RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-03007
            INDEX CODES:  111.02, 126.03
                             126.04, 131.00

            COUNSEL:

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15, initiated  on  10 Sep 96,
and imposed on 19 Sep 96, be set aside and removed from his records.

The AF Form 418, Selective Reenlistment Program  Consideration,  dated
21 Dec 96, be declared void and removed from his records.

(By amendment, the applicant also requested the following:)

The Enlisted Performance Report (EPR) closing 22 Oct  97  be  declared
void and removed from his records.

The Unfavorable Information File  (UIF)  and  any  and  all  documents
contained therein, to include the removal of any letters of  reprimand
(LORs) since the Article 15, be declared void  and  removed  from  his
records.

He be given supplemental promotion consideration for all  test  cycles
that have transpired since the date of the Article 15.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He shot a dog belonging to another Air Force member in self-defense of
his children and himself.

He was not derelict in  his  duty  concerning  the  failed  inspection
because he was assigned to another shop from 25 Oct 96 to 3 Dec 96 and
therefore, not responsible for the failed technical order inspection.

The allegations against him  have  no  support  in  law  or  fact  and
evidenced a different mission; that is, to drum him  out  the  service
for reasons other than alleged.   If  the  incident  had  happened  to
anyone else, the Article 15 would never have been written.

In support of his appeal, the  applicant  provided  a  statement  from
counsel, a personal statement, and other documents associated with the
matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System reflects that the
applicant is currently serving on active duty in the grade  of  senior
airman, effective and with date of rank (DOR) of 19 Sep 96.  His Total
Active Federal Military Service  Date  (TAFMSD)  is  12  Jun  78.   He
entered his  most-recent  enlistment  on  29 December  1993,  when  he
reenlisted for a period of 4 years.  He has  an  established  date  of
separation and expiration of term of service of 28 October 1999.

Applicant’s Airman/Enlisted Performance Report (APR/EPR) profile since
1987 follows:

      PERIOD ENDING     EVALUATION

       2 Dec 87        9
      28 Apr 88        6 (Referral)
      27 Aug 88        7 (Referral)
      30 Dec 88        9
      30 Dec 89        9
     30 Jul 90         4 (EPR)
      30 Jul 91        5
      30 Jul 92        4
      30 Jul 93        5
      30 Jul 94        3
      30 Jul 95        4
      30 Jul 96        4
  *  22 Oct 97         2 (Referral)
      22 Oct 98       3

* Contested Report.

On 10 Sep 96, the  commander  notified  the  applicant  that  she  was
considering whether he should be punished under  Article  15,  Uniform
Code  of  Military  Justice  (UCMJ)  based  on  allegations  that  the
applicant, did, on or  about  21  Aug  96,  willfully  and  wrongfully
destroy by shooting in the head twice with a .22  magnum  revolver,  a
pet dog, of a value of about $45.00, the property of TSgt XXXX; and on
or about 21 Aug 96, he was disorderly, which conduct was of  a  nature
that brought discredit upon the armed forces.  On  18  Sep  96,  after
consulting military legal counsel, the applicant waived his  right  to
demand  trial  by   court-martial   and   accepted   the   nonjudicial
proceedings.   He  indicated  that  he  desired  to   make   an   oral
presentation to the  commander  and  submitted  written  comments  for
review.  On 19 Sep 96, after considering the matters presented by  the
applicant, the commander found that the applicant had committed one or
more of the offenses alleged and imposed  punishment.   The  applicant
received a suspended reduction from staff sergeant  to  senior  airman
until 18 Mar 97, conditioned upon his completion of  anger  management
sessions and restitution of $100.00 to TSgt XXXX on or  about  18  Nov
96.  Applicant appealed the punishment but his appeal was  denied.   A
review  by  legal  authority  found  the  Article  15  to  be  legally
sufficient.

On 16 Dec 96, the applicant’s suspended  reduction  to  the  grade  of
senior airman was vacated because, from between on or about 20 Sep  96
to on or about 22 Oct 96, he was derelict in the  performance  of  his
duties in that he willfully failed to obtain a line badge  and  flight
line drivers license; and, from between on or about 20 Sep 96 to on or
about 31 Oct 96, was derelict in the performance of his duties in that
he willfully failed to properly manage the  Automatic  Test  Station’s
Computer Program Identification Number account.  He was reduced to the
grade of senior airman.

An AF Form 418,  dated  21  Dec  96,  reflects  that  the  applicant’s
commander nonselected him for reenlistment.  The  commander  indicated
that the applicant had encountered personal problems which have had  a
negative  impact  on  his   duty   performance,   resulting   in   the
aforementioned problems.  According to the commander, the  applicant’s
continued service was not in the best interest of the Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and recommended denial.   Regarding  the  charges  of  destruction  of
private property and disorderly conduct for  shooting  the  dog,  JAJM
noted that the applicant brought his children into the house after his
son was bitten by the dog to see what happened.  The child had a  bite
wound on his right calf with the skin broken in two places.   The  dog
had also torn the  child’s  pants  leg  and  T-shirt.   The  applicant
admitted in his own statements that he waited approximately 10 minutes
and then went outside and shot the dog twice in the head  with  a  .22
pistol.  The applicant said the dog came at him when he  went  in  the
yard, and he then shot it.  However, he told the owner of the dog that
when the applicant entered the yard, the dog ran  from  him.   It  was
only after he called the dog by name that she came  to  him,  and  the
applicant then shot the dog twice in the head at  point  blank  range.
In JAJM’s view, the passage of 10 minutes before he shot the  dog  and
the fact his children were in the house, out of  harm’s  way,  coupled
with the fact the applicant  had  to  call  the  dog  by  name  before
shooting it, all  tend  to  negate  a  claim  of  self-defense.   JAJM
indicated that there was also evidence submitted by the applicant that
he knew the dog was ill-tempered, but he allowed his children to  play
with the dog anyway.  An affidavit from a third party submitted by the
applicant stated that the dog had growled and  snapped  at  her  on  a
previous occasion, and that she had  witnessed  a  telephone  call  on
another occasion where the applicant called the owner of the  dog  and
asked him to come and get the dog  because  it  was  “rough  with  the
children and acted inappropriately around the children.”

As to the vacation of the  suspended  punishment,  JAJM  stated  that,
according to the commander, the applicant was program manager and  was
still responsible for the account  at  the  time  of  the  inspection.
Also, he was directed  to  obtain  his  line  badge  and  flight  line
drivers’ license by his element chief but failed  to  do  so,  despite
having nearly five weeks to accomplish the tasks.  This was  while  he
was under suspended nonjudicial punishment and knew his behavior would
be closely monitored.

According  to  JAJM,  the  evidence  used  to  support  a  nonjudicial
punishment action is not required to meet  the  “beyond  a  reasonable
doubt standard” of a court-martial.  Accordingly, based on  the  facts
available, the applicant’s nonjudicial punishment action was  properly
accomplished and he was afforded all the rights  granted  by  statute.
The charges against him state an offense under the Uniformed  Code  of
Military Justice (UCMJ), and there were sufficient  facts  to  support
his commander’s findings that he committed the alleged offenses.  JAJM
concluded that there were no legal errors requiring corrective  action
regarding the nonjudicial punishment or the vacation of the  suspended
nonjudicial punishment and that administrative relief by their  office
was not possible.

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

The Skills Management Branch, AFPC/DPPAE,  reviewed  this  application
and  recommended  denial.   DPPAE  indicated  that  a  review  of  the
applicant’s records revealed he was nonselected  for  reenlistment  by
his commander on 21 Dec 96, as documented on  an  AF  Form  418.   The
applicant annotated in Section V of the document his decision  to  not
appeal his commander’s decision for nonselection.  According to DPPAE,
commanders may  reconsider  their  decisions  at  any  time  prior  to
separation.  The applicant currently has a date  of  separation  which
would allow him to retire on 1 Oct  99,  unless  he  is  involuntarily
separated before then.  The applicant has not  provided  any  evidence
contrary  to  his  commander’s  reasons  for  nonselecting   him   for
reenlistment.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, counsel indicated that regarding the applicant’s line
badge and flight line driver’s license, the  applicant  tried  to  get
this matter taken care of as soon as possible but he failed the  test.
Concerning the charge of dereliction of duty on the failed inspection,
the applicant was assigned to another shop at this  time  and  had  no
knowledge of the discrepancies.  He understands that  even  though  he
was not present at the time of the discrepancies,  he  is  responsible
for the personnel under him.

With regard to the dog incident, counsel indicated that  they  believe
this was a civil matter and was handled by  civilian  law.   When  the
civilian  authorities  ruled  that  the   applicant’s   actions   were
justified,  the  commander  decided  to  take  actions   against   the
applicant.  According to counsel, the  military  has  no  evidence  to
support the charges that the applicant was wrong and  responsible  for
shooting of the dog, except for a statement made from the owner of the
dog  All other evidence  and  civilian  authorities  stated  that  the
applicant’s actions were justified.

Counsel’s complete response is at Exhibit F.

By letter, dated 3 Nov  98,  the  applicant  amended  his  request  to
include removal of his Enlisted Performance Report  (EPR)  closing  22
Oct 97, any AF Form 418 that has been established since the imposition
of the Article 15, the removal of a letter of reprimand and  resulting
Unfavorable Information File (UIF), and, that he be given supplemental
promotion consideration for all cycles subsequent to the  Article  15.
According to the applicant, his  punishment  did  not  stop  with  the
Article 15, it was just the beginning (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.

      a.  After reviewing the facts and circumstances of this case, we
find substantial doubt has been created as to  whether  the  applicant
should have received  nonjudicial  punishment  under  Article  15  for
shooting the dog he was keeping for another Air Force member after the
dog had attacked his son.  We note that the incident occurred off base
and was investigated by civil authorities.  They  concluded  that  the
shooting of the animal was justified.  Nevertheless,  the  applicant’s
commander decided to take action against him because she believed  his
actions were inappropriate.  However, after witnessing the  attack  on
his son, it appears that the applicant believed that the dog  posed  a
threat to himself and his family.  We are just not persuaded that  the
applicant acted improperly given the  circumstances  and  believe  any
doubt  concerning  this  matter  should  be  resolved  in  his  favor.
Accordingly, we recommend that the Article 15 be  voided  and  removed
from his records.

      b.  We are not  necessarily  convinced  the  applicant  did  not
commit the  offenses  that  resulted  in  vacation  of  the  suspended
nonjudicial punishment.  However, in view of the above, and to  remove
the possibility of an injustice, we also recommend that  the  AF  Form
366 be voided and removed from the applicant’s records.

      c.  Since it appears to us that the EPR closing 22  Oct  97  may
have been based on the Article 15 punishment, and,  in  light  of  our
recommendation to have it removed from  the  applicant’s  records,  we
believe that the contested EPR should also be voided and removed  from
his records.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice regarding  the  following
issues.

      a.  We note that the applicant’s commander nonselected  him  for
reenlistment  because  she  believed  that  the  applicant’s  personal
problems had negatively impacted his duty performance.  The  commander
further indicated that the applicant’s continued service  was  not  in
the best interest of  the  Air  Force.   It  would  appear  that  this
nonselection was based, in part, on the acts which served as bases for
the Article 15 vacation action.  While we  have  determined  that  the
vacation action should be set aside based on our findings with respect
to the Article 15 itself, the applicant has provided no evidence which
would lead us to believe that he did not commit the offenses cited  in
the AF Form 366.   In  view  of  the  foregoing,  the  evaluations  of
performance the applicant received on his  EPRs  for  his  performance
over several years preceding the events under review,  and  given  the
Air Force’s emphasis on quality, we are not inclined  to  reverse  the
decision by the commander to nonselect the applicant for reenlistment.
 Accordingly, the applicant’s request that the AF Form 418,  dated  21
Dec 96, and any subsequent AF Form 418 denying  him  reenlistment,  be
removed from his records is not  favorably  considered.   Furthermore,
since it appears that the  AF Form  418  documenting  the  applicant’s
nonselection for reenlistment automatically renders him ineligible for
promotion  consideration,  his  request  for  supplemental   promotion
consideration is also not favorably considered.

      b.  We note the applicant’s request that a UIF and all documents
contained therein, to include any LORs, be removed from  his  records.
However, no evidence has been presented showing the existence of a UIF
containing any LORs in the applicant’s record.  In view of this  fact,
and in the absence of evidence to the contrary, applicant’s request is
not favorably considered.

_________________________________________________________________

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 nonjudicial punishment under Article 15, UCMJ, initiated
on 10 Sep 96 and imposed on 19 Sep 96; and, the AF Form 366, Record of
Proceedings of Vacation of Suspended Nonjudicial Punishment, dated  19
Dec 96, be declared void  and  expunged  from  his  records,  and  all
rights, privileges, and property of which he may have been deprived be
restored.

      b.  The Enlisted Performance Report, AF Form 910,  rendered  for
the period 31 Jul 96 through 22 Oct 97, be declared void  and  removed
from his records.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 10 Dec 98, under the provisions of AFI 36-2603:

      Mr. Henry C. Saunders, Panel Chair
      Ms. Ann L. Heidig, Member
      Ms. Sophie A. Clark, Member

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

     Exhibit A.  DD Form 149, dated 6 Oct 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 24 Oct 97.
     Exhibit D.  Letter, AFPC/DPPAE, dated 24 Nov 97.
     Exhibit E.  Letter, SAF/MIBR, dated 8 Dec 97.
     Exhibit F.  Letter, counsel, dated 5 Dec 97, w/atchs.
     Exhibit G.  Letter, applicant, dated 3 Nov 98.




                                   HENRY C. SAUNDERS
                                   Panel Chair




AFBCMR 97-03007




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 nonjudicial punishment under Article 15, UCMJ,
initiated on 10 Sep 96 and imposed on 19 Sep 96; and, the AF Form 366,
Record of Proceedings of Vacation of Suspended Nonjudicial Punishment,
dated 19 Dec 96, be, and hereby are, declared void and expunged from
his records, and all rights, privileges, and property of which he may
have been deprived be restored.

            b.  The Enlisted Performance Report, AF Form 910, rendered
for the period 31 Jul 96 through 22 Oct 97, be, and hereby is,
declared void and removed from his records.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency