RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01610
                 INDEX CODE 110.03 126.04
                 COUNSEL:  None

                 HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to active duty in the  grade  of  technical  sergeant
(TSgt) with back pay and benefits.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 was too severe for merely missing a suspense.  Further,
his area defense counsel (ADC) gave him the wrong  suspense  date  for
his appeal and therefore it was never  considered.   He  continued  to
work in  the  same  area  with  additional  responsibilities  and  his
performance reports reflect that he was an exceptional NCO who did not
deserve this reduction. He indicates that all supporting  material  is
at the ADC’s office at  Eglin  AFB.  He  asserts  this  file  contains
several letters,  including  one  from  Colonel  M---,  who  felt  the
punishment was too severe.

A copy of applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

During the period in question, applicant was a TSgt  assigned  to  the
3246th Test Wing, Eglin AFB, FL, as the NCOIC, Programs  and  Mobility
Branch. His date of rank (DOR) to TSgt was 1 February 1986.

On 10 September 1991, applicant was notified of the 3246th  Test  Wing
commander's intent to  impose  nonjudicial  punishment  upon  him  for
dereliction of duty on or about 22 July  1991  in  that  he  willfully
failed to provide information concerning a chemical spill to Colonel M-
-- by 0700 on 22 July 1991, as was his duty to do.

On 30 September 1991, after consulting with counsel, applicant  waived
his right to a trial by court-martial, requested a personal appearance
and submitted a written presentation.

On 1 October 1991, he was found guilty by a different 3246th Test Wing
commander (presumably a  successor)  who  imposed  the  punishment  of
reduction from TSgt to staff sergeant (SSgt) with a new date  of  rank
(DOR) of 1  October  1991.   Applicant  appealed  the  punishment  and
submitted written matters;  however,  the  appeal  was  denied  on  11
October 1991.  The  Article  15  was  not  filed  in  his  Unfavorable
Information File (UIF).

The overall ratings of the applicant's performance reports  from  1981
reflects the following: 9, 8, 9, 9, 9,  9,  9,  9,  9,  9,  9,  5 (New
System), 4, 5, 5.

On 10 January 1994, the Secretary of the Air Force, Personnel  Council
(SAF/PC), determined that the applicant served satisfactorily  in  the
higher grade of TSgt and directed his advancement to that grade on the
retired list upon completion of all required service (service  time  &
retired time must equal 30 years).

He retired for years of service established by law  (15-19  years)  in
the grade of SSgt on 1 March 1994 with 19 years, 4 months and 21 days.
 He will be advanced to the grade of  TSgt  on  the  retired  list  on
10 October 2004.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  reviewed
this appeal and states that the applicant has failed to  indicate  any
material error injustice regarding his Article 15  punishment.  It  is
the applicant’s duty to provide any and all documentation  in  support
of his request. As such, he  should  have  retrieved  any  appropriate
documentation he  felt  necessary  to  prove  sufficient  evidence  of
probable material error or injustice. He has not done  so.   The  case
should be denied based either on the statute of limitations or on  its
merits.

A copy of the complete evaluation is at Exhibit C.

The Chief Inquiries/AFBCMR Section,  HQ  AFPC/DPPPWB,  also  evaluated
this case and advises that, based on his DOR  to  SSgt  of  1  October
1991, he was  eligible  and  considered  for  promotion  to  TSgt  one
promotion cycle (CY94A6) prior to his retirement. His total score  was
305.31 and the score required for selection was 348.55.  If the  Board
should set aside the Article 15, it would not be possible  to  provide
the applicant supplemental promotion consideration to master  sergeant
(MSgt) for the 93A7 and 94A7 cycles because, as he was serving in  the
grade of SSgt, he did not take the required promotion tests.

A copy of the complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluations and explains  why  he  exceeded
the three-year statute and why he did not deserve the  reduction.   He
has been unable to contact  Colonel M--- and tried  unsuccessfully  to
obtain a copy of his appeal package. He believes it is unjust to  lose
a stripe for missing a suspense, and to lose all his retired pay as  a
TSgt until 2004.  He was an outstanding NCO.

He provides a letter from the indorser of one of his 15 November  1991
performance report. The former  indorser  explains  the  circumstances
surrounding the incident that led to the Article 15 and  believes  the
applicant should never have been reduced in rank.  Also provided is  a
letter from the Eglin ADC office, advising that  Article  15  packages
are normally not kept for longer than two years.

In a second rebuttal package, applicant provides a statement from  the
commander who signed his last EPR. The former commander  explains  the
circumstances surrounding the incident that led to the Article 15.  He
asserts that the punishment was out of line and supports restoring the
applicant’s stripe.

Copies of applicant’s complete responses,  with  attachments,  are  at
Exhibit F.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable  error  or  injustice  to  warrant  granting
partial relief. Applicant’s request for reinstatement to  active  duty
as a TSgt was considered; however,  we  were  not  inclined  to  grant
relief in this form.  On the face of it, the reduction in grade for  a
“missed suspense” would seem unduly harsh.  At  this  point  in  time,
however, complete information on this incident appears to be no longer
available. We observed that the notification and the imposition of the
Article 15 punishment were served by two different  3246th  Test  Wing
commanders, the appeal was  reviewed  by  a  major  general,  and  the
Article 15 was found legally sufficient by two
judge advocates.  The specific wording of the  misconduct  was  not  a
“missed suspense,” but dereliction of duties in willfully failing  “to
provide information  concerning  a  chemical  spill.”  Given  all  the
individuals involved in  the  serving  of  this  somewhat  significant
nonjudicial punishment, we cannot help but suspect there was  more  to
this incident than merely a missed suspense. The applicant claims  the
officer to whom he was to report had provided a  statement  indicating
he also felt the reduction  was  too  severe.   Despite  this  alleged
support, senior officials apparently still  believed  the  applicant’s
misconduct was serious enough to warrant the reduction. Unfortunately,
the available evidence no longer provides sufficient detail for us  to
make a completely informed decision. It is perfectly conceivable  that
certain officially established factors, now unknown,  fully  justified
the punishment and its ramifications. Therefore, we are  reluctant  to
set aside the Article 15 and reinstate the applicant to active duty as
he requests. However, in view of the supporting statements from two of
his former evaluators (both retired), we would be willing to  consider
a compromise in this case. Since the possibility exists that there may
have  been  some  mitigating  circumstances,  we  recommend  that  the
nonjudicial punishment be changed to a  suspended  reduction  for  the
customary six months and the applicant be allowed  to  retire  in  the
grade of TSgt.  Therefore, we recommend his records  be  corrected  to
the extent 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 portion of the nonjudicial  punishment  imposed  on  him
pursuant to Article 15, Uniform Code of Military Justice, on 1 October
1991, relating to the reduction in grade from  technical  sergeant  to
staff sergeant, be amended to  reflect  the  reduction  was  suspended
until 1 April 1992.

      b.  On 1 March 1994,  he  was  retired  for  length  of  service
established by law (15-19 years) in the grade of  technical  sergeant,
rather than staff sergeant.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 23 February 1999, under the provisions of AFI 36-
2603:

                  Mr. Benedict A. Kausal IV, Panel Chair
                  Dr. Gerald B. Kauvar, Member
                  Ms. Melinda J. Loftin, Member

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

   Exhibit A.  DD Form 149, dated 3 Jun 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 14 Jul 98.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 12 Aug 98
   Exhibit E.  Letter, AFBCMR, dated 31 Aug 98.
   Exhibit F.  Letter, Applicant, dated 21 Sep 98, w/atchs.




                                   BENEDICT A. KAUSAL IV
                                   Panel Chair




AFBCMR 98-01610




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:

            a.  The portion of the nonjudicial punishment imposed on
him pursuant to Article 15, Uniform Code of Military Justice, on
1 October 1991, relating to the reduction in grade from technical
sergeant to staff sergeant, be, and hereby is, amended to reflect the
reduction was suspended until 1 April 1992.

            b.  On 1 March 1994, he was retired for length of service
established by law (15-19 years) in the grade of technical sergeant,
rather than staff sergeant.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency