RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  97-03305 (Case 2)
            INDEX CODE:  126.00, 131.0,110.00

            COUNSEL:  MR. DANIEL L. INSERRA

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The two Article 15s, Uniform  Code  of  Military  Justice  (UCMJ),
imposed on 14 September 1995 and 29 September 1995, be voided from his
records.

2.  It appears  the  applicant’s  request  is  to  have  the  Enlisted
Performance Reports (EPRs), closing 19 August 1995 and 19 April  1996,
removed from his record and rewritten to reflect no  adverse  comments
regarding nonjudicial punishment.

3.  His grade  of  staff  sergeant  (E-5)  be  restored,  that  he  be
permitted to reenlist and that he be allowed  to  test  for  technical
sergeant (E-6) at the earliest possible time.

4.  His reenlistment eligibility (RE) code be changed from “4D” to “1”
and that the DD Form 214 reflect his proper grade.
_________________________________________________________________

APPLICANT CONTENDS THAT:

Both Article 15s and his reduction in grade are unjust.

After the first  Article  15  was  imposed,  the  commander  initiated
separation  proceedings.   While  waiting   for   his   administrative
separation board, he received a second Article 15.  At the  conclusion
of the administrative discharge  board,  he  was  found  not  to  have
committed the offenses upon which  the  nonjudicial  punishments  were
premised.   Nonetheless,  his  commander  refused  to  set  aside  the
nonjudicial punishments and refused to allow him to reenlist.

In support of his request, counsel submits a statement, copies of  the
two Article 15s, Findings of the Administrative  Discharge  Board  and
the DD Form 214 (Exhibit A).
_________________________________________________________________

STATEMENT OF FACTS:

On 24 February 1984, applicant enlisted in the Regular  Air  Force  in
the grade of airman basic (E-1) for a period of four  years.   He  was
progressively promoted to the grade of staff sergeant (E-5),  with  an
effective date and date of rank of  1  January  1989.   The  applicant
continued to reenlist, with his last reenlistment on 21 January  1994,
in the grade of E-5, for a period of 4 years.  He was reduced  to  the
grade of senior airman  (E-4),  with  a  date  of  rank  (DOR)  of  14
September 1995, pursuant to an Article 15.

On 7 September 1995, applicant was notified of his commander's  intent
to impose nonjudicial punishment against him under Article  15,  UCMJ.
The  misconduct  applicant  had  allegedly  committed   was   wrongful
appropriation of a government vehicle, in violation  of  Article  121,
UCMJ.  The applicant consulted a lawyer, waived his right to trial  by
court-martial, and indicated his desire to make a personal and written
presentation  to  the  commander.   After  considering   all   matters
presented to him, the commander found that the  applicant  did  commit
one or more of the offenses alleged.  The commander imposed punishment
of reduction to the grade of senior airman, with a new date of rank of
14 September 1995, forfeiture  of  $661  pay  and  a  reprimand.   The
applicant’s appeal of the nonjudicial  punishment  was  denied  on  25
September 1995.

On 18 September 1995, applicant was notified of his commander's intent
to impose nonjudicial punishment against him under Article  15,  UCMJ.
The misconduct applicant had allegedly committed was failure to go  to
his appointed place of duty at the  appointed  time,  on  or  about  8
September 1995, in violation  of  Article  86,  UCMJ.   The  applicant
consulted a lawyer, waived his right to  trial  by  court-martial  and
indicated his desire to make a personal and  written  presentation  to
the commander.  After considering all matters presented  to  him,  the
commander found that the applicant did  commit  one  or  more  of  the
offenses alleged.  The commander imposed  punishment  of  a  suspended
reduction to the grade of airman first class, a  suspended  forfeiture
of $567 pay, 30 days of extra duty and a reprimand.   The  applicant’s
appeal of the nonjudicial punishment was denied on 24 October 1995.

Information extracted from the applicant’s documentation reveals  that
an administrative discharge board considered all the  evidence,  which
included the two Articles 15 and, by majority  vote,  found  that  the
applicant had not committed the offenses cited  in  the  Articles  15.
The board recommended that the applicant be retained in  the  service.
Since the applicant was retained, the board’s proceedings  are  not  a
matter of record.  Therefore, the dates the discharge proceedings were
initiated and concluded cannot be verified.

Applicant's profile for the last 8 reporting periods follows:

            Period Ending    Evaluation

               3 Aug 90      5 - Ready for Immediate Promotion
              15 Jul 91      4 - Ready for Promotion
            # 12 Aug 92      Removed by Order of SAF
              17 May 93      4
               4 Mar 94      5
              19 Aug 94      4
            * 19 Aug 95      3 - Consider for Promotion
            * 19 Apr 96      3

* Contested EPRs

#In 1994, applicant applied to the Air Force Board for  Correction  of
Military Records (AFBCMR) for removal of  an  EPR,  closing  12 August
1992.  His application was approved by the Board on 15 December 1994.

On 16 September  1996,  the  applicant  requested  that  his  date  of
separation of December 1996 be accelerated to  4  October  1996.   His
request for  an  earlier  date  of  separation  was  approved  by  his
commander on 18 September 1996.  On 4 October 1996, the applicant  was
released from  active  duty,  in  the  grade  of  senior  airman,  and
transferred to the Air Force Reserve under the provisions of  AFI  36-
3208 (Reduction in Force).  He had completed a total of  12  years,  7
months and 11 days of active duty service at the  time  of  discharge.
He received an RE Code of 4D, which defined  means  "Grade  is  Senior
Airman or Sergeant, completed at least 9 years’ Total  Active  Federal
Military Service (TAFMS), but fewer than 16 years’ TAFMS, and has  not
been selected for promotion to staff sergeant.”
_________________________________________________________________

AIR FORCE EVALUATION:

The  Air  Force  Legal  Services  Agency,  AFLSA/JAJM,  reviewed   the
application and concluded that there are  no  legal  errors  requiring
corrective action regarding the nonjudicial punishment. With regard to
the  misappropriation  offense,  JAJM  indicated  that  in  order   to
constitute  wrongful  appropriation  under  Article  121,  UCMJ,   the
government must establish that: (1)  the  applicant  wrongfully  took,
obtained, or withheld the  property  from  its  owner;  (2)  that  the
property had a certain value; and (3) that the taking,  obtaining,  or
withholding was with the intent  temporarily  to  deprive  or  defraud
another person of the use and benefit of the property  or  temporarily
to appropriate the property for the use of the applicant  or  for  any
person other than the owner.  JAJM stated that  it  appears  that  the
applicant  initially  took/obtained  the  vehicle  for  a   legitimate
government function.  The Manual for Courts-Martial (MCM) cites as  an
example of misappropriation, driving a government vehicle on a mission
to deliver supplies, then  withholding  the  vehicle  from  government
service by deviating from the  assigned  route  without  authority  to
visit a friend.  JAJM stated that it can be argued that such  was  the
case here since the applicant had not been specifically authorized  to
quench his thirst or satisfy his hunger.

With regard to the failure to go offense, JAJM stated that,  based  on
the information the commander was provided, he had a sufficient  basis
for finding that the applicant was not where he was  supposed  to  be.
However, MCM requires that the offense of failure to go requires proof
that the accused actually knew of the appointed time and place.   JAJM
stated that it is apparent that,  after  hearing  the  testimony,  the
discharge board members had their doubts.

JAJM stated that in both instances there was  sufficient  evidence  to
support the commander’s finding that the applicant had  committed  the
offenses charged.  The  fact  a  subsequent  administrative  discharge
board made a different finding does not impeach the  decision  of  the
commander.  The finding of the discharge board is not evidence in  and
of itself.  The applicant has not offered any  new  evidence  to  show
that his commander’s decision was not supported in fact.  Accordingly,
the   applicant’s   nonjudicial   punishment   action   was   properly
accomplished and he was afforded all the rights granted by statute.

A complete copy of this evaluation is appended at Exhibit C.


The Enlisted Promotion and Military Testing  Branch,  HQ  AFPC/DPPPWB,
stated that the first time the EPR closing 19 April  1996  would  have
been considered in the promotion process was cycle 96E6  to  technical
sergeant (E-6) (promotions effective August 1996 - July 1997).   On  4
October 1996, the applicant was released from active duty in the grade
of senior airman.  If these adverse actions are voided by  the  Board,
he is reinstated to active duty, and is otherwise qualified to include
recommendation for promotion by the commander, the applicant would  be
entitled to supplemental consideration beginning with the 96E6  cycle.
The last cycle he was considered before he was demoted was cycle  95E6
(promotions effective August 1995 - July 1996).   If  the  request  is
granted, the applicant’s former effective date and date  of  rank  for
staff sergeant  (E-5)  was  1 January  1989.   DPPPWB  defers  to  the
recommendation of AFLSA/JAJM and HQ AFPC/DPPPAB (Exhibit D).


The Chief, BCMR and SSB  Section,  HQ  AFPC/DPPPAB,  stated  that  the
applicant’s request for the EPR, with an  inclusive  period  of  14-29
September 1995, be rewritten.  DPPPAB did not find an EPR with such an
inclusive period.  He has an EPR that closes out  19 August  1995  and
one that closed  out  19  April  1996.   Both  were  rendered  on  the
applicant as a result of substantiated unacceptable off-duty behavior,
fully documented in the Letter of Reprimand  (LOR)  and  Articles  15.
Air Force policy is that an evaluation report is accurate  as  written
when it becomes a matter of  record.   The  applicant  has  failed  to
provide   the   revised   versions   of   the    reports    and    any
information/support from the rating chain on  the  contested  EPRs  to
substantiate his contentions that  an  error  or  injustice  occurred.
DPPPAB stated that in the  absence  of  information  from  evaluators,
official substantiation of  error  or  injustice  from  the  Inspector
General  (IG)  or  Social  Actions,  it  appears  the   reports   were
accomplished in direct accordance with applicable regulations.   Based
on the lack of evidence provided, DPPPAB recommended  the  applicant’s
request concerning the EPR(s) be denied.   A  complete  copy  of  this
evaluation is appended at Exhibit E.


The Special Programs and BCMR Manager, HQ AFPC/DPPAES, stated that the
applicant’s reenlistment  eligibility  (RE)  code  of  4D  is  correct
(Exhibit F).
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to  counsel  on  20
April 1998 for review and response.  As of this date, no response  has
been received by this office (Exhibit G).
_________________________________________________________________

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  probable  error  or  injustice  with  respect  to   the
nonjudicial punishments imposed on the  applicant  under  Article  15,
UCMJ, on 14 September 1995 and  29  September  1995.   Although  there
appears to be no error, per se, in the Article 15 actions, we  believe
the commander may have been overly harsh and unjust in his decision to
take disciplinary action.  We note that  in  Article  15  proceedings,
commanders must act on the basis of information he or  she  determines
to be reliable.  However, unlike the commander who imposed  the  cited
nonjudicial punishments, the subsequent administrative discharge board
found the applicant not guilty of the offenses as charged in the cited
Article 15 actions.

After reviewing all the evidence submitted with this appeal, we  agree
with the findings of the administrative discharge board concerning the
cited Article 15 actions; i.e., that the applicant had  not  committed
the offenses upon which the punishments were premised.  Since we  find
the Article  15  actions  unjust,  the  Enlisted  Performance  Reports
(EPRs), closing 19 August 1995 and 19 April  1996,  which  we  believe
were influenced by the Articles 15, should also be declared void.   As
to  the  reenlistment  eligibility  (RE)  code,   in   view   of   the
aforementioned  recommendation  for   removal   of   the   nonjudicial
punishments, the applicant’s RE code of “4D” is no  longer  applicable
as well as the narrative reason for separation and the separation code
and therefore should be changed accordingly.

Notwithstanding the above, the  Board  majority  is  not  inclined  to
recommend that the applicant be reinstated to active duty just for the
purpose of testing for promotion to technical sergeant  (E-6)  and  he
has not expressed his interest in returning to active duty  to  serve.
Even had such a request been submitted, we would not  be  inclined  to
favorably consider it without  evidence  showing  his  separation  was
involuntarily requested or erroneously effected.  In  addition,  there
is no guarantee that  the  applicant  would  have  been  selected  for
promotion to E-6 during that first cycle, particularly in view of  the
less than top ratings he received on  the  remaining  reports  in  his
record.  The Board majority is of the opinion that,  by  removing  the
contested Articles 15 and EPRs from his record and restoring his grade
of staff sergeant (E-5), the applicant will  be  afforded  proper  and
fitting.  In view of the foregoing, we recommend that the  applicant’s
records be corrected as 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:

      a.    The Article 15, UCMJ, initiated on 7 September 1995,  with
punishment imposed on 14 September 1995, be set aside and removed from
his records and all rights, privileges and property of  which  he  may
have been deprived be restored.

      b.    The Article 15, UCMJ, initiated on 10 September 1995, with
punishment imposed on 29 September 1995, be set aside and removed from
his records and all rights, privileges and property of  which  he  may
have been deprived be restored.

      c.    He was restored to the grade of staff sergeant (E-5), with
an effective date and date of rank of 1 January 1989.  His Certificate
of Release or Discharge from Active Duty, DD Form  214,  issued  on  4
October 1996, be  changed  to  reflect  the  correct  grade  of  staff
sergeant (E-5) instead of senior airman (E-4).

      d.    The Enlisted Performance Reports, AF Forms  910,  rendered
for the periods 20 August 1994 through 19 August  1995  and  20 August
1995 through 19 April 1996, be declared  void  and  removed  from  his
records.

      e.    At the time of his release from active duty on  4  October
1996,  the  narrative  reason  for  his  separation  was  “Secretarial
Authority,” with a reenlistment eligibility (RE) code  of  3K,  and  a
Separation Program Designator code of KFF.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 3 November 1998, under the provisions of AFI  36-
2603:

                  Ms. Rita S. Looney, Panel Chair
                  Mr. Steven A. Shaw, Member
              Mr. Patrick R. Wheeler, Member

Ms. Looney and Mr. Shaw voted to correct the record, as recommended.
Mr. Wheeler voted to grant the applicant’s stated request but did not
desire to submit a minority report.  The following documentary
evidence was considered:

   Exhibit A.  DD Form 149, dated 22 Oct 97, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 3 Feb 98.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 18 Feb 98.
   Exhibit E.  Letter, HQ AFPC/DPPPAB, dated 25 Feb 98.
   Exhibit F.  Letter, HQ AFPC/DPPAES, dated 25 Mar 98.
   Exhibit G.  Letter, SAF/MIBR, dated 20 Apr 98.




                                   RITA S. LOONEY
                                   Panel Chair



AFBCMR 97-03305
INDEX CODE:  126.00, 131.0,110.00




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 APPLICANT be corrected to show that:

            a.   The Article 15, UCMJ, initiated on 7 September 1995,
with punishment imposed on 14 September 1995, be set aside and removed
from his records and all rights, privileges and property of which he
may have been deprived be restored.

            b.   The Article 15, UCMJ, initiated on 10 September 1995,
with punishment imposed on 29 September 1995, be set aside and removed
from his records and all rights, privileges and property of which he
may have been deprived be restored.

      c.    He was restored to the grade of staff sergeant (E-5), with
an effective date and date of rank of 1 January 1989.  His Certificate
of Release or Discharge from Active Duty, DD Form 214, issued on 4
October 1996, be changed to reflect the correct grade of staff
sergeant (E-5) instead of senior airman (E-4).

      d.    The Enlisted Performance Reports, AF Forms 910, rendered
for the periods 20 August 1994 through 19 August 1995 and 20 August
1995 through 19 April 1996, be declared void and removed from his
records.

      e.    At the time of his release from active duty on 4 October
1996, the narrative reason for his separation was “Secretarial
Authority,” with a reenlistment eligibility (RE) code of 3K, and a
Separation Program Designator code of KFF.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency