RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03453
            INDEX CODE:  111.00
            COUNSEL:  STEPHEN P. KARNS
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Officer Performance Report (OPR) rendered for the period  30 January
2000 through 15 February 2001, be removed from his records.

Or in the alternative

2.  The OPR be amended by deleting line 1 and line 9 in  Section  VI,  Rater
Overall Assessment and line 1  in  Section  VII,  Additional  Rater  Overall
Assessment.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 10 November 2000, the applicant and  his  spouse  were  married.   On  13
November 2000, they both informed their supervisors of their  marriage.   On
8 December 2000 an investigation was conducted  regarding  allegations  that
he fraternized with  his  wife  prior  to  their  marriage,  engaged  in  an
unprofessional relationship with an airman,  sent  inappropriate  electronic
mail to the spouse of an  enlisted  member,  and  attempted  to  develop  an
inappropriate  relationship  with  the  enlisted  member's  spouse.    After
conducting interviews  the  investigation  concluded  all  allegations  were
substantiated.  On 20 March 2001, he received the referral OPR.  On  10  May
2001, his spouse was honorably discharged.

In order for the Air Force to have found  these  allegations  substantiated,
it must have had reliable information  supported  by  substantial  evidence,
then those findings themselves are in error and unjust for the  purposes  of
an OPR.

He denies that he fraternized or engaged in an  unprofessional  relationship
with either his spouse or the spouse of an enlisted  member.   He  did  not,
prior to his marriage, date or engage in  a  sexual  relationship  with  his
spouse, nor did he try to develop an  inappropriate  relationship  with  the
enlisted member's spouse or send inappropriate emails.

The referral OPR  was  based  on  the  erroneous  findings  of  a  Commander
Directed  Investigation  (CDI).   The  findings  revealed   no   substantial
evidence, no eyewitnesses, or proof of any unprofessional conduct.  It  does
however, show blind unreasoning, prosecutorial bias and very clearly  showed
that he did not conduct himself unprofessionally during the  contested  time
frame.

In support of his request, the  applicant  provided  a  personal  statement,
documentation extracted from his military personnel records, and a  copy  of
the CDI.

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

_________________________________________________________________

STATEMENT OF FACTS:

The  applicant’s  military  personnel  records  were  not  available.   Data
extracted from documents provided by the applicant reflects the following:

The applicant is  currently  serving  on  extended  duty  in  the  grade  of
lieutenant colonel.

On 8 December 2000, the Commander of the 39th Medical  Operations  Squadron,
appointed an officer to conduct an investigation into allegations  that  the
applicant fraternized  with  his  now  spouse  before  they  married  on  10
November 2000, engaged in an unprofessional relationship as defined  in  AFI
36-2909, paragraph 2.2 while both were assigned to the  39th  Medical  Group
at Incirlik Air Base before they were married, sent inappropriate emails  to
a civilian female spouse of an enlisted member, and attempted to develop  an
inappropriate relationship with  the  same  civilian  female  spouse  of  an
enlisted member.  The findings  of  the  report  reflect  the  Investigating
Officer (IO) substantiated all of the allegations.  In his report  he  noted
while there were no witnesses  that  observed  public  displays  of  dating,
witnesses did verify that more  likely  than  not,  the  applicant  and  his
spouse were involved in a relationship.  In addition, the enlisted  member’s
spouse verified that  the  applicant  had  sent  her  inappropriate  emails.
Finally, the applicant’s spouse provided testimony that later proved  to  be
“false official statements” in  violation  of  the  UCMJ,  Article  107  and
“false swearing” in violation of Article 134.

The applicant did not file an appeal through the Evaluation Reports  Appeals
Board (ERAB) under the provisions of AFI  36-2401,  Correcting  Officer  and
Enlisted Evaluation Reports.  However, his appeal was forwarded to the  ERAB
for review, and they recommend denial.  The ERAB was not convinced that  the
OPR is in error because the contested information in the report is  accurate
and appropriate.



OPR profile since 2001 follows:

           PERIOD ENDING            EVALUATION OF POTENTIAL

                  *15 Feb 01 Meets Standards (MS) in all
                             but Leadership Skills &
                             Professional Qualities
                       16 Jul 02                   (MS)
                       16 Jul 03                   (MS)
                       28 May 04                   (MS)
                       28 May 05                   (MS)
                       28 May 06                   (MS)
                       28 May 07                   (MS)

*Contested Report

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denial.  DPSIDEP states the purpose of  the  appeals
process is to correct errors or injustices and DPSIDEP does not find  either
in this case.  For the applicant to prevail, he must provide  evidence  that
the reprimand  and  UIF  were  “set  aside”  (should  have  never  existed);
declared void and expunged from  his  records;  and  that  all  his  rights,
privileges and  property  for  which  he  may  have  been  deprived  ordered
restored.   Additionally,  he  would  have  to  provide  evidence  that  the
fraternization, professional relationship,  the  inappropriate  emails,  and
the attempt to develop an inappropriate relationship  were  unsubstantiated.
Unfortunately, the behavior was substantiated therefore, the report  remains
accurate and there is no injustice.

The complete DPSIDEP evaluation is at Exhibit B.

AFPC/JA recommends denial.  JA states this application is untimely  and  the
applicant has failed to prove an error or injustice warranting relief.   The
applicant’s counsel centers his argument for the removal  of  the  contested
referral OPR  on  what  he  claims  is  the  lack  of  reliable  information
supported by “substantial evidence.”  To support  this  theory,  applicant’s
counsel attacks the statements of several  witnesses  and  then  hinges  his
arguments on his assertion that  the  witnesses’  statements  provided  only
unverified, uncorroborated allegations.  As  JA  has  noted  to  this  Board
previously, argument  –  no  matter  how  detailed  –  does  not  constitute
evidence.







Indeed, unlike a military justice action, the evidence of guilt  to  support
an administrative action need not be  based  on  the  “beyond  a  reasonable
doubt” burden of proof required for criminal prosecutions.   Rather,  as  an
administrative action, the standard of proof for a reprimand  is  more  akin
to a civil action wherein facts are determined by substantial  evidence,  or
at most, by a preponderance of the evidence; i.e., that it  is  more  likely
than not that the fact occurred as alleged.  JA has thoroughly reviewed  the
CDI at issue, and finds no legal deficiency to support applicant’s  argument
that there is insufficient evidence to substantiate the allegations  against
him.  Just the opposite is true.

Notably, the lack of any alleged corroboration  to  support  the  allegation
that applicant and his spouse dated before they were married is due  to  her
denial  of  the  allegations  that   were   later   determined,   at   least
administratively, to be true.  Significantly, now his spouse  has  submitted
a 15 August 2007 sworn affidavit in support  of  her  husband’s  application
that directly contradicts her 15 December 2000  witness  testimony  provided
to the IO, namely, that she did not meet applicant  until  on  or  about  10
September 2000.  Thus, applicant’s own evidence fails to  negate  the  legal
sufficiency of the CDI.

Nonetheless,    even    if    the    Board    were    to    disregard    the
fraternization/unprofessional  relationship  allegations,  the   allegations
regarding applicant’s inappropriate emails to  the  civilian  spouse  of  an
enlisted member and attempt to develop an  inappropriate  relationship  with
her are largely uncontested by applicant.  To  be  sure,  these  allegations
“refer to behavior incompatible with minimum standards of personal  conduct,
character, or integrity..."  Accordingly, JA concurs with  the  AFPC/DPSIDEP
advisory.

The complete JA evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and states  it  is  not  factual.   If
this case was accurate  and  truthful,  he  would  not  have  to  submit  an
application to correct an injustice.

He did not attempt or encourage a relationship with the wife of an  enlisted
member.  She lied in her testimony.  He had no knowledge  of  any  complaint
against him until he read it in a copy of the CDI  provided  to  him  months
after the CDI was completed.  He is requesting his testimony  be  given  the
same weight as the wife of the enlisted member.


His wife never gave a false official statement.  On several  occasions,  his
wife was asked if she had  an  unprofessional  relationship  with  him.   On
every occasion she undeniably replied "no."  In her sworn testimony  to  the
AFBCMR, she restated that she did not have an  unprofessional  relationship.
The CDI concluded that it was a fact that his wife provided  testimony  that
later proved to be false and suspected of a criminal offense.

He did not have an unprofessional relationship with  his  wife  before  they
were legally married on 10 November 2000.  If he  had  not  volunteered  the
fact that  he  was  married  to  his  supervisor,  the  probability  of  any
reprimand would have been unlikely.  He did what he knew was proper and  was
reprimanded for an unprofessional relationship  that  did  not  exist.   The
conclusion of the CDI regarding his character  as  an  officer  in  the  Air
Force was the crux of their decision.

Applicant’s 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.  We took careful notice of the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility, in particular that of  the  Office  of  the  Judge  Advocate
General, and adopt their rationale as the basis for our conclusion that  the
applicant has not been the victim of  an  error  or  injustice.   Persuasive
evidence has not been provided which would  lead  us  to  believe  that  the
administrative actions taken by his  commander  were  beyond  his  scope  of
authority or that he abused his  discretionary  authority  in  taking  those
actions.  We do not find his assertions, in and by themselves,  sufficiently
persuasive in this matter.  We are not persuaded by  the  evidence  provided
in support of his appeal, that the  contested  report  is  not  a  true  and
accurate assessment of the applicant's behavior during  the  specified  time
period or that the comments  contained  in  the  report  were  in  error  or
contrary to the provisions of the governing instruction.  Therefore, in  the
absence of persuasive evidence to the contrary, we find no compelling  basis
to recommend granting the relief sought in this application.

_________________________________________________________________



THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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-2007-
03453 in Executive Session on 17 June 2008, under the provisions of AFI  36-
2603:

                 Mr. Jay H. Jordan, Panel Chair
                 Ms. Barbara J. Barger, Member
                 Mr. Grover L. Dunn, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 September 2007, w/atchs.
   Exhibit B.  Letter, AFPC/DPSIDEP, dated 14 December 2007.
   Exhibit C.  Letter, AFPC/JA, dated 31 December 2007.
   Exhibit D.  Letter, SAF/MRBR, dated 11 January 2008.
   Exhibit E.  Letter, Applicant, dated 16 January 2008, w/atch.





                       JAY H. JORDAN
                       Panel Chair