RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00247
                             INDEX CODE: 126.04

                             COUNSEL: None

                             HEARING DESIRED: Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The punishment imposed upon him under  Article  15,  Uniform  Code  of
Military Justice (UCMJ), dated 11 April 1995, be set aside.

2.    His rank of staff sergeant (SSgt) be restored.

3.    His reenlistment eligibility (RE) code be changed to one  that  allows
him to be  eligible  for  the  Voluntary  Separations  Incentive  (VSI)  and
Special Separation Benefit (SSB) Program entitlements.

4.    He be awarded the Air Force Commendation Medal (1st Oak Leaf  Cluster)
(AFCM, 1OLC) and the Air Force Good Conduct Medal  (3rd  Oak  Leaf  Cluster)
(AFGCM, 3OLC).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The first accusation  did  not  happen  and  the  second  incident  was  not
offensive or harassment until that person was to be terminated.  This  is  a
clear case of retaliation and did not warrant these proceedings.  He was  to
be separated from the Air Force on 1  June  1995  under  the  VSI.   He  was
selected to receive the AFCM, 1OLC, and the AFGCM, 3OLC.  He was reduced  in
rank to senior airman with a reduction in pay and forfeit all of the  above.
 He still continues to serve very proudly in the Air Force  Reserve  (AFRES)
as a SSgt.

In support of his request, he submits  a  personal  statement,  Request  and
Authorization  for  Separation,  Article  15  and  documentation,  Character
References, and Enlisted Performance Reports.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 11 April 1995, the applicant was notified of his  commander's  intent  to
impose nonjudicial punishment upon him for (1) on or about 15 July 1994  and
15 August 1994, unlawfully touching M---  R---  C---  on  her  left  breast,
shoulders, and back with his hands, and (2) on or  about  20  October  1994,
orally communicate to L--- E--- certain indecent language.

On 14 April 1995, after consulting with counsel, the  applicant  waived  his
right to a trial by  court-martial,  requested  a  personal  appearance  and
submitted a written presentation.

On 1 May 1995, the applicant’s commander found that he  did  commit  one  or
more  of  the  offenses  alleged  and  imposed  the  following   punishment:
reduction to the grade of senior airman, with a new date of rank  of  1  May
1995, and forfeiture of $661.00 pay.  The forfeiture was suspended  until  3
November 1995.

Applicant did appeal the punishment; however, the appeal was  denied  on  19
May 1995.  The Article 15 was filed  in  his  Unfavorable  Information  File
(UIF).

The applicant had an approved separation date of 1 June 1995 under VSI.

Due to  a  RE  code  of  2J-Under  investigation  by  military  or  civilian
authority, the outcome of which may result  in  discharge  or  court-martial
action, his VSI was withdrawn.  IAW the policy of the FY95  VSI  program,  a
member with an RE code of 2J was not eligible for the program.

EPR profile since 1990 reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

            06 Mar 90             5
            06 Mar 91             5
            06 Mar 92             5
            06 Mar 93             5
            06 Mar 94             5
            06 Mar 95             5

The applicant was awarded the AFGCM, Basic and AFGCM with 1 and 2  oak  leaf
clusters.

The applicant was honorably discharged on 3 December 1995 in  the  grade  of
senior airman, under AFI 36-3208, Completion of Required Active Service  and
given an RE code of “1J.”  RE Code “1J”
indicates “Eligible to reenlist but elects separation.”  Applicant served  a
total of 11 years, 10 months, and 14 days of total active military service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  Air  Force  Legal  Services
Agency, reviewed the application and states that the facts of this  case  do
not warrant a set aside of the applicant’s Article 15.  The Article  15  was
properly accomplished and the applicant was afforded all rights  granted  by
statute  and  regulation.   The  applicant  was  properly   and   thoroughly
represented by counsel  and  given  ample  opportunity  to  provide  written
responses to the commander.  The present assertion that the  victim  of  the
offensive touching fabricated the incident because she was envious that  her
former co-worker, the applicant’s wife, is now  her  supervisor,  is  not  a
valid reason for setting aside the Article 15.  There is  no  evidence  that
the commander and the appellate authority  were  anything  but  neutral  and
objective.  It is at the commander’s discretion to determine if  an  offense
was committed.  While it is commendable that the  applicant  apparently  was
very remorseful that he used indecent language, the  Article  15  punishment
remains today, as it was at the time it was imposed, a  completely  accurate
characterization of the applicant’s misconduct.  His apparent ability to  be
remorseful for his actions does not  erase  the  fact  that  the  commander,
after  careful  consideration,  determined  he  deserved  punishment.    The
Article  15  punishment  administered  was  within  legal  limits  and   was
appropriate to the offenses.  It was not unjust  or  disproportionate.   The
applicant’s assertion that  he  continues  to  serve  very  proudly  in  the
Reserves does not erase the fact that an appellate authority, after  careful
consideration, determined that he deserved the Article  15.   Setting  aside
the Article 15 would  diminish  the  value  of  the  nonjudicial  punishment
process.  They recommend the application be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory  opinion  and  states  he  had  obtained
counsel in November 1994 when the  accusations  came  about,  not  in  April
1995.  The case was referred to  a  Special  court-martial.   It  opened  in
court on or about 28 March 1995.  He did not initially  accept  the  Article
15.  The day after the court-martial opened, his Area Defense Council  (ADC)
met with the
Judge Advocate (JA) of the legal office and reviewed  his  defense  package.
The JA then dismissed the  case  and  recommended  an  Article  15  be  done
instead.  At this point the investigation had been going on  for  over  five
months and he needed it to be over to continue with the early separation  on
1 June 1995.  The ADC had told him that his commander  would  have  to  hear
all the witnesses and testimony just as if it would be in the  court-martial
and would make a fair, honest decision.  This is the only  mistake  that  he
had made.  After the Article 15 proceedings, he did some investigating.   He
met with the Senior Enlisted Advisor  of  Luke  AFB.   The  Senior  Enlisted
Advisor told him that no commander in his 28-year career had ever  dismissed
charges on an Article 15.  In retrospect, he very well may have faired  much
better in a court-martial.  In his haste to end this matter,  his  commander
found  him  guilty,  never  mind  eyewitnesses  and  testimony.   He  firmly
believes that he had a very strong chance of being  acquitted.   Of  course,
so did the legal office or the charges would not have  been  withdrawn.   He
did nothing unlawfully to anyone.  The alleged  victim  claimed  he  fondled
her in front of a witness.  The witness gave a  personal  appearance  during
the Article 15 proceeding and a written statement saying  that  nothing  had
occurred and she was never out of sight of him and the alleged victim.   The
one time comment was not harassment or indecent.  It was not brought to  his
attention that it was offensive or bothered this alleged victim and was  not
an issue until this  person  had  been  terminated  by  his  spouse.   After
reviewing the witnesses testimony, comments from fellow service members  and
friends, he hopes that you will know that he  did  not  commit  the  alleged
offenses.  Grant him relief of this injustice.  Remove the Article  15  from
his military records and allow him what he had worked for and deserves.

Applicant's complete response is attached at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief,  Retirements  Branch,  Directorate  of  Personnel  Program  Mgmt,
AFPC/DPPRR, reviewed the application  and  states  that  unless  the  AFBCMR
changes the RE code to one that was eligible under  the  FY95  VSI  program,
the applicant remains ineligible.  No errors or  injustice  occurred  during
the processing or  withdrawal  of  the  applicant’s  VSI.   Therefore,  they
recommend denial.

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

The Air Force Legal Service Agency,  AFLSA/JAJM,  reviewed  the  application
and states that no further review is necessary.

A complete copy of the evaluation is attached at Exhibit F.

The Chief, Recognition Programs Branch, Promotions, Eval & Recognition  Div,
AFPC/DPPPRA, reviewed the application and states the  applicant  has  failed
to substantiate his claim for either  the  AFGCM,  based  on  completion  of
three years continuous active federal military service, or the  AFCM,  1OLC,
based on a  recommendation  package.   Individuals  are  not  “selected”  to
receive decorations.   A  recommendation  package  must  be  submitted  into
official  channels  and  determined  by   the   final   approval/disapproval
authority.  They recommend disapproval of the applicant’s request for  award
of the AFCM and AFGCM.

A complete copy of the evaluation is attached at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and states the Board has it  in
their power to look at the evidence that has been presented  and  to  change
the RE code to one that allows him  to  receive  the  VSI/SSB  entitlements.
The Air Force insists that there were no  errors  or  injustice  during  the
processing or withdrawal  of  his  VSI  and  that  no  errors  or  injustice
occurred in the processing of the Article 15.  While  it  is  true  all  the
“T”s were crossed and the “I”s were dotted, the fact of the matter is he  is
innocent of  any  wrongdoing  and  that  the  Article  15  should  not  have
occurred.  The JAG at Luke AFB knew this to be true and that is why  it  was
dismissed.  Everyone involved knew that the commander was under pressure  to
sign a guilty verdict if for no other reason than to justify  the  time  and
money on this investigation (over six months).  He  is  sure  the  commander
was looking out for his own career instead of his troops.

Applicant's complete response, with attachments, is attached at Exhibit I.

_________________________________________________________________

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.   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  the  Air  Force  and  adopt
their rationale as the basis for our conclusion that the applicant  has  not
been the
victim of an error or injustice.  In the absence of  evidence  showing  that
the commander abused his discretionary authority,  we  find  no  basis  upon
which to set aside the contested Article 15 or his rank  of  staff  sergeant
be  restored.   In  regard  to  his  request  to  change  his   reenlistment
eligibility code to one that allows him to be  eligible  for  the  Voluntary
Separations Incentive (VSI) and Special  Separation  Benefit  (SSB)  Program
entitlements, the Board  notes  that  the  applicant’s  approved  separation
under VSI was withdrawn due to  a  RE  code  of  2J-Under  investigation  by
military  or  civilian  authority,  the  outcome  of  which  may  result  in
discharge or court-martial action.  In accordance with  the  policy  of  the
FY95 VSI Program a member with an RE code of 2J was  not  eligible  for  the
program.  Regarding the applicant’s request  that  he  be  awarded  the  Air
Force Commendation Medal (1st Oak Leaf Cluster) (AFCM,  1OLC)  and  the  Air
Force Good Conduct Medal (3rd Oak Leaf Cluster) (AFGCM,  3OLC),  it  appears
that the appropriate Air Force officials determined that the  applicant  did
not deserve these awards.  In regard to the applicant’s allegation that  the
special court-martial was dismissed, a review of  his  records  contains  no
documentation  to  support   his   allegation.    If   the   applicant   has
documentation pertaining to the dismissal of the special  court-martial,  he
should  provide  it  to  the  Board  and  request  reconsideration  of   his
application.  In view of the foregoing, we  find  no  basis  upon  which  to
recommend favorable action on 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 issue(s) 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 probable material 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 this application.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 26 January 1999 under the provisions of AFI 36-2603:

              Ms. Rita S. Looney, Panel Chair
              Mr. Terry A. Yonkers, Member
          Ms. Patricia D. Vestal, Member
              Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 22 January 1998, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 3 March 1998.
      Exhibit D. Applicant’s Response, dated 3 April 1998.
      Exhibit E. Letter, AFPC/DPPRR, dated 22 July 1998, w/atchs.
      Exhibit F. Letter, AFLSA/JAJM, dated 5 October 1998.
      Exhibit G. Letter, AFPC/DPPPRA, dated 30 October 1998,
                       w/atchs.
      Exhibit H. Letters, AFBCMR, dated 13 March 1998 and
                       16 November 1998.
      Exhibit I. Applicant’s Response, dated 11 December 1998.





                             RITA S. LOONEY
                             Panel Chair