applicant  provided  a  personal  statement,
four Letters of Support, a copy  of  the  Commander  Directed  Investigation
(CDI), a copy of 21st Space Wing Legal Review of the  CDI,  CDI  Statements,
Additional Rebuttal Statements, Article 15 Rebuttal, NJP Appeal  Letter,  14
Character Reference  Letters,  and  a  copy  of  AF  Form  3070,  Record  of
Nonjudicial Punishment Proceedings.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air  Force  in  the  grade  of  airman
basic on 21 May 1990 for a term of 4 years.  He was  progressively  promoted
to the grade of master sergeant.  On 6 September 2005 a  CDI  was  initiated
and concluded on 22 September 2005.  The  investigating  officer  found  the
evidence legally sufficient to conclude that  sexual  harassment  had  taken
place when the applicant visited his accusers room  the  second  night.   He
was offered, and accepted nonjudicial punishment.  The commander  determined
he had violated Article 93, UCMJ, by maltreating  his  subordinate  when  he
touched her on the legs and back, and Article 92 (dereliction  of  duty)  by
failing to refrain from pursuing an  unprofessional  relationship  with  the
airman as evidenced by his use of his first name  when  he  called  her  the
next day.  His punishment was reduction  in  grade  to  technical  sergeant.
The nonjudicial punishment was imposed on 14 October 2005.

His EPR profile reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

         *20 Oct 05          4
           1 Jun 05          5
          31 Aug 04          5
           5 Jan 04          4
           5 Jan 03          5
          17 Jun 02          5
          20 Aug 01          5
          20 Aug 00          5
          28 Aug 99          5

* Contested report

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states in part,  nonjudicial  punishment
is authorized by Article 15, UCMJ (10USC 815), and governed  by  the  Manual
for Courts-Martial (Part V) and AFI 51-202.  A commander considering a  case
for  disposition  under  Article  15  exercises   personal   discretion   in
evaluating  the  case,  both  as  to  whether  nonjudicial   punishment   is
appropriate and, if so, as to the nature and amount of  punishment.   Unless
a commander’s authority to act in a particular case  is  properly  withheld,
that commander’s discretion is unfettered so  long  as  the  commander  acts
within the limits and parameters of  the  commander’s  legal  authority.   A
commander can dispose of  allegations  against  a  service  member  by  many
means, including no action, administrative action,  nonjudicial  punishment,
or trial by court-martial.  Each commander exercises his  or  her  own  best
judgment, after  reviewing  all  pertinent  facts,  in  determining  how  to
appropriately handle a case in the  best  interests  of  justice.   In  this
case, the commander reviewed the pertinent information  and  determined  the
applicant  had  committed  the  violations.   Because  the  essential  facts
sufficient to that determination  were  undisputed,  it  was  not  necessary
during the investigation to interview every  conceivable  witness  to  parse
out the exact sequence of communications and actions that  occurred  at  the
club on Friday night, the nature of the applicant’s past “tea  parties,”  or
either party’s proclivities with  alcohol.   The  applicant’s  actions  that
weekend speak for themselves.  Moreover, he had the opportunity  to  present
whatever evidence he wished during his  hearing.   Indeed,  he  presented  a
voluminous written rebuttal and  numerous  witness  statements  in  support.
Thus, the commander’s determination was  well-informed  and  well-supported.
There is simply no evidence that an error or injustice has occurred.

The complete evaluation is at Exhibit C.

AFPC/DPPP recommends denial.  DPPP states in part, an evaluation  report  is
considered to represent the rating chain’s best judgment at the time  it  is
rendered.  Once a report is accepted for file, only strong evidence  to  the
contrary  warrants  correction  or  removal  from  an  individual’s  record.
According  to  AFI  36-2406,  paragraph  1.3.1,  “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  Article  15,  Letters  of
Reprimand, Admonishment, or Counseling, or placement on the  Control  Roster
have been taken”.  The evaluators  have  the  options  of  placing  comments
regarding the Article 15 in his report, it is not mandatory.  In this  case,
the evaluators in the rating chain did not mention  anything  regarding  his
Article 15 and they gave him an over  all  rating  of  a  four.   Air  Force
policy is that an evaluation report is accurate as written when  it  becomes
a matter of record.  To effectively challenge an EPR,  it  is  necessary  to
hear from all the members of the rating  chain-not  only  for  support,  but
also for clarification/explanation.  The applicant  has  failed  to  provide
any information/support from the rating chain of the contested EPR.  In  the
absence of information from evaluators, official substantiation of error  or
injustice from the Inspector General (IG) or Military Equal  Opportunity  is
appropriate regarding handling of the investigation to  the  allegations  of
harassment, but not provided in this case.  The burden of proof  is  on  the
applicant.  He has not substantiated the contested report was  not  rendered
in good faith by all evaluators based on knowledge available  at  the  time.
It appears the report was accomplished in direct accordance with  applicable
regulations.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 23  Sep
06, for review and comment within 30 days.  As of  this  date,  no  response
has been received by this office.

_________________________________________________________________

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.  The applicant contends the  contested  EPR
is unjust and should be removed  from  his  records.   After  reviewing  the
documentation provided by the applicant and  the  evidence  of  record,  the
Board finds no persuasive evidence showing  that  the  applicant  was  rated
unfairly, that the report is in error, or that the  evaluators  were  biased
and prejudiced against the applicant.  In our opinion, the  evaluators  were
responsible for assessing the applicant’s performance during the  period  in
question and are presumed to have rendered his evaluations  based  on  their
observation  of  the  applicant’s  performance.   Further,  it  appears  the
commander exercised his best judgment, after reviewing the  pertinent  facts
in determining how to appropriately handle this case in  the  best  interest
of  justice.   Although  the   Board   believes   the   commander   directed
investigation could have been conducted in a  more  thorough  manner,  given
the applicant’s own admission of going to the airman’s room,  alone  and  at
such a late  hour,  we  find  the  nonjudicial  punishment  imposed  by  the
commander was within the limits and parameters of his  legal  authority  and
was not an abuse of his discretionary authority.  Therefore, we  agree  with
the opinions and  recommendations  of  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 evidence to the contrary, we  find  no  compelling  basis  to
recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of an 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 AFBCMR Docket Number  BC-2006-
01715 in Executive Session on 16 February 2007 under the provisions  of  AFI
36-2603:

                 Mr. Charlene M. Bradley, Panel Chair
                 Ms. Josephine L. Davis, Member
                 Mr. Patrick C. Daugherty, Member


The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 May 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 27 Jun 06.
   Exhibit D.  Letter, AFPC/DPPP, dated 2 Aug 06.
   Exhibit E.  Letter, SAF/MRBR, dated 22 Sep 06.





                                   CHARLENE M. BRADLEY
                                   Panel Chair