RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-00737
            INDEX CODE:  131.00, 126.00
      XXXXXXX                     COUNSEL:  DAVID PRICE
                                  HEARING DESIRED:  NO

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MANDATORY CASE COMPLETION DATE:  11 SEP 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment imposed on 27 April 2005, be set  aside  and  his
rank be restored to master sergeant (MSgt).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The allegations substantiated in  the  Commander's  Directed  Investigation,
(CDI) and the Article 15 action were unjust  because  there  was  no  proof,
evidence,  documentation,  statements  or  corroboration,  only  her   words
against his.  He believes his commander made the  wrong  decision  based  on
the evidence presented.

In support of his request, the applicant submits a petition prepared by  his
defense counsel along with 19 attachments.

The complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 29 July 1983. On  16  Nov
2004, a CDI was initiated to investigate allegations  of  sexual  harassment
made by a female staff sergeant  (SSgt).   The  Investigating  Officer  (IO)
submitted his report on 18 Feb 2005.  The IO interviewed the complainant,  a
number of present and past workplace and background witnesses familiar  with
the parties, as well as two suggestively worded e-mails from  the  applicant
to the  complainant.   The  applicant  exercised  his  right  against  self-
incrimination and did not provide a statement.  One witness alleged she  was
the victim of similar, previously  undisclosed,  sexual  harassment  by  the
applicant five years earlier.   There  were  no  witnesses  to  the  alleged
incidents of sexual harassment other than the  parties  involved.   Base  on
his evaluation  of  the  evidence  available,  and  his  assessment  of  the
credibility of all witnesses, the IO substantiated the  allegations  against
the applicant.  On  15 April  2005,  his  commander  offered  the  applicant
nonjudicial  punishment.   He  was  charged  with   one   specification   of
dereliction of duty for engaging in an unprofessional  relationship  with  a
female subordinate under his supervision, in violation of Article 92,  UCMJ.
 He was alleged to have sexually harassed the subordinate in  a  variety  of
ways including hugging, kissing, and pressuring her to expose  her  breasts.
He was also charged with one specification of committing  indecent  acts  by
patting the female  subordinate's  buttocks  and  grabbing  her  breast,  in
violation of the  UCMJ.   After  consulting  with  a  defense  attorney  and
waiving his right to demand trial by court martial, he accepted  nonjudicial
punishment  and  submitted  a  written  presentation  for  the   commander's
consideration.  He also made a personal appearance before the  commander  to
present matters  in  his  own  defense.   On  27  Apr  2005,  the  commander
determined the applicant had committed  the  offenses  alleged  and  imposed
nonjudicial punishment consisting of  a  reduction  in  grade  to  technical
sergeant (TSgt), and a letter  of  reprimand  (LOR).   On  2  May  2005,  he
appealed the Article 15 action, first to the imposing commander and then  to
the appeal authority.  His appeals were ultimately  denied  at  all  levels.
On 16 May 2005, the Article 15 action was reviewed for legal sufficiency  at
two separate levels and found to be legally sufficient.   On  30  Jun  2005,
the applicant retired in the grade  of  TSgt  after  serving  21  years,  11
months and 2 days of active duty.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states 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,  the
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.   Each
commander exercises his or her  own  best  judgment.   After  reviewing  all
pertinent facts, evaluating the evidence and assessing  the  credibility  of
those  involved,  the  commander  determined  the  applicant  committed  the
offenses.  In addition, as long as the commander is acting within the  scope
of their authority, their judgment should  not  be  disturbed  just  because
others might disagree.   The  applicant  does  not  provide  any  compelling
evidence  to  support  his  request.   Moreover,  the   applicant   provided
absolutely no  evidence  of  error  or  injustices  during  the  Article  15
process.  He chose to waive his rights to contest the charges  at  a  court-
martial, where the charges would have  to  be  proven  beyond  a  reasonable
doubt in a court of law.    Instead, he  chose  to  accept  the  Article  15
forum and his commander's judgment.  A commander's  action  should  only  be
set aside when the evidence demonstrates an  error  or  a  clear  injustice.
The applicant has not presented evidence of  a  meaningful  error  or  clear
injustice in the Article 15 process, and there is no evidence in the  record
the commander  abused  his  discretion.   Accordingly,  JAJM  recommends  no
relief be granted.

The complete AFLOA/JAJM evaluation is at Exhibit B.

AFPC/DPPPWB recommends denial.  DPPPWB states  the  commander  acted  within
his authority when  he  issued  the  Article  15  punishment  based  on  the
information provided and the results of the investigation.   They  therefore
defer the recommendation of JAJM regarding his  request  to  set  aside  the
Article 15 action.

The complete DPPPWB evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant's Counselor responded and indicated JAJM states the  applicant
sent two “suggestively worded” e-mails to the alleged victim.  While the  e-
mails may have been considered inappropriate banter between office  workers,
phrases such as “yes dear…oh I can’t say that…you might  call  the  hotline.
Yes ma’am” and “just seeing you everyday brightens my  day.   What  would  I
ever do without the love of my admin person,” do not meet the definition  of
suggestive.  The victim states the harassment had been  going  on  for  over
seven months; however she made no attempt  to  report  the  applicant  until
after she found out he might possibly contact Life  Skills  and  report  her
recent alcohol incident during a temporary duty (TDY) assignment.   At  that
point she had no problems reporting applicant for allegedly  harassing  her,
it was a sure way to distance the applicant from her and  prevent  him  from
making statements that might possibly have an effect on her career.   During
those seven months the victim shared with the applicant personal aspects  of
her marriage, invited him to her wedding, requested his help outside of  the
office to take her kids to daycare and help her with car troubles,  and  she
even came to his house to  purchase  furniture  and  play  toys.   She  also
reported to the wing commander (WG/CC) during a feedback  session  that  the
applicant was very helpful in assisting her with all her personal  problems.
 The applicant was applauded by  the  WG/CC  for  his  assistance  with  the
victim the following day.  The IO was unable to substantiate the  allegation
by the information and testimony of the victim, or  by  reviewing  both  the
applicant’s  service's  record  and  the  record   of   the   victim.    The
investigation should have been concluded at that point.  The  IO,  seeing  a
career move he felt was “odd” approached an individual who was in  the  same
career field as the applicant and the victim and had been at Scott AFB  long
enough to remember when the applicant was employed  in  the  wing  executive
office for the first time and asked if she knew of anyone  who  she  thought
had a strong feelings/opinions regarding the applicant.  This is how the  IO
was directed to TSgt B, who, after 5 years of not  making  any  allegations,
reports, or taking any action, now told  a  story  to  the  IO  of  how  the
applicant sexually harassed her while  they  both  were  deployed  together.
The applicant readily  admits  they  had  consensual  sex  and  TSgt  B  was
concerned her husband would find out.  The IO made the determination  “based
on his experience” that TSgt B’s revelation after five years  substantiated,
somehow, the victim’s current allegations, even though the IO was unable  to
substantiate the victim’s allegations when investigated  alone.   After  the
IO made  the  decision  to  further  investigate  the  career  move  by  the
applicant and thought to be a “sign” of trouble, it was later found  out  to
be a self-initiated move, rather than a disciplinary move as  was  the  IO’s
suspicion.  In fact  the  applicant  initiated  the  move  at  the  personal
request of the communications group commander.  The applicant’s  record  was
without a blemish, he had served the Air Force and his  country  with  honor
and dignity for over 21 years, but  due  to  the  allegations  of  a  junior
airman, who was experiencing martial issues, issues with  alcohol,  and  had
been counseled for poor performance on several occasions his  entire  career
was destroyed along with his reputation and the rank of MSgt  he  worked  so
hard for.  The applicant deserved the benefit of the doubt; he  deserved  to
be treated with respect, he deserved to retire as a MSgt.

The complete response is at Exhibit E.

_________________________________________________________________

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 that would warrant set aside of his  Article
15 action or restoration to the  grade  of  master  sergeant.   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.  Evidence has not been presented which would lead  us
to believe that the nonjudicial punishment was improper.  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.   It  is  our
opinion that the applicant has failed to sustain  his  burden  of  proof  of
such.  The evidence indicates that, during the processing  of  this  Article
15 action, the applicant was offered every right to which he  was  entitled.
He was represented by counsel, waived his right to demand  trial  by  court-
martial,  and  submitted  written  matters  for  review  by   the   imposing
commander.  After considering the  matters  raised  by  the  applicant,  the
commander determined that the applicant had committed "one or  more  of  the
offenses alleged" and imposed punishment on the  applicant.   The  applicant
has not provided any evidence showing 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, based on the available evidence  of  record,  we  find  no
basis upon which to favorably consider 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 AFBCMR Docket Number  BC-2004-
00737 in Executive Session on on 21 Jun 07, under the provisions of AFI  36-
2603:

                 Mr. Michael K. Gallogly, Panel Chair
                 Mr. Elwood C. Lewis III, Member
                 Ms. Sharon B. Seymour, Member

The following documentary evidence pertaining to AFBCMR Docket  Number  BC-
2007-00737 was considered:


    Exhibit A.  DD Form 149, dated 1 March 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 22 April 07.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 14 May 07.
    Exhibit E.  Letter, SAF/MRBR, dated 24 May 07.
    Exhibit F.  Letter, Applicant, dated 5 June 07.



                                   MICHAEL K. GALLOGLY
                                   Panel Chair