RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-00041
                 INDEX CODE:  126

                 COUNSEL:  NONE

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15, imposed on 23 June 1995, be set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His punishment under the Article 15 was unjust.  There were  two  top-
ranked officers who were only  given  letters  of  reprimand  for  the
dealings  with  misappropriation  of  base  furniture.   Neither   his
(applicant’s) commander or the appellate authority thoroughly reviewed
all of the evidence.  The attorney who advised the appellate authority
had also counseled his (applicant’s)  wife  just  six  months  earlier
regarding divorce proceedings.  Applicant states that he was not given
access to a  video  tape  which  portrays  one  of  the  alleged  loan
transfers and, that the two contractors are of questionable character.
 Applicant believes  that  Department  of  Defense  Regulation  (DoDR)
5500.7-R does not apply to enlisted personnel.

In support of his appeal,  applicant  submits  numerous  Exhibits,  to
include Congressional  correspondence,  Article  15  actions  and,  an
Office of Special Investigations (OSI) report.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant, while serving in the grade of master  sergeant  (E-7),  was
notified by his commander that he (commander) was considering  whether
he should punish the applicant  under  Article  15,  Uniform  Code  of
Military Justice  (UCMJ)  for  the  following  alleged  misconduct  in
violation of Article 92:  Specification 1:  That applicant did, at  or
near Lajes Field, Azores, Portugal, on divers occasions between on  or
about 8 December 1994 and on or about 9 January 1995, violate a lawful
general  regulation,  to  wit:   Section  2-100,  DoDR  5500.7-R,   by
wrongfully soliciting an $8,000.00 (U.S. currency) personal loan,  and
a co-signature on a bank loan, and wrongfully soliciting and accepting
a 1,610,000$00 (Portuguese currency) personal loan from Joao  Meneses,
a contractor, whose work the applicant inspected in the course of  his
official duties.  Specification 2:  Applicant did, at  or  near  Lajes
Field, Azores, Portugal, on or about  1  May  1994  and  on  or  about
30 June 1994, violate a lawful general regulation, to wit:  Section 2-
100, DoDR 5500.7-R, by wrongfully soliciting and accepting a $1,000.00
(U.S. currency) personal loan from Jimmy McFadden, a contractor  whose
work the applicant inspected in the course of his official duties.

On 19 June 1995, applicant indicated he did consult a  lawyer,  waived
his right to court-martial, did  request  a  personal  appearance  and
attached a written presentation.  The commander considered the matters
in defense, mitigation, or extenuation and found  that  the  applicant
did commit the offenses alleged.   On  23 June  1995,  the  punishment
imposed was a reduction to the grade of technical sergeant (E-6), with
a new date of rank of 23 June 1995,  forfeiture  of  $967.00  pay  per
month for two months and 45 days’ extra duty.  Applicant appealed  the
Article 15 and punishment on 23 June 1995.   The  Appellate  Authority
denied the appeal on 29 June 1995.  The Article 15  action  was  found
legally sufficient on 5 July 1995.

Available  information  indicates  that  the  applicant  applied   for
retirement on 23 September 1994.

Applicant was subsequently honorably  released  from  active  duty  on
30 September 1995 and  retired  (Sufficient  Service  for  Retirement)
effective 1 October 1995 in the grade of technical sergeant (E-6).  He
served 21 years, 2 months and 20 days of active military service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate  Chief,  Military  Justice  Division,  Air  Force  Legal
Services Agency, AFLSA/JAJM, states that applicant alleges that he was
treated more  harshly  than  senior  officers  who  committed  similar
offenses.  However, the supporting  documentation  reflects  that  the
base legal office was aware of an 0-5 and an 0-6 who were involved  in
a “dissimilar incident.” The applicant’s punishment was  within  legal
limits for the incidents charged.  Applicant has provided no  evidence
that his commander only briefly consulted with the  base  staff  judge
advocate (SJA) before imposing punishment or that the commander failed
to  thoroughly  review  the  matters  presented  in  extenuation   and
mitigation.  Applicant also has no evidence to support his  contention
that the appellate authority’s review was a cursory one.

The applicant states  that  the  attorney  advisor  to  the  appellate
authority was the same attorney who provided divorce advice in a legal
assistance setting to the applicant’s wife six months earlier.   There
was no need for the attorney  to  recuse  himself  from  advising  the
commander on the nonjudicial punishment proceeding.   It  was  totally
unrelated to the generic  advice  rendered  in  the  legal  assistance
setting.

Applicant also states he was not given access to a  video  tape  which
portrays the solicitation and acceptance of the personal loans.   Part
V, paragraph 4a(3), Nonjudicial Punishment procedure,” in  the  Manual
for Courts-Martial, states that the notice of  nonjudicial  punishment
shall include a brief  summary  of  the  information  upon  which  the
allegations are based  or  a  statement  that  the  member  may,  upon
request, examine available evidence.  (The applicant allegedly did not
ask to see a videotape  referenced  in  the  OSI  report  because  his
defense attorney was told there  was  not  one).   Paragraph  4c(1)(D)
states that if the service member requests a personal  appearance,  he
shall be entitled to examine the physical objects  against  him  which
the nonjudicial punishment authority has examined in  connection  with
the case and on which the nonjudicial punishment authority intends  to
rely in deciding  whether  and  how  much  nonjudicial  punishment  to
impose.  Assuming arguendo that the nonjudicial  punishment  authority
did view such a videotape, paragraph 1h of Part V states that  failure
to comply with any of the procedural violations of Part  V  shall  not
invalidate a punishment imposed under Article  15,  unless  the  error
materially prejudiced a substantial right of the service member.   The
applicant does not deny liability and the punishment was within  legal
limits.   Thus,  none  of  his  substantial  rights  were   materially
prejudiced.

The applicant questions the credibility of the two  contractors,  both
of whom were interviewed by  the  OSI  in  this  case.   However,  the
personal legal situation of the two contractors is irrelevant  to  the
charges which underlie the Article 15.

The applicant is  mistaken  that  DoDR  5500.7-R  does  not  apply  to
enlisted personnel.  Subsection 1-211 of DoDR 5700. (sic) 7-R  defines
a “DoD employee” to include “[a]ny active  duty  enlisted  members  of
the. . . Air Force. . .”

The applicant also states that the Separations and Retirements  Branch
at the Air Force Military Personnel Center, Randolph Air  Force  Base,
Texas, was conducting a grade determination and that he has  not  been
informed of its decision.  Documentation in the file reflects that the
Separations and Retirements Branch referred  the  grade  determination
package to the Air Force Personnel Council on 8 August 1995.  After  a
review of the subject application and available records, the Associate
Chief, AFLSA/JAJM finds the applicant was afforded  all  rights  under
the UCMJ and relief is not warranted.  Recommend  the  application  be
denied.

A copy of the Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Applicant submitted a response and states, in summary, that  he  feels
he has provided enough information to do  away  with  the  Article  15
imposed on him three years ago.  Applicant alleges that  there  is  so
much information in the OSI report that is  totally  inconsistent  and
wrong.  Also, the final blow also came when he retired and found  that
he was disapproved for the Air Force  Good  Conduct  Medal  four  days
before the Article 15 punishment was imposed.

A complete copy of the applicant’s response is attached 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 probable error or injustice.  After a thorough review
of the evidence of record and applicant’s complete submission, we  are
not persuaded that the Article 15 was either in error  or  unjust  and
agree with the rationale provided by  the  Air  Force  Legal  Services
Agency (AFLSA).   On  reaching  this  conclusion,  we  considered  the
following:

    a.  Applicant’s contention that two top-ranked officers were  only
given Letters of Reprimand for dealings with misappropriation of  base
furniture,  is  noted.   However,  as  stated  by  AFLSA,   supporting
documentation reflected that the base legal office was  aware  of  the
officers involved but this was a dissimilar incident.  We observe that
each case is unique and there are factors involved  which  makes  each
case different.  We have  found  no  evidence  to  indicate  that  the
applicant’s punishment  was  not  within  the  legal  limits  for  the
incidents charged.

    b.  The applicant also alleges that  his  commander  only  briefly
consulted with the base staff judge  advocate  (SJA)  before  imposing
punishment and  that  he  failed  to  thoroughly  review  the  matters
presented in extenuation and  mitigation.   However,  he  provides  no
evidence to support these allegations.  The Article 15 indicates  that
the appellate  authority  denied  the  appeal  after  considering  all
matters presented in the appeal and referral to  the  SJA.   Applicant
also contends that the attorney who advised  the  appellate  authority
also  counseled  his  (applicant’s)  wife  earlier  regarding  divorce
proceedings.  However, as stated by AFLSA, there was no need  for  the
attorney to recuse himself from advising the applicant’s commander  on
the Article 15 proceeding as it was totally unrelated to  the  generic
advise rendered in the legal assistance setting.

    c.  Applicant’s contention that he was not given access to a video
tape which portrayed  one  of  the  loan  transfers,  is  noted.   The
nonjudicial punishment procedure in Part V of the Manual  for  Courts-
Martial states that failure to  comply  with  any  of  the  procedural
violation of Part V shall not invalidate a  punishment  imposed  under
Article 15 unless the error materially prejudiced a substantial  right
of the service member.  The applicant does not deny liability  and  as
stated by AFLSA, the punishment was within legal limits  and  none  of
applicant’s substantial rights were materially prejudiced.

    d.  Applicant also contends that the two contractors involved  are
of questionable character because of illegal commissary  use  and  tax
evasion on  the  part  of  one  contractor  and  confiscation  by  the
Portuguese government of both contractor’s vehicles.  According to the
evidence presented, the two contractors were interviewed by the Office
of Special Investigations  (OSI).   However,  AFLSA  states  that  the
personal legal situation of the two contractors is irrelevant  to  the
charges which underlie the Article 15 and we agree.

    e.  The  applicant  believes  that  the  Department   of   Defense
Regulation (DoDR) 5500.7-R  does  not  apply  to  enlisted  personnel.
However, this regulation does define  a  DoD  employ  to  include  any
active duty enlisted  members  of  the  Air  Force  and  therefore  is
relevant to the applicant’s issues.

    f.  In the applicant’s rebuttal to the Air Force  evaluations,  he
also states that he was disapproved for the  Air  Force  Good  Conduct
Medal (AFGCM) four days before the Article 15 punishment was  imposed.
We note that this medal is awarded upon  completion  of  a  three-year
period of continuous service from the AFGCM start date.   It  is  also
based upon recommendation of the unit  commander  if  he  believes  an
individual’s  conduct  has  been  exemplary.   It  appears  that   the
applicant’s commander felt the applicant was no longer deserving of an
AFGCM, having been served an Article 15 with a reduction in grade,  as
stated in the  commander’s  letter,  dated  20  June  1995,  which  is
attached to the applicant’s submission.  We therefore agree  with  the
recommendations of the Air Force 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  with
regard to the Article 15 and we find no compelling basis to  recommend
that the Article 15 be set aside.  Likewise,  we  find  no  compelling
reason to conclude that the denial of the AFGCM was either in error or
unjust.

4.  Notwithstanding the above recommendation, we note  that  applicant
held the higher grade of master sergeant with a date of rank (DOR)  of
1 January 1993.  The Article 15 action reduced his grade to  technical
sergeant and he  was  serving  in  that  grade  at  the  time  of  his
retirement.  However, there is a provision of law that allows  retired
enlisted members who retire with less than 30 years of active  service
to be advanced on the retired list to the highest grade in which  they
served on active duty satisfactorily when their  active  service  plus
service on  the  retired  list  totals  30  years.   At  the  time  of
applicant’s retirement, he had 21 years,  2  months  and  20  days  of
active service.  It appears  that  the  Secretary  of  the  Air  Force
Personnel Council, acting in behalf of the Secretary of the Air Force,
considered and denied  a  grade  determination  package  to  determine
whether or not the applicant should be advanced to the grade of master
sergeant on the retired  list  when  his  total  service,  active  and
retired, reaches thirty years.  We acknowledge that the  Secretary  of
the Air Force Personnel Council is entitled to a degree  of  deference
concerning their decision to deny applicant's request for  advancement
on the retired list.  However, the commander,  who  was  in  the  best
position to weigh the evidence and judge the applicant's  credibility,
determined that the committed offenses were not so egregious to  merit
trial by court-martial.  Rather, it appears, he believed that imposing
the Article 15 was sufficient punishment.  In this respect,  according
to the UCMJ, nonjudicial punishment is intended to  be  corrective  in
nature; therefore, we believe  to  further  punish  applicant  by  not
allowing him to be advanced on the retired list at the  30-year  point
is unduly harsh and, therefore, unjust.  The reduction in  grade,  the
forfeiture of $1934.00, the 45 days of extra duty, and the curtailment
of his Air Force career were sufficient punishment for what appears to
be but one blemish on applicant's otherwise  outstanding  record.   In
view of the above, we recommend  that  his  records  be  corrected  to
reflect that he will be advanced to the grade of  master  sergeant  on
the retired list at the 30-year point.

_______________________________________________________________________
_____________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating  to  APPLICANT,  be  corrected  to  show   that   he   served
satisfactorily in the higher grade of master sergeant (E-7) within the
meaning of Section 8964, Title 10, United States Code and that  he  be
advanced to that grade on the  Retired  List  effective  the  date  of
completion of all required service.

_______________________________________________________________________
_____________________

The following members of the  Board  considered  this  application  in
Executive Session on 15 December 1998, under the provisions of AFI 36-
2603:

                  Ms. Martha Maust, Panel Chair
                  Mr. Frederick A. Beaman III, Member
              Ms. Patricia D. Vestal, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 5 Jan 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 23 Feb 98.
   Exhibit D.  Letter, AFBCMR, dated 18 Mar 98.
   Exhibit E.  Applicant’s Letter, undated.




                                   MARTHA MAUST
                                   Panel Chair
INDEX CODE:  126

AFBCMR 98-00041




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 ---- ----, -------be corrected to show that he
served satisfactorily in the higher grade of master sergeant (E-7)
within the meaning of Section 8964, Title 10, United States Code and
that he be advanced to that grade on the Retired List effective the
date of completion of all required service.







   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency