RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-01619 (Case 2)
            INDEX CODE:  111.02, 126.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article  15,  Uniform  Code  of  Military  Justice  (UCMJ),  dated
3 November 1995, be removed from his records.

His  Enlisted  Performance  Report  (EPR),  rendered  for  the  period
9 August 1995 through 2 November 1995, be declared  void  and  removed
from his records.   In  its  place,  he  requests  the  EPR  provided,
rendered for the period 23 September 1994  through  23 July  1995,  be
inserted in his records; and, that any other EPRs from that period  be
removed.

It appears that  the  applicant  is  also  requesting  that  his  EPR,
rendered for the period 23 September 1994 through 8  August  1995,  be
removed from his records.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The  information  gathered  by  the  Air  Force  Office   of   Special
Investigations (AFOSI) and used in  the  referral  EPR  was  illegally
obtained according to USC 3401-3408.

He was not directed to attend Personal  Financial  Management  Program
(PFMP) counseling, but rather that he volunteered to attend  the  PFMP
orientation in order to have his check-cashing privileges  reinstated.
Any statements he made concerning his attendance in the  program  were
accurate and truthful.  The evidence considered by  his  commander  in
imposing the Article 15 punishment was obtained by OSI in violation of
federal statutory protection on financial privacy.  The base financial
management counselor improperly released copies of his bank statements
to both the OSI and  his  commander,  thereby  violating  his  privacy
rights.

In support of his request, the applicant submits a personal  statement
and additional documents associated  with  the  issues  cited  in  his
contentions.  These documents are appended at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular  Air  Force
on 24 March 1982.  He has been progressively promoted to the grade  of
master sergeant (E-7), with the effective date and date of rank  of  1
July 1993.  The following is a resume of his EPR ratings subsequent to
his promotion to that grade.

            Period Ending    Evaluation

               4 Mar 94      5 - Immediate Promotion
              22 Sep 94      5
               8 Aug 95      5
             * 2 Nov 95      3 - Consider for Promotion
               2 Nov 96      5
              15 Nov 97      5
              26 Jun 98      5
               1 Nov 98      5

* Contested referral report

On 23 October 1995, applicant was notified of his  commander's  intent
to impose nonjudicial  punishment  (Article  15)  for  committing  the
following offenses: making a false official statement to his  squadron
commander  regarding  the  amount  of  funds  in  his  bank   account;
presenting false official documents (falsified bank statements)  to  a
base financial management  counselor;  and  making  a  false  official
statement to  an  officer  in  his  chain  of  command  regarding  his
completion of the personal financial management training, in violation
of Article 107, UCMJ.  Applicant elected nonjudicial punishment  under
Article 15.  The  commander,  on  31  October  1995,  determined  that
applicant  was  guilty  of  the  offenses  and  imposed  a  punishment
consisting of a written reprimand.  The commander determined that  the
record of the Article 15 would be filed in the applicant’s senior  NCO
selection record.  Applicant did not appeal the punishment.

The relevant facts pertaining to this application, extracted from  the
applicant’s military records, are contained in the letters prepared by
the appropriate offices of the Air Force.  Accordingly,  there  is  no
need to recite these facts in this Record of Proceedings.
_________________________________________________________________

AIR FORCE EVALUATIONS:

The  Air  Force  Legal  Services  Agency,  AFLSA/JAJM,  reviewed   the
application and concluded that there are  no  legal  errors  requiring
corrective  action  and  granting  the  applicant’s  request  is   not
warranted.  The applicant’s Article 15 and resulting referral EPR were
properly  executed  and  legally  sufficient.   JAJM  recommended  the
applicant’s request be denied.

JAJM stated that because of financial difficulties, including a number
of checks returned for insufficient funds, the applicant was  directed
by his commander  to  attend  Personal  Financial  Management  Program
(PFMP) counseling in August 1995.  Applicant attended  an  orientation
session for the PFMP counseling, but did not regularly attend or fully
complete the program.  During the counseling, the applicant  submitted
certain  bank  documents  that  were,  in  the  financial  counselor’s
opinion, of questionable authenticity.  Those  documents  were  turned
over to command authorities for further inspection and  investigation.
Based on evidence gathered during that investigation,  on  23  October
1995, the applicant was offered nonjudicial punishment  under  Article
15, UCMJ.  The applicant was  provided  military  defense  counsel  at
Incirlik Air Base, Turkey, but declined to consult with  counsel.   On
27 October 1995, the applicant elected to waive his right to a  court-
martial and accepted nonjudicial punishment proceedings.  He  did  not
make a personal appearance before his commander  and  did  not  submit
matters in writing for the commander’s consideration.  On  31  October
1995, the commander determined that the applicant  had  committed  the
offenses and imposed a punishment of a written reprimand.

JAJM stated that the applicant has failed to  establish  a  basis  for
relief.  The Article 15 documents are  complete  and  proper  and  are
entitled to a presumption of regularity.  With respect to whether  the
applicant volunteered or was required to attend the  PFMP  counseling,
the commander was obviously in the best position to know the facts and
circumstances  surrounding  the  applicant’s  participation   in   the
program.  Further, the applicant’s explanation - that he “volunteered”
to attend the counseling, and was allowed to attend only when saw  fit
- stretches the bounds of reasonableness.

The applicant’s assertion that the OSI wrongfully obtained records  in
violation of the Right to Financial Privacy Act (RFPA)  is  misplaced.
The  RFPA  applies  only  to  records  obtained   from   a   financial
institution.  If records are obtained directly  from  the  individual,
the RFPA does not apply.  In this case,  the  applicant  provided  the
records in question to the PFMP counselor, who in turn provided copies
to the OSI based on her suspicions that they had  been  altered.   The
bank statements provided by the applicant were presented by the OSI to
applicant’s credit union for review (with all identifying data blacked
out).  The OSI obtained no records from the applicant’s credit  union.
Similarly, the PFMP counselor did not violate the applicant’s “privacy
rights”  by  releasing  his  falsified  bank  statements  to   command
authorities.  Communications or information provided to the  financial
counselor is not “privileged” information.  As such, the counselor  is
under no obligation to conceal evidence of criminal activity.

A complete copy of this evaluation is appended at Exhibit C.


The Enlisted Promotion and Military Testing  Branch,  HQ  AFPC/DPPPWB,
indicated that the applicant’s commander determined that  in  addition
to the punishment of a reprimand, the Article 15  would  be  filed  in
applicant’s Senior NCO Selection Folder,  an  Unfavorable  Information
File (UIF) would be established and the applicant would be  placed  on
the control roster.  DPPPAB  stated  that  placement  on  the  control
roster rendered the  applicant  ineligible  for  the  96E8  cycle  for
promotion to senior master sergeant (E-8) (promotions effective  April
1996 - March 1997).  DPPPAB defers to AFLSA/JAJM’s recommendation that
no corrective action is required and the application should be denied.
 However, should the Board set aside  the  Article  15  and  void  the
control roster,  the  applicant  would  be  entitled  to  supplemental
consideration to E-8 beginning with the 96E8  cycle,  provided  he  is
otherwise eligible.

Concerning the referral EPR closing 2  November  1995,  DPPPAB  stated
that this report rendered him automatically ineligible  for  promotion
for cycle 96E8 to E-8 (promotions effective April 1997 - March  1998).
Should the Board void the report  in  its  entirety,  or  upgrade  the
overall rating, providing he is otherwise eligible, the applicant will
be entitled to supplemental promotion  consideration  commencing  with
Cycle 96E8 providing the control roster is voided.  DPPPAB noted  that
the applicant indicated that he does not want  supplemental  promotion
consideration if his request is approved (Exhibit D).


The BCMR and SSB Section, HQ AFPC/DPPPAB,  reviewed  this  application
and recommended denial.  DPPPAB stated that the applicant  provided  a
copy of a substitute EPR to file  in  his  records  in  place  of  the
referral  EPR.   However,  he  did  not  provide  anything  from   his
evaluators to explain how or why the EPR, now a matter of  record  for
three years, should be replaced.  In the absence of  information  from
evaluators, official substantiation of error  or  injustice  from  the
Inspector General ((IG) or Social  Actions  is  appropriate,  but  not
provided.  The applicant was the subject of  an  AFOSI  investigation.
Their investigation revealed he had made a false statement to  two  of
his superior officers and presented a fabricated bank statement to  an
official at Izmir, Turkey, with the intent to deceive.  The  applicant
did not provide any evidence to prove the contested  EPR  is  invalid.
DPPPAB believes the report was accomplished in direct accordance  with
applicable regulations and accurately reflects his performance  during
the contested reporting period.   DPPPAB  concurs  with  the  advisory
opinions by AFLSA/JAJM and HQ AFPC/DPPPWB and does not believe  either
the Article 15 or  the  contested  EPR  should  be  removed  from  his
records.  The burden of proof is on the applicant and he has failed to
substantiate that the contested report was not rendered in good  faith
by all of the evaluators.

The addendum to DPPPAB’s advisory opinion follows:

The Promotion, Evaluation  and  Recognition  Division,  HQ  AFPC/DPPP,
stated that if the Board recommends voiding the referral EPR closing 2
Nov 95, it  would  be  replaced  with  an  AF  Form  77  (Supplemental
Evaluation Sheet) not the 23 Jul 95 EPR the applicant  provided.   The
applicant believes the Board should insert an EPR for  the  period  23
Sep 94 - 23 Jul 95 in his records.  He  already  has  an  EPR  in  his
records for the period 23 Sep 94 - 8 Aug 95.  Therefore, in  order  to
insert the 23 Jul 95 EPR, the Board would need to void the  8  Aug  95
report in its entirety.  The applicant provided no support proving the
report is erroneous or the change of rater occurred in Jul instead  of
Aug.  In order  to  prove  the  CRO  (change  of  reporting  official)
occurred on 23 Jul 95, the applicant must provide memorandums from his
rating chain or official  computer-generated  documentation  from  his
former unit indicating the change of rater actually occurred on 23 Jul
95 instead of 8 Aug 95.

DPPP compared the EPR closing 23 Jul 95 with the one closing 8 Aug  95
and noted the verbiage on the two reports is  identical.   Also  noted
was the front-side of the 8 Aug 95 EPR has been marked down  in  three
areas and it is signed by a different  additional  rater.   Since  the
applicant did not include any evaluator support  to  substantiate  his
contentions, DPPP assumes the change of rater occurred  on  8  Aug  95
rather than 23 Jul 95.  They must also assume the rater downgraded the
front-side of the  EPR  when  he  discovered  the  applicant  had  not
attended the financial management training on 8 Aug 95 as instructed.

The applicant claims the commander’s secretary gave him a copy  of  an
EPR closing out 23 Jul 95 that never became a matter of record.   DPPP
noted that the copy of the report he provided was not finalized as  it
is lacking the reviewing commander’s signature.  DPPP  indicated  that
EPRs are work copies and evaluators may correct  or  redo  them  until
they become a  matter  of  record.   The  23  Jul  95  EPR  was  never
finalized; therefore, the applicant’s request to  inset  the  “working
copy” of the report into his record is unfounded.

Copies of the evaluations are appended at Exhibit E.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and indicated that he did
make a personal appearance before his commander.  On 29 October  1995,
he  was  advised  by  his  immediate  supervisor  to  report  to   the
commander’s office.  At this  time,  they  discussed  the  Article  15
action; specifically, the allegation that he did or did  not  complete
the PFMP program, and the alleged statement  he  made  regarding  this
completion.  On 31 October 1995, prior to accepting the Article 15, he
was told by his commander (Maj F---) that if he did not accept it,  he
would be involuntarily extended in Izmir for at least a year  awaiting
Court-Martial action.  As to his explanation that he  volunteered  for
PFMP  counseling,  if  he  was  directed  and  failed  to  attend  the
counseling, the commander would have added the charge of Article 92 to
his list of charges in his Article 15 action.  In his original  appeal
package,  he  attached  a  copy  of  a  letter  he  typed  and  signed
“Volunteering” to contact the PFMP counselor at the earliest  possible
date for counseling.  As to AFLSA/JAJM’s interpretation of  the  RFPA,
the law is very specific  “under  no  circumstances  will  information
provided be transferred to another  government  agency  or  department
without  the  expressed  permission  of  the  individual  or  a  court
subpoena”.  Additionally, JAJM’s interpretation of  “records”  is  not
consistent with the law.  As soon as the OSI discussed  his  “Personal
Bank Statements” with his credit  union,  they  broke  the  law.   The
contention from JAJM that OSI obtained no information or records  from
the credit union is false.  The letter he  included  in  his  original
appeal package from the Randolph Brooks Federal Credit Union  confirms
that OSI faxed the statements he provided to the PFMP counselor.  Once
it was determined that these  statements   were  not  originals,  they
released his name to  the  credit  union  and  advised  them  that  he
falsified their statements, subsequently resulting in them closing his
account.  When he volunteered to attend the PFMP counseling, he  never
expected his private financial statements to be shared  with  so  many
people.  He attended the counseling under the assumption that  it  was
confidential and designed to benefit him.

Applicant’s response to the addendum advisory opinion follows:

He does not disagree with the advisory writer that the request to have
the 8 Aug 95 report  replaced  with  the  23  Jul  95  report  is  not
warranted because it was not a matter of record  and  a  mere  working
copy.  However, DPPP’s contention that the 8 Aug 95 report was  marked
down based on his refusal to attend the Personal Financial  Management
Program (PFMP) and making a  false  statement  to  his  commander  are
totally unfounded.  He did attend the PFMP orientation course on 4 Aug
95.  The date that he was alleged to have made a false  statement  was
on 18 Aug 95, not 8 Aug 95, at least 10 days after the closeout period
of the contested  report  and  should  not  have  been  used  for  the
evaluation period.  If the contested report cannot be substituted with
the 8 Aug 95 report provided, the period should be covered  by  an  AF
Form 77.   As  to  providing  documentation  showing  a  rater  change
occurred on 23 Jul 95 versus 8 Aug 95 is unrealistic.  AFPC can verify
that no such product exists - rater changes are updated via PC III.

Applicant’s response is at 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.  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  opinions  and  recommendations  of  the
respective Air Force offices 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.
Therefore, absent sufficient evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.
_________________________________________________________________

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 3 August 1999, under the provisions  of  AFI  36-
2603:

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

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 3 Mar 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 15 Sep 98.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 7 Oct 98.
   Exhibit E.  Letters, HQ AFPC/DPPPAB, dated 14 Oct 98 and
                   5 Apr 99.
   Exhibit F.  Letters, SAF/MIBR, dated 26 Oct 98 and 14 Apr 99.
   Exhibit G.  Letter from applicant, dated 1 Dec 98, and
               electronic mail from applicant, dated 3 May 99.




                                   ROBERT W. ZOOK
                                   Panel Chair