RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-02556
            INDEX CODES:  131.00, 136.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His rank of technical sergeant be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His record does not reflect his appropriate pay grade.  He was alleged
to have been guilty of violations of  the  Uniform  Code  of  Military
Justice (UCMJ).  However, it has been determined that he was  innocent
of all charges.

In support of his appeal, the applicant provided a personal statement,
a copy of the administrative discharge board  proceedings,  and  other
documents associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant initially enlisted in the Air Force Reserve on 12 Jul 77, in
the grade of sergeant.  Information extracted from the Personnel  Data
System  (PDS)  indicates  that  he  is  currently  assigned   to   the
Nonobligated Nonparticipating Ready Personnel Section (NNRPS)  of  the
Air Force Reserve in the grade of airman first class (A1C).  Prior  to
the matter under review, the applicant was progressively  promoted  to
the grade of technical sergeant.

On 23 May 94, the applicant’s  commander  notified  him  that  he  was
considering whether he should be punished under  Article  15,  Uniform
Code of Military Justice (UCMJ), based on allegations that,  while  on
annual tour active duty, on or about 18  May  94,  the  applicant  was
derelict in the performance of  his  duties  in  that  he  negligently
failed to remain awake and alert while training on the  computer  data
system.  The applicant was advised of his rights in the  matter.   The
applicant waived his  right  to  demand  trial  by  court-martial  and
accepted the nonjudicial proceedings under Article 15.  On 25 May  94,
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  was  reduced
from the grade of technical sergeant to staff sergeant.  The applicant
did not appeal the punishment.  On 12 Jun 94,  legal  authority  found
that  the  nonjudicial  proceedings  under  Article  15  were  legally
sufficient.

By Reserve Order   , dated    , the applicant  was  demoted  from  the
grade of staff sergeant to the grade of airman first class for failing
to fulfill his noncommissioned officer (NCO) responsibilities.

On 22 Jul 96, an administrative discharge board  was  convened  at  HQ
AFRES,     , to determine  whether  the  applicant  should  have  been
discharged from the United States Air Force  Reserve  for  misconduct.
After considering  the  evidence,  the  board  found:   (1)  that  the
applicant had on or about 13 Apr 94 unlawfully entered   ; (2) that on
or about 18 May 94, he was derelict in the performance of  his  duties
because he failed to remain awake while on duty; and (3) that on 3 Dec
95, he made unwarranted and unwanted physical contact  with  a  female
NCO.  Based  upon  these  findings,  the  Board  determined  that  the
applicant was subject to separation from the United States  Air  Force
Reserve.  The board recommended the applicant’s retention in  the  Air
Force Reserve and his reassignment to another Air Force Reserve  unit.
In making these recommendations, the board stated that it believed the
applicant’s retention was in  the  best  interest  of  the  Air  Force
Reserve.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Personnel Division,     , reviewed this  application  and
noted that a review of the  demotion  actions  against  the  applicant
indicated he was demoted  from  technical  sergeant  (TSgt)  to  staff
sergeant (SSgt), under the authority of Article 15  action,  effective
23 May 94, for dereliction of duty.  He was demoted again from SSgt to
airman first class (A1C), effective 19  Apr  96,  for  a  demonstrated
pattern of misconduct and failure to fulfill his NCO responsibilities.
 Based on  the  documentation  reviewed,  DPM   recommended  that  the
applicant’s request be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  27
Oct 97 for review and response.  As of this date, no response has been
received by this office (Exhibit D).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The  Staff  Judge  Advocate,     ,  reviewed  this   application   and
recommended  denial.   JA   indicated   that   the   fact   that   the
administrative discharge board recommended the  applicant’s  retention
and reassignment to the  Discharge  Authority  in  no  way  mitigates,
condones,  or  extenuates  the  applicant’s  proven  misconduct.   The
applicant was returned to duty with his unit  after  approval  of  the
findings of the administrative discharge board and acceptance  of  its
recommendations by the Discharge Authority, the  Vice  Commander,  Air
Force Reserve, on 22 Aug 96.  According to  JA,  the  record  did  not
indicate that the applicant’s reassignment  ever  occurred.   However,
despite the applicant’s allegations of mistreatment and  violation  of
equal opportunity and treatment policies in the  application,  he  has
presented no evidence to sustain his request for reinstatement to  the
grade of Reserve technical sergeant.  In JA’s opinion, the applicant’s
current grade of Reserve airman first class is the grade to  which  he
is entitled.

JA indicated that a further recommendation is based upon their  belief
that the applicant has served satisfactorily in the grade  of  Reserve
airman first class and should lose neither the entitlements of Reserve
retired pay at age 60, nor the “Gray Area” benefits to which Air Force
Reserve members who are assigned to the Retired Reserve  are  entitled
until they reach age 60.  Accordingly, JA recommended that  the  Board
award  the  applicant  one  day  of  satisfactory  service   for   the
applicant’s retention/retirement year of 17 Jul 96 through 16  Jul  97
in order to entitle the applicant to Reserve retired pay at age 60 and
direct the applicant’s transfer to the Retired Reserve, in  the  grade
of Reserve airman first class, effective 6 Apr 97.

A complete copy of the JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  30
Nov 98 for review and response.  As of this date, no response has been
received by this office (Exhibit F).

_________________________________________________________________

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  with  regard  to  the
applicant’s request that his rank of technical sergeant be reinstated.
 The evidence of record reflects that the applicant was  reduced  from
the grade of technical sergeant to  staff  sergeant  as  a  result  of
nonjudicial  punishment  under  Article  15.   The  evidence   further
indicates that he was demoted from the grade of staff sergeant to  the
grade  of  airman  first  class  for  failing  to  fulfill   his   NCO
responsibilities.  No evidence has been presented which has  shown  to
our satisfaction that the information used as a basis for the  Article
15 and demotion actions was  erroneous,  or  there  was  an  abuse  of
discretionary authority.  In view of the above, and in the absence  of
evidence to the contrary, we agree with the recommendation of the  Air
Force  offices  of  primary  responsibility  (OPRs)  and  adopt  their
rationale as the basis for our decision that the applicant has  failed
to sustain his burden of establishing that he has suffered  either  an
error or an injustice.  Accordingly, we find no  compelling  basis  to
recommend granting the relief sought in this application.

4.  Notwithstanding the above, we note that the applicant has over  19
years of satisfactory service for retirement and that he continued  to
serve satisfactorily following his demotion to  the  grade  of  airman
first class.  In view of the applicant’s  lengthy  history  of  active
participation, we agree with ARPC/JA that it would be in the  interest
of justice to afford the applicant the  relief  that  would  make  him
eligible for a Reserve retirement.  Therefore, 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 he was  not  assigned
to the Nonobligated Nonparticipating Ready Personnel  Section  (NNRPS)
on 21 Aug 98, but rather, he was transferred to the  Retired  Reserve,
Awaiting Pay at Age 60, effective 6 Apr 97.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 3 Aug 99, under the provisions of AFI 36-2603:

      Mr. Robert W. Zook, Panel Chair
      Ms. Dorothy P. Loeb, Member
      Ms. Peggy E. Gordon, Member

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

     Exhibit A.  DD Form 149, dated 16 Aug 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFRC/DPM, dated 2 Oct 97.
     Exhibit D.  Letter, SAF/MIBR, dated 27 Oct 97.
     Exhibit E.  Letter, ARPC/JA, dated 12 Nov 98, w/atchs.
     Exhibit F.  Letter, SAF/MIBR, dated 30 Nov 98.




                                   ROBERT W. ZOOK
                                   Panel Chair










AFBCMR 97-02556




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 was not assigned to
the Nonobligated Nonparticipating Ready Personnel Section (NNRPS) on
21 Aug 98, but rather, he was transferred to the Retired Reserve,
Awaiting Pay at Age 60, effective 6 Apr 97.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency