RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-04108
		COUNSEL:  NONE
			HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

1.  The Letter of Reprimand (LOR), issued on 23 October 2012, along 
with the accompanying Unfavorable Information File (UIF) be 
declared void and removed from his records.

2.  His Officer Performance Report (OPR) rendered for the period 
1 May 2012 through 30 April 2013, be removed from his records and 
substituted with a re-accomplished OPR.

3.  The Promotion Recommendation Forms (PRFs) for the P0612B and 
P0613C, Below the Promotion Zone (BPZ) Central Selection Boards 
(CSBs) be amended.

4.  He be considered for promotion to the grade of colonel by the 
P0612B and P0613C CSBs.

5. In a letter dated 22 August 2014, the applicant also requested 
that his OPR ending 30 April 2014, be amended or removed from his 
records; his In-the-Promotion-Zone (IPZ) Management Level Review 
(MLR) PRF for the P0614C CSB be amended and that he be considered 
for promotion to the grade of colonel by the P0614C CSB.


APPLICANT CONTENDS THAT:

He was relieved of command and issued an LOR/UIF based on the 
findings of a Commander Directed Investigation (CDI) which did not 
meet minimum mandatory Air Force requirements, discrediting the 
credibility of the report.  Further, subsequent actions against him 
were in violation of laws and regulations resulting in a punishment 
which was clearly unjust and unfair.

The Investigating Officer (IO) intentionally kept him from making a 
statement and providing evidence in his defense.  At no point did 
he refuse to answer questions or did he invoke his Article 
31 rights.  In fact, he willingly agreed to provide a statement.  
Nonetheless, for no legitimate reason, the IO made a conscious 
decision not to interview him and did not document why he did not 
interview him as required by the SAF/IGQ CDI Guide.  In other 
words, the IO did not meet mandatory requirements to interview all 
subjects showing further intent to skew his findings.

The conclusions of the legal review were inaccurate regarding legal 
and administrative requirements of the CDI as they pertained to 
him.  Paragraph 7 of the legal review states, "[The IO] has 
complied with all applicable legal and administrative requirements 
in conducting his investigation," however, this statement was made 
in error as the IO clearly identified the applicant as a subject in 
the ROI.  The IO showed intent to deceive and skew his findings by 
attempting to mislead him on his status in the CDI.  In an email 
dated 27 August 2012, the IO stated he was a witness in the CDI 
rather than a subject. This is despite the fact he clearly 
identified him as a subject from the start.  The IO did not make 
him aware of the allegations against him.  If he was only 
considered a witness in the CDI as the legal review assumes, then 
he should have been identified as a subject and offered an 
opportunity to provide an interview, witnesses and evidence in his 
defense.  In either case minimum requirements were not met making 
the CDI legally insufficient.

The cumulative effects of the LOR/UIF that resulted from these 
actions on his family and career have been devastating.  Although 
the Board is incapable of mending the injuries to his family, he 
asks favorable consideration for professional redress as requested.

In support of his request, the applicant provides 41 exhibits, 
which include copies of his LOR, UIF, CDI Report of Investigation 
(ROI), extracts from Air Force Instructions (AFI), OPRs, PRFs, a 
proposed substitute OPR that now contains stratification 
statements, electronic communiqués, memorandums, character 
statements and various other items related to his requests.

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


STATEMENT OF FACTS:

The applicant is currently serving in the Air Force in the grade of 
Lieutenant Colonel (Lt Col, 0-5).

The following facts of the CDI dated 18 September 2012, center on 
an unprofessional relationship between the FSS/CC and the 
applicant; two deployed squadron commanders. (Exhibit I).

      On 1 August 2012, the husband of the FSS/CC alleged that his 
wife and the applicant were having an unprofessional relationship 
for approximately six months while deployed overseas.  Upon his 
wife’s return from an overseas deployment, he brought his 
allegation to the attention of her commander and the applicant’s 
commander.  The applicant and the FSS/CC were deployed for 
approximately one year.
      
      According to the CDI, while the allegations brought by the 
complainant involved both the FSS/CC and the applicant, the 
investigation focused on the FSS/CC due to supervisory limitations 
of the appointing officer.  Nonetheless, Air Force leadership for 
both subjects decided to conduct one CDI initially then share the 
results.

      On 24 August 2012, the FSS/CC’s commander appointed an IO to 
investigate all the facts and circumstances concerning allegations 
of an unprofessional relationship entered into and maintained by 
the FSS/CC.  The specific allegations follow:

        Allegation 1: On or about l February 2012 to 1 August 2012, 
the FSS/CC violated a lawful general regulation, by wrongfully 
participating in an unprofessional relationship with the applicant 
in violation of Article 92, Uniform Code of Military Justice 
(UCMJ). (Substantiated)

        Allegation 2: On or about l February 2012 to 1 August 2012, 
the FSS/CC violated a lawful general regulation.  While serving as 
squadron commander, she abused her command authority to facilitate 
an unprofessional relationship with the applicant, to the disgrace 
of the armed forces, in violation of Article 133, UCMJ. (Not 
Substantiated)

        Allegation 3: The FSS/CC, having knowledge of a lawful order 
issued by her deployed commander; failed to obey the same by 
wrongfully continuing an unprofessional relationship with the 
applicant, in violation of Article 134, UCMJ. (Not Substantiated)

        Allegation 4: On or about l February 2012 to 1 August 2012, 
the FSS/CC violated a lawful general regulation by improperly using 
government equipment to facilitate an unprofessional relationship, 
in violation ·of Article 92, UCMJ. (Not Substantiated)

        Allegation 5 (Added during the investigation): The FSS/CC, a 
married woman, did during her deployment wrongfully have sexual 
intercourse with the applicant, a married man who was not her 
husband, in violation of Article 134, UCMJ. (Substantiated)

      While six witness interviews, that included the FSS/CC’s 
superiors and subordinates at the deployed location revealed no 
misconduct, the IO found credible evidence of the affair in the 
examination of at least 100 emails between the FSS/CC and the 
applicant.
  
      In an email to the applicant sent on 27 August 2012, the IO 
advised him that he was appointed as the IO and wanted to organize 
a time to interview him.  In another email to the applicant sent on 
4 September 2012, the IO advised the applicant that he did not plan 
to interview him.

      The IO found that the FSS/CC and the applicant had an 
extramarital relationship during the period in question which met 
the thresholds for unprofessional relationships outlined in AFI 36-
2909, Professional and Unprofessional Relationships.  The IO 
substantiated one of the original four allegations; that an 
unprofessional relationship existed.  Additionally, during the 
course of the investigation the IO determined by a preponderance of 
evidence, that the FSS/CC and the applicant had an adulterous 
affair in violation of Article 134, UCMJ.  This finding was added 
as a fifth allegation.
      According to the IO, the preponderance of evidence suggests 
that the FSS/CC was involved in an extramarital affair with the 
applicant which included sexual relations.  Based on testimony, 
their relationship did not affect the good order and discipline of 
the FSS/CC’s squadron.  “Nevertheless, there was enough of an 
impact at the deployed location for an airman to file an anonymous 
IG complaint in May 2012 indicating their relationship had a 
negative impact on unit morale to some degree.”  The IO recommended 
Article 15, non-judicial as the appropriate disciplinary action for 
the FSS/CC.  Furthermore, he recommended the findings of the CDI be 
shared with the applicant’s chain of command.

In a letter dated 29 September 2012, the 11WG/JA concluded that the 
CDI ROI was legally sufficient.

In a letter dated 11 October 2012, the applicant received a LOR for 
having an unprofessional sexual relationship with another squadron 
commander.

In a letter dated 11 October 2012, the applicant acknowledged 
receipt of the LOR and stated he intended to provide comments or 
written documentation in response to this action.

In a letter dated 17 October 2012, the applicant submitted a 
rebuttal.  In his rebuttal to the commander, he stated that family 
problems, the pressures of a deployed command and his selection for 
a third command assignment caused numerous stressors in his life, 
which resulted in insomnia and depression.  His primary care 
physician prescribed him anti-depressants at increasing dosages.  
During this time, the FSS/CC, was a source of support and a non-
attributional sounding board.  His emails to her were 
unquestionably inappropriate and he understood why some others may 
have perceived their relationship as such.  He asked his commander 
to understand how he had imperfectly handled the most difficult 
time of his life.  He stated that he fully understood the need for 
officer accountability and understood that Air Force guidance 
requires commanders to take into account the full context of events 
rather than just the findings of an incomplete investigation.  
Therefore, he requested that the commander consider issuing a 
Letter of Admonition rather than a LOR.  After review of the 
applicant's rebuttal, the commander decided to uphold the LOR.

On 23 October 2012, the applicant’s commander decided to establish 
a UIF and placed the LOR dated 11 October 2012, in the UIF.

On 5 March 2014, the PACAF/CC decided to remove the LOR dated 
11 October 2012 and to terminate the UIF.


AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial of the applicant’s request to remove 
his LOR/UIF.  The commander followed proper procedures which were 
consistent with the procedural and substantive requirements of AFI 
36-2907, The Unfavorable Information File (UIF) Program.
The complete DPSIM evaluation is at Exhibit C.

AFPC/DPSID recommends denial of the applicant’s request to replace 
the contested OPR or amend his PRFs.  The applicant has not 
substantiated that the contested OPR was not rendered in good faith 
by all evaluators based on knowledge available at the time.  The 
applicant contends that the OPR is unjust based on a lack of 
stratification after having received an LOR/UIF during the 
reporting period and requests the contested report be substituted.  
Non-selection for promotion is, for many, a traumatic event, and 
the desire to overturn that non-selection is powerful motivation to 
appeal.  However, the ERAB is careful to keep the promotion and 
evaluation issues separate, and to focus on the evaluation report 
only.  AFI 36-2406, Officer and Enlisted Evaluation Systems, 
paragraph 1.3.1 states: “Evaluators are strongly encouraged to 
comment in performance reports (and an officer’s next PRF) on 
misconduct that reflects a disregard of the law, whether civil law 
or the UCMJ or when adverse actions such as Article 15, Letters of 
Reprimand, Admonishment, or Counseling, or placement on the Control 
Roster have been taken.”  In this case, the applicant (a 
commander), was having an adulterous affair with a fellow commander 
while deployed.  Given the incident, the rating chain still chose 
not to comment and document the underlying wrong doing.  The 
applicant provided no evidence to show that the OPR was inaccurate 
or unjust; therefore, the OPR is accurate as written.

The applicant also contends that his two BPZ (P0612B and P0613C) 
PRFs should be revised as though he had not received the LOR/UIF. 
The applicant has not provided evidence of an error, injustice or 
support from either the senior rater who accomplished the PRFs nor 
has the MLR president supported a change to either PRF.  AFI 36-
2406, paragraph 10.2.4.6 states: "When an evaluator supports 
changing ratings, all subsequent evaluators must also agree to the 
changes, (including the commander on EPRs, the reviewer on OPRs, 
and the MLR Board President on PRFs).”  Again, the applicant 
provided no evidence to show that the PRFs were inaccurate or 
unjust when originally written; therefore, the PRFs are accurate 
and in accordance with Air Force policy and guidance.

The fact remains that the applicant's contested OPR is not a 
referral.  His contention is simply the lack of an optional 
stratification.  Although the applicant provided a memorandum of 
support from his rater and a proposed substitute report, the report 
is incomplete and will not be considered.  AFI 36-2401, Paragraph 
1.3 states:  Prohibited Requests - The ERAB will not consider nor 
approve requests to:  Change (except for deletions) an evaluator's 
ratings or comments if the evaluator does not support the change.  
When an evaluator supports changing ratings, all subsequent 
evaluators must also agree to the changes.  It is also a prohibited 
request to re-accomplish a report without the applicant furnishing 
the new completed report.  Additionally, the most effective 
evidence consists of statements from the evaluators who signed the 
original report. Such statements if available should:  Cite 
important facts or circumstances that were unknown when the 
evaluators signed the report; detail the error or injustice; 
explain how and when it was discovered; include the correct 
information; relate to the contested reporting period; address the 
allegations and substantially challenge or disprove comments or 
ratings in the report.  The applicant has provided absolutely no 
proof that the OPR or the subject PRFs received are inaccurate or 
unjust based on the evidence, or lack thereof. 

The complete DPSID evaluation is at Exhibit D.

AFPC/DPSOO recommends denial of the applicant’s request for SSB 
consideration based on DPSIM's recommendation to deny the 
applicant’s request to remove the LOR/UIF and DPSID's 
recommendation to deny his request to replace the contested OPR.  
The applicant met and was non-selected for promotion by the 
Calendar Year (CY) 2012B (P0612B) and CY 2013C (P0613C) Colonel 
CSBs, which convened on 5 November 2012 and 4 November 2013, 
respectively.

The complete DPSOO evaluation is at Exhibit E.

AFPC/JA recommends denial.  As a result of a complaint received 
from the husband of the FSS/CC that his wife was having an affair 
with the applicant while both were deployed; on 24 August 2012, the 
FSS/CC’s commander appointed an IO to investigate four specific 
allegations as they related to the FSS/CC.  Those allegations were 
that the FSS/CC violated AFI 36-2909, by maintaining an 
unprofessional relationship with the applicant from 1 February 
2012 to 1 August 2012; that the FSS/CC facilitated that 
unprofessional relationship by abusing her command authority; that 
the FSS/CC failed to obey an order by her commander by continuing 
the unprofessional relationship; and that the FSS/CC improperly 
used government equipment to facilitate the unprofessional 
relationship. A fifth allegation was added during the 
investigation; i.e., that the FSS/CC, a married woman, during the 
course of her deployment, wrongfully had sexual intercourse with 
the applicant, a married man not her husband.  As a result of his 
investigation, which ran from 24 August 2012 to 13 September 2012, 
the IO substantiated the first and fifth allegations, but did not 
substantiate the other three.

Contrary to one of the applicant's allegations; he was not a formal 
subject of the investigation due to the supervisory limitations of 
the appointing officer.  As such, there was no requirement for the 
IO to interview him.  Nevertheless, the IO indicated a desire to 
interview him as a witness, but when the applicant demanded the 
presence of his attorney at any interview and demanded to see the 
questions ahead of time, the IO decided not to do so.  Given that 
the applicant presented the same matters in rebuttal to the LOR 
that he says he would have provided to the IO, JA can discern no 
prejudice or unfairness from the applicant not having been 
interviewed.  Nor can JA discern any other action by the IO that 
violated the due process rights of the applicant, who again was not 
the subject of the investigation.

JA reviewed all the evidence in the case file, to include the ROI, 
the applicant's statement in response to the LOR, and the material 
and arguments he has made as part of his application to the Board.  
A preponderance of that evidence supports the allegation contained 
in the LOR, as well as the first and fifth allegations 
substantiated by the IO.  The bulk of that evidence comes from the 
e-mails exchanged between the applicant and the FSS/CC, which 
clearly portray a relationship that went beyond a normal 
friendship.  In particular, the email from the applicant dated 
25 July 2012, which explains that having sex with his wife is 
"never as good as with you...I want to feel your body close to mine 
again."  The only reasonable inference that can be drawn from this 
statement is that the applicant was talking about a sexual 
relationship with the FSS/CC.  The applicant attempts to counter 
the evidence of a sexual relationship by first including evidence 
of medical treatment he was receiving that could have caused him to 
have difficulty with sex and a diminished sex drive, and medical 
difficulties that caused lack of sleep and depression.  While those 
circumstances may be true, they do not establish that applicant 
could not - or did not, have sex with the FSS/CC.

The single most telling factor bearing on the likelihood that the 
applicant had a sexual, unprofessional relationship with the FSS/CC 
is the fact that he has never specifically denied it in his brief 
before this Board or in the statement in response to the LOR.  In 
fact, he dances around any admission by arguing that other evidence 
makes it less likely that he had such a relationship.  All of that 
information pales when it is not accompanied by a strong, outright 
denial.

The bottom line is that the LOR is clearly supported by a 
preponderance of the available evidence, and the applicant's basic 
due process rights were protected when he was offered-and accepted-
the opportunity  to respond.  That is all that is required in 
accordance with AFI 36-2907, Unfavorable Information File, 
paragraphs 3.4 and 3.5, and is the essence of this case.  As to the 
applicant's arguments challenging the legal sufficiency of the OPR 
covering this period, JA concurs with the comprehensive advisory 
from DPSID, that no basis exists to substitute a new version of the 
challenged OPR, and that this allegation is without merit.  Because 
the applicant has failed to prove any prejudicial error as to 
either the LOR or OPR, there is no basis to award SSB consideration 
for the two BPZ CSBs for promotion to the rank of colonel.

The complete JA evaluation is at Exhibit F.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provided separate rebuttal statements for each of the 
following advisory opinions:

DPSIM recommends that the LOR/UIF not be removed on the grounds 
that proper procedures were followed.  However, the PACAF commander 
disagreed.  Once it was brought to his attention and following a 
careful review of his case and under the legal counsel of the 
PACAF/JA and the personnel advice of PACAF/Al on 5 March 2014, he 
removed the LOR/UIF via AF IMT 1058, Unfavorable Information File 
Action.

The Board should disregard DPSOO’s recommendation and approve his 
request for SSB consideration for two BPZ boards.  The primary 
reason he was not able to compete for promotion to the grade of 
colonel was the existence of an unjust LOR/UIF, which was later 
removed at the 4-star level.

The Board should disregard DPSID’s recommendation and approve his 
request to amend or remove his OPR and to amend his PRFs.  In 
addition, since submitting his application to the Board he received 
another non-promotable OPR, closeout date 30 April 2014, and will 
soon meet his IPZ MLR.

JA’s opinion is misleading and misrepresents the facts of the case 
and ignores or dismisses relevant evidence.  They can only "infer" 
a sexual relationship between the FSS/CC and himself based on one 
line in an email, ignoring all other exonerating evidence.  JA is 
incorrect in saying he was not the subject of the CDI and not 
entitled to an interview.  In his application he shows that the IO 
named him as a subject and the IO further stated he would share the 
results of the CDI with his chain of command for disposition.  This 
made him a subject in spirit and in fact, which was corroborated by 
the 11WG/JA, who provided a legal review for the ROI.  The FSS/CC 
further corroborates this in her letter to the Board.  

He did not "demand" to have legal counsel present or "demanded" to 
see the questions in advance.  At no point did he waive his right 
to make a statement or make an interview contingent on these 
things.

JA also wrongly contends that his response to the LOR sufficed as 
an interview.   The truth is the CDI results were considered fact 
before he could respond to the accusations and he was already 
presumed guilty.  He had already been publicly relieved of command, 
further presuming guilt before he could respond.  JA further 
contends he could not prove that he did not have a sexual 
relationship, therefore it must have occurred.  In doing so JA 
essentially says that he has to prove innocence to have his 
punishment removed when the government did not have to prove guilt 
to punish him.  Based on this burden of proof everyone accused of 
wrongdoing would be punished.  JA is well aware that proving the 
non-existence of anything is a scientific and legal impossibility.  
In addition to what he has already presented in response to the 
advisory opinions, he offers the following additional evidence to 
the Board regarding unfair treatment and injustice: 

He submitted a formal complaint that his commander committed a 
Personally Identifiable Information (PII) violation by willfully 
releasing his punishment to his accuser; a violation which was 
substantiated on investigation.  This confirmed the illegal action 
and provided further evidence of his commander’s prejudice towards 
him.  He submitted an Article 138 complaint on his commander to the 
11AF/CC regarding his punishment.  He submitted his complaint 
because his commander was personal friends with the convening 
authority and he would not receive a fair hearing.  The 11 AF/CC 
ignored his concerns and forwarded the complaint to the convening 
authority, who subsequently denied his complaint.

Because of the unique command structure at his assignment and the 
11AF/CC’s inaction, he was unable to elevate his case beyond the 0-
6 level for nearly a year and a half, an injustice in itself.  The 
first impartial look he received from a general officer resulted in 
his punishment being terminated.  This, however, arrived too late 
to give him any chance at recovery.  Since submitting his 
application to the Board he has received another non-promotable 
OPR, closeout date 30 April 2014, and will soon meet his IPZ MLR.  
His supervisor advised him this OPR will result in a non-promotable 
PRF.  It is for this reason he also respectfully requests the Board 
consider amending or removing this OPR, amending his IPZ PRF, and 
forwarding him for IPZ SSB consideration.

The applicant’s complete response, with attachments, is at Exhibit 
H.


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 an error or injustice to warrant 
removing his LOR/UIF, replacing the contested OPR, amending his 
PRFs or promotion consideration to the grade of colonel by the 
P0612B and P0613C CSBs.  We note the applicant believes that the 
LOR/UIF he received is unjust; however, we do not find plausible 
evidence nor are we persuaded by his assertions that the 
administrative actions taken by his commander were inappropriate, 
or that the actions taken were precipitated by anything other than 
the applicant's own conduct.  His contentions are duly noted; 
however, his case has undergone an exhaustive review by the Air 
Force Offices of Primary Responsibility (OPRs) and we did not find 
the evidence provided or the applicant's arguments sufficient to 
overcome their assessment of the case.  Therefore, we agree with 
the opinions and recommendations of the Air Force OPRs and adopt 
the rationale expressed as the basis for our decision that the 
applicant has failed to sustain his burden that he has suffered 
either an error or an injustice.  Additionally, since submitting 
his application to the Board, the applicant states he received 
another non-promotable OPR with a closeout date 30 April 2014, and 
will soon meet an IPZ MLR.  As such, he requests we consider 
amending or removing this OPR, amending his IPZ PRF, and forwarding 
him for IPZ SSB consideration.  However, insufficient evidence that 
the contested OPR is not a true and accurate assessment of his 
performance and demonstrated potential 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.  In 
addition, since the applicant has not provided a copy of his IPZ 
PRF, we cannot determine whether this report is a true and accurate 
assessment of his performance.  Finally, since no changes will be 
made to the record, favorable consideration of his request for SSB 
consideration to the grade of colonel is not warranted.  In view of 
the above and in the absence of persuasive evidence to the 
contrary, we find no basis to recommend granting the relief sought 
in 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 this application in 
Executive Session on 21 October 2014, under the provisions of AFI 
36-2603:

      	, Panel Chair
     	, Member
     	, Member

The following documentary evidence pertaining to AFBCMR BC-2013-
04108 was considered:

    Exhibit A.  DD Form 149, dated 26 August 2013, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSIM, dated 15 December 2013.
    Exhibit D.  Letter, AFPC/DPSID, dated 12 June 2014.
    Exhibit E.  Letter, AFPC/DPSOO, dated 30 June 2014.
    Exhibit F.  Letter, AFPC/JA, dated 17 July 2014.
    Exhibit G.  Letter, SAF/MRBR, dated 28 July 2014.
    Exhibit H.  Letter, Applicant, dated 15 August 2014.
    Exhibit I.  Commander Directed Investigation - WITHDRAWN.