RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2013-05859

 					COUNSEL:   

					HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

1.  His Letter of Reprimand (LOR) be removed from his records.  

2.  His referral Officer Performance Report (OPR) for the period 
ending 19 Mar 12 be removed from his records.  


APPLICANT CONTENDS THAT:

In his behalf, counsel alleges that there are multiple material 
errors that were prejudicial to the applicant’s rights.  The 
majority of the allegations are false and the result of a flawed 
investigation.  Additionally, the Investigating Officer (IO) 
failed to preserve witness statements, lacked reliability and 
trust worthiness and produced recommendations that were not 
substantiated.

The LOR makes multiple allegations that were not supported by a 
preponderance of the evidence in the investigation.  The applicant 
denies any wrongful sexual contact or even contact and denies 
saying anything inappropriate.  

The Command Directed Investigation (CDI) failed to produce 
sufficient evidence to support the adverse actions.  All of the 
witnesses had credibility issues and there was no attempt to 
recover corroborating e-mails and Facebook messages.  

The flaws in the investigation were such that a just result is the 
removal of the contested documents.  To the extent necessary, they 
have served their intended purpose as he has served exceptionally 
in the aftermath of the investigation.  

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


STATEMENT OF FACTS:

The applicant was commissioned in the Regular Air Force on 13 Aug 
00 and is currently serving on active duty in the grade of major 
(O-4).
According to a CDI dated 23 Feb 12, the following allegations were 
investigated:

      a.  Between May thru Jun 11, while occupying a position of 
authority, the applicant made inappropriate comments constituting 
sexual harassment of a female employee in regards to their getting 
together to unwind and have drinks as well as remarks about a 
particular dress “doing things to him.”  Allegation 1 was 
substantiated as sexual harassment.  

	b.  Between May thru Jun 11, he made inappropriate comments 
to a female employee constituting sexual harassment in that he 
asked her repeatedly where she was going on her way to the 
bathroom which made her noticeably uncomfortable as if he was 
“hitting” on her and that his comments were perceived as “flirty” 
and considered “weird” by co-workers.  Allegation 2 was 
substantiated as sexual harassment.  

	c.  Between Nov 11 thru Feb 12, he made inappropriate 
comments to a female employee constituting sexual harassment by 
commenting twice on how “hot” her daughters were in their pictures 
and asking how he could get with the oldest daughter; and 
suggesting that he should drop by her house, get in her hot tub 
and drink wine together.  Allegation 3 was substantiated as sexual 
harassment.  

	d.  On numerous occasions he asked a temporary student 
employee into his office.  On one of those occasions, he touched 
her without consent and in a sexual manner when he put one hand on 
the front of her nametag, his other hand inside her shirt, and 
with the back of his hand against her breast adjusted the magnetic 
backing of her nametag.  He then very deliberately rubbed his 
fingertips on her breast when removing his hand.  He asked her 
numerous times when they could repeat the “nametag adjustment.” He 
also told her that he missed her and kissed the back of her hand 
in an inappropriate manner at work.  He continued to e-mail and 
call her to get together with him.  Allegation 4 was substantiated 
as wrongful sexual contact in violation of Article 120(m), Uniform 
Code of Military Justice (UCMJ), and conduct unbecoming an officer 
in violation of Article 133, UCMJ.

	e.  In Jan 12, he made inappropriate comments constituting 
sexual harassment by “friending” a female employee on Facebook and 
making sexual comments to her such as “who is that smoking hot 
woman in this picture?” and “Let me meet that girl sometime.” The 
IO found that the employee did not know the applicant’s position 
in the squadron while the exchanges were taking place.  Allegation 
5 was substantiated as conduct unbecoming an officer and not 
sexual harassment.  

	f.  On 25 Jan 12, the applicant was observed peeking around 
the corner at a female employee for no apparent reason after 
conducting a business transaction at Outdoor Recreation.  It 
appeared to the witness that he was flirting and was hanging 
around staring at her.  The IO could not corroborate that the 
applicant said, “I need to get a job here because you hire all the 
cute women.”  Allegation 6 was substantiated in part but did not 
constitute overt misconduct.  

	g.  On 27 Jan 12, the applicant allegedly asked a female 
employee working at Outdoor Recreation to go to Sno-fest with him.  
It was determined the preponderance of the evidence did not 
support the allegation.  Allegation 7 was not substantiated. 

	h.  The IO found the applicant engaged in other instances of 
sexual harassment of military and civilian female employees while 
he was the Deputy Director of the 10th Force Support Squadron, 
United States Air Force Academy (USAFA), CO.  An employee observed 
the applicant flirting with various female employees in the 
squadron and thought it was odd that he would suggest that she and 
another employee who were 19 and 17 years old at the time go out 
with them and act as designated drivers.  The IO found that the 
facts and circumstances support the conclusion that the 
applicant’s conduct of a sexual nature had the effect of 
unreasonably interfering with military and civilian female 
employees’ work performance and created an intimidating, hostile 
or offensive work environment.  Allegation 8 was substantiated as 
sexual harassment.

On 12 Mar 12, the USAFA Attorney-Advisor found the Report of 
Investigation (ROI) legally sufficient.  

On 13 Mar 12, the 10th Mission Support Group Commander (MSG/CC) 
issued the applicant an LOR for sexual harassment as defined in 
AFI 36-2706, Equal Opportunity Program, Military and Civilian, for 
wrongful sexual contact as defined by Article 120(m),  UCMJ, and 
conduct unbecoming an officer as defined by Article 133, UCMJ.  He 
was severely reprimanded for his decision to engage in 
unacceptable behavior which created an offensive work environment 
and reflected poor judgment.  The LOR states the 10th MSG/CC 
intended to use the LOR to establish an Unfavorable Information 
File (UIF) and place him on the Control Roster (CR). 

According to an AF IMT 1058, Unfavorable Information File (UIF) 
Action, dated 13 Mar 12, the applicant was placed on the CR and a 
UIF was established.

According to his AF Form 707, Officer Performance Report (Lt thru 
Col), for the period ending 19 Mar 12, he received a referral OPR.  
The reasons for the referral OPR were wrongful sexual contact with 
one female employee and sexual harassment of multiple female 
employees for which he received a LOR, UIF and CR action.




AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial of the applicant’s request to remove 
the LOR.  The evidence presents only minor discrepancies which 
have no bearing on the administrative action itself.  In 
Accordance With (IAW) AFI 36-2907, Unfavorable Information File 
(UIF) Program, paragraph 3.5, “Administer a counseling, 
admonition, or reprimand, verbally or in writing.  If written, the 
letter states:  What the member did or failed to do, citing 
specific incidents and their dates, what improvement is expected 
that further deviation may result in more severe action.  That the 
individual has 3 duty days to submit rebuttal documents for 
consideration by the initiator.  The person who initiates a Record 
of Individual Counseling (RIC), Letter of Counseling (LOC), Letter 
of Admonishment (LOA), or LOR, may send it to the member’s 
commander or superiors for information, action, or for their 
approval for file in the UIF or Personal Information File (PIF).  
Include the applicant’s written acknowledgement and any documents 
submitted by the member.”  There is no evidence  whether the 
commander properly finished the LOR.  However, the discrepancies 
do not invalidate the commander’s action and authority to 
administer the LOR.  

A complete copy of the DPSIM evaluation is at Exhibit C.

AFPC/DPSID recommends denial of the applicant’s request to remove 
the contested OPR based on the recommendation of DPSIM and the 
lack of corroborating evidence.  The applicant has not provided 
compelling evidence to show that the report was unjust or 
inaccurate at the time it was written.  Additionally, the 
applicant did not file an appeal through the Evaluation Reports 
Appeals Board (ERAB) IAW AFI 36-2401, Correcting Officer and 
Enlisted Evaluation Reports. 

IAW AFI 36-2406, Officer and Enlisted Evaluation Systems, 
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 UCMJ, or when adverse actions such 
as Article 15, LOR, admonishment, or counseling, or placement on 
the CR have been taken.”  In this case, he was accused of sexual 
harassment of several females in his unit under his chain of 
command.  The rating chain appropriately chose to comment and 
document the wrongdoing which caused the report to be referred.  
The applicant provided no evidence within his case to show that 
the referral comments on the OPR were inaccurate or unjust; 
therefore, DPSID contends the inclusion of the referral comment 
was appropriate and within the evaluator’s authority to document 
given the incident.  Moreover, a final review of the contested 
evaluation was accomplished by the additional rater and a 
subsequent agreement by the reviewer/commander served as a final 
“check and balance” in order to ensure that the report was given 
fair consideration.  Based upon the presumed sufficiency of the 
LOR, UIF and CR as served to the applicant, DPSID concludes that 
its mention on the contested report was proper and IAW all 
applicable Air Force policies and procedures.  Consequently, this 
element of the applicant’s appeal is without merit.     

A complete copy of the DPSID evaluation is at Exhibit D.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 12 Nov 14 for review and comment within 30 days 
(Exhibit E).  As of this date, no response has been received by 
this office.


THE BOARD CONCLUDES THAT:

1.  The applicant has not exhausted all remedies provided by 
existing law or regulations to warrant removal of the contested 
report from his records.  In this respect, we note this Board is 
the highest administrative level of appeal within the Air Force.  
As such, the applicant must first exhaust all available avenues of 
administrative relief provided by existing law or regulations 
prior to seeking relief before this Board, as required by the 
governing Air Force Instruction.  AFPC/DPSID has reviewed this 
application and indicated there is an available avenue of 
administrative relief the applicant has not first pursued.  In 
view of this, we find this application is not ripe for 
adjudication at this level as there exists a subordinate level of 
appeal that has not first been depleted.  

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice to warrant 
removing the LOR from the applicant’s record.  We took notice of 
the applicant's complete submission in judging the merits of the 
case; however, we agree with the opinion and recommendation of 
AFPC/DPSIM and adopt its rationale as the basis for our conclusion 
that the applicant has failed to sustain his burden of proof that 
he has been the victim of an error or injustice.  Therefore, in 
the absence of evidence to the contrary, we find no basis to 
recommend granting the relief sought in this application.   

4.  The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel will 
materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably considered.


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 the application 
and exhausting all subordinate avenues of administrative relief.


The following members of the Board considered AFBCMR Docket Number 
BC-2013-05859 in Executive Session on 20 Jan 15 under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 23 Dec 13, w/atchs.
	Exhibit B.  Report of Investigation, dated 12 Mar 12. 
	Exhibit C.  Memorandum, AFPC/DPSIM, dated 19 Feb 14.
	Exhibit D.  Memorandum, AFPC/DPSID, dated 8 Oct 14.  
	Exhibit E.  Letter, SAF/MRBR, dated 12 Nov 14.