RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-03421
                                        INDEX CODE:  111.02
  XXXXXXXXXXXXXXX                       COUNSEL:  NONE
                                        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Officer Performance Report (OPR) rendered for the period of  31  October
1996 through 30 October 1997 be voided and removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His contested OPR contains statements and ratings that  are  unjust  because
his accuser, who had been someone he was dating, proved to  be  inconsistent
in her statements and unwilling to participate in  legal  proceedings  which
led to the dismissal of the Article 32 proceedings.

In support of his request, the applicant submits a  personal  statement  and
copies of his contested OPR, statements from his  accuser,  and  letters  of
support from his rating chain.

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

_________________________________________________________________

STATEMENT OF FACTS:

The Military Personnel Database  (MilPDS)  indicates  the  applicant  has  a
Total Active Federal Military  Service  Date  and  a  Total  Active  Federal
Commissioned Service Date of 3 March 1992.  He was promoted to the grade  of
major, effective and with a date of rank of 1 October 2002.

The following is a resume of his OPR  ratings  commencing  with  the  report
closing 30 October 1994:

      PERIOD ENDING                     OVERALL EVALUATION

      30 Oct 94 (1st Lt)                       MS
      30 Oct 95 (Capt)                    MS
      30 Oct 96                           MS
      30 Oct 97                              Contested Report
      30 Oct 98                                MS
       9 Dec 99                                MS
      13 Jun 00                                MS
       7 May 01                                MS
      15 Apr 02                                MS
      15 Apr 03 (Major)                        MS
      15 Apr 04                                MS
      15 Apr 05                                MS
      15 Apr 06                                MS
      15 Apr 07                                MS

The  applicant  received  a  Letter  of  Reprimand  (LOR)  and   Unfavorable
Information File (UIF) for conduct unbecoming an  officer  and  questionable
judgment for making unwarranted sexual advances towards a  female  civilian.
During the course of the investigation, the accuser did not  participate  in
the prosecution’s case and refused to show up or testify at the  Article  32
proceedings.  On 15 May 1997, the accuser went to the  applicant’s  attorney
and submitted a statement that she did not want to  proceed  with  the  case
and that the whole thing was a mistake.  On 21 November 1997, the  applicant
was notified of a referral OPR for the period 31  October  1996  through  30
October 1997.  The report was referred  due  to  a  comment  indicating  the
applicant  received  a  LOR  citing  conduct  unbecoming  an   officer   and
questionable judgment for making unwanted sexual advances  toward  a  female
civilian.  On 25 November 1997, the applicant acknowledged  receipt  of  the
notification.

On 20 February 2004, the applicant submitted an  appeal  to  the  Evaluation
Reports Appeal Board (ERAB) requesting his OPR closing 30  October  1997  be
voided.  The ERAB denied the applicant’s request.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denying the applicant’s  request  to  void  his  OPR
closing 30 October 1997.  DPSIDEP states that although there was not  enough
evidence to proceed with a  Court  Martial,  the  applicant’s  LOR  and  UIF
remained.  This information was known at the time  the  report  was  written
but  the  evaluator  did  not  have  to  use  it.   However,  the  evaluator
determined, at that time, the information was warranted  mentioning  in  the
OPR.  Since the applicant received an LOR and UIF  for  the  reasons  cited,
and the actions were not dismissed, the statement in the OPR is accurate  as
written.  In their support to remove the contested OPR, the  evaluators  did
not indicate that they now have information that was not available when  the
report  was  rendered  that  substantiates  the  applicant  was   dealt   an
injustice.

DPSIDEP states that for the applicant to prevail, the LOR and UIF would  had
to have been “set aside” (deemed never should have  happened/existed).   The
LOR was removed from the UIF  early  indicating  the  administrative  action
served its purpose, not that the action did not happen or that  the  offense
did not occur.  Currently, the  evidence  only  shows  that  there  was  not
enough evidence to proceed to Court Martial.

DPSIDEP states the contested report contains accurate information  that  was
known to the evaluators at the time the  report  was  written.   The  appeal
process is to correct errors or injustices and they do not  find  either  in
this case

The DPSIDEP evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He stated his argument in his application package and is not sure what  more
can be said about the lack of support from his normal chain  of  command  in
resolving this issue at the time it occurred.   It  is  clear  to  him  that
having his leadership involved and fighting this issue would have  prevented
the LOR and UIF from being  issued  in  the  first  place.   His  Air  Force
leaders in subsequent assignments saw through the  red  tape  and  evaluated
the situation from an unbiased perspective.  His  additional  rater  at  his
next assignment understood the UIF should not have  been  established  based
on unsupported accusations and supported a request to have the  UIF  removed
immediately.  The advisory opinion is  stating  that  his  rating  chain  is
wrong about the contested report being an unjust evaluation.  He  only  asks
that the Board impartially consider his application.

The applicant’s rebuttal is at Exhibit D.

_________________________________________________________________

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 an injustice.  After a  thorough  review  of  the  evidence  of
record,  the  Board  is  persuaded  that  the  contested  report,  while  an
otherwise accurate reflection of  the  applicant’s  performance  during  the
period in question, should not have included the comments regarding the  UIF
and LOR that made it a referral report.  We are satisfied  by  the  evidence
presented that the applicant’s receipt of  an  LOR  and  corresponding  UIF,
following the accuser’s recanting  of  her  charge,  was  unwarranted.   Our
opinion is supported by the documented statement from the  accuser  and  her
unwillingness to perpetuate legal proceedings based on an  admittedly  false
charge, as well as the statements provided on the  applicant’s  behalf  from
his former rating chain.  Therefore, based on this  evidence,  we  feel  the
comments in the contested OPR  concerning  the  LOR  and  corresponding  UIF
created an injustice.  Accordingly, we recommend the  records  be  corrected
to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to  APPLICANT  be  corrected  to  show  that  the  Company   Grade   Officer
Performance Report, AF Form 707B, rendered for the period  31  October  1996
through 30 October 1997 be declared void and removed from his  records.   It
is  further  recommended  that  the  corrected  record  be  considered   for
promotion to the grade of major by Special Selection Board for the  Calendar
Year 2001A (CY01A) Central Major Selection Board,  and  for  any  subsequent
board for which the OPR closing 30 October 1997 was a matter of record.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 29 April 2008, under the provisions of AFI 36-2603:

                 Mr. Gregory A. Parker, Panel Chair
                 Mr. Joseph D. Yount, Member
                 Mr. James A. Wolffe, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2007-03421:

    Exhibit A.  DD Form 149, dated 19 Oct 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPSIDEP, dated 3 Dec 07.
    Exhibit C.  Letter, SAF/MRBR, dated 15 Feb 08.
    Exhibit D.  Applicant’s Rebuttal, dated 28 Mar 08.




                                   GREGORY A. PARKER
                                   Panel Chair


AFBCMR BC-2007-03421


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 XXXXXXXXXXXXXXXXXXXX, be corrected to show that the Company
Grade Officer Performance Report, AF Form 707B, rendered for the period 31
October 1996 through 30 October 1997 be, and hereby is, declared void and
removed from his records.


      It is further directed that the corrected record be considered for
promotion to the grade of major by Special Selection Board for the Calendar
Year 2001A (CY01A) Central Major Selection Board, and for any subsequent
board for which the OPR closing 30 October 1997 was a matter of record.






                                       JOE G. LINEBERGER
                                       Director
                                       Air Force Review Boards Agency