RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-01867
            INDEX NUMBER:  126.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

The vacation  of  the  suspended  nonjudicial  punishment,  under  the
provisions of Article 15, UCMJ, initiated on 21  April  1998,  be  set
aside.

___________________________________________________________________

APPLICANT CONTENDS THAT:

The contested action was illegal and premeditated.

In November 1997, he was involved in a vehicle accident and  sustained
major back injuries.  In December  1997,  he  was  issued  a  physical
waiver from his orthopedic surgeon that greatly restricted his duties.
 In March 1998, his superiors ordered him to perform an  inventory  on
an MK 144 Weapons System.  This inventory was clearly in violation  of
his physical waiver.  He sustained  further  injuries  and  his  rehab
program was delayed due to his following orders.  In addition  to  the
additional injuries that he  incurred,  he  was  also  punished  under
Article 15 for not completing the task properly.

Applicant’s complete statement and documentary evidence  submitted  in
support of his application are included as Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

On 16 December 1992, applicant enlisted in the Regular Air Force for a
period of six years.  Prior to the events under review he had attained
the rank of senior airman (E-4).  He is currently serving in the grade
of airman first class (E-3).

Applicant’s EPR profile follows:

     PERIOD CLOSING    OVERALL EVALUATION

       15 Aug 94 Removed by Order of SAF
       25 Jul 95 4
       17 Jan 96 4
        5 Dec 96 5
        5 Dec 97 3

On 12 December 1997,  the  squadron  commander  initiated  nonjudicial
punishment action against  the  applicant,  under  the  provisions  of
Article  15,  UCMJ,  for  making  and  falsely  signing  an   official
statement, to  wit:   AF  Form  899,  Request  and  Authorization  for
Permanent  Change  of  Station  -  Military.   On  12  December  1997,
applicant acknowledged his understanding of his rights and that he had
not consulted a lawyer.  At that time, he waived his right  to  court-
martial and accepted nonjudicial punishment under  Article  15,  UCMJ.
He did not request a personal appearance and did not submit a  written
presentation.  On 24 December 1997, the commander determined applicant
had committed the alleged offense and imposed punishment consisting of
a reduction to the grade of airman  first  class  and  forfeitures  of
$500; however, the reduction in grade and forfeitures  were  suspended
until 16 June 1998.  Applicant did not appeal this action.

On 21 April 1998, the squadron commander initiated  action  to  vacate
the suspended nonjudicial punishment.   The  basis  for  the  proposed
action was that on or about 5 March 1998, applicant  was  derelict  in
the performance of his duties in that he willfully failed to  look  in
the systems locker for a KY-65 and ZAKF serial  #16039.   On  21 April
1998, applicant acknowledged his understanding of his rights, that  he
had  consulted  a  lawyer,  that  he  requested  to  make  a  personal
appearance, and that he was  submitting  a  written  presentation  for
consideration.  On 18 May 1998, the commander determined that  he  had
committed one  or  more  of  the  alleged  offenses  and  vacated  the
suspended nonjudicial punishment.  On  5 June  1998,  the  Wing  Judge
Advocate found the record legally sufficient.  Applicant  was  reduced
to the grade of airman first class, with a new  date  of  rank  of  24
December 1997.

___________________________________________________________________

AIR FORCE EVALUATION:

The  Deputy  Chief,  Military  Justice  Division,  AFLSA/JAJM,   after
reviewing the available records, concluded that administrative  relief
by their office  is  not  appropriate.   There  are  no  legal  errors
requiring corrective action.  Their comments, in part, follow.

After a discussion  of  the  applicant’s  contentions  and  supporting
documentation, JAJM stated that the true focus of this appeal  is  the
validity of  the  vacation  of  nonjudicial  punishment  action.   The
applicant implies that SSgt H--- [applicant’s supervisor] set  him  up
by planting the missing equipment (KY-65/ZAKF, serial #10639)  in  his
locker.  SSgt H--- looked in the locker the day  after  the  applicant
claims he did the inventory.  SSgt  H---  noticed  the  KY-65/ZAKF  in
plain view.  In spite of the legal arguments made by  the  applicant’s
defense counsel, the applicant admits he  was  ordered  to  conduct  a
complete inventory.  Part of that inventory was to check  the  systems
locker.  When asked by SSgt H--- if he had checked his systems  locker
for the missing KY-65/ZAKF, he said he had and that it was not  there.
After searching unsuccessfully for the missing KY-65/ZAKF,  SSgt  H---
searched the applicant’s systems locker  and  discovered  the  alleged
missing equipment.  This  occurred  within  a  day.   One  can  easily
conclude that the applicant pencil-whipped his inventory  rather  than
conducting a thorough inspection.  By doing so, he was derelict in his
duties because he failed to check his systems locker.  Had he  checked
the locker, he would have easily discovered the KY-65/ZAKF.

The issue is one  of  credibility.   Who  is  to  be  believed  -  the
applicant or SSgt H---?  Considering the applicant was punished  under
Article 15 for signing and falsifying PCS orders in order to  get  out
of a court date, his credibility can be called into  question.   There
is nothing in the file which indicates SSgt  H---  has  a  credibility
problem.  Applicant’s defense counsel attempts to  bring  SSgt  H---‘s
credibility into question  by  indicating  the  five  statements  from
squadron personnel who state they were unaware that there was an order
to search for missing equipment.  They are correct.  There  wasn’t  an
order to search for  missing  equipment.   The  order  was  for  every
individual in A-Flight to conduct a complete visual inspection of  all
the comsec equipment assigned to them.  There is  sufficient  evidence
to support that the applicant failed to  complete  a  thorough  visual
inspection of all of the comsec equipment assigned to him.

The action taken against the applicant was  a  vacation  of  suspended
nonjudicial  punishment.   The  Manual  for  Courts-Martial,  Part  V,
paragraph  6(a)(5)  states,  “Vacation  of  a  suspended   nonjudicial
punishment  is  not  itself  nonjudicial  punishment,...”   Air  Force
Instruction 51-202, Nonjudicial Punishment, para 8.3, states that  all
that  is  required  to  vacate  suspended  nonjudicial  punishment  is
“further misconduct.”  The commander had the full and  complete  facts
before him at the time of the vacation proceedings.  He  was  able  to
personally observe all the participants of  the  vacation  proceedings
and determined the vacation action was warranted.

The complete evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

As to the statement in the advisory opinion that his supervisory chain
may not have been aware of  the  extent  of  his  medical  conditions,
applicant stated that his supervisory chain had full knowledge of  his
condition.

He further stated that the order for the inspection was a  common  one
and is performed various times throughout the year.  There is no  such
thing as a visual inspection at the squadron.  Most of their equipment
is considered sensitive and is kept secure  behind  three  locks.   If
such a visual inspection did exist, applicant questions why management
gave them inspection sheets to check off?

Applicant contends that the advisory made a statement  that  according
to the testimony given by the other NCOs in  the  flight,  “they  were
correct  in  that  there  wasn’t  an  order  to  search  for   missing
equipment.”   This  statement  was  taken  out  of   context.    Their
statements were clearly after the fact  and  prove  that  he  was  not
questioned about any missing equipment  nor  did  he  report  to  SSgt
Hunter.  It proves that the  problem  finding  the  missing  gear  was
hidden from everyone in the flight by SSgt Hunter who  is  the  COMSEC
custodian and had access to all such gear, locks, storage, etc., until
the “vacation action” was set in motion.

Applicant’s response is at Exhibit E.

___________________________________________________________________

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  noted  applicant's
complete submission in judging the merits of the  case.   However,  we
agree with the comments of the Military Justice Division  (AFLSA/JAJM)
and adopt their rationale as the basis for  our  conclusion  that  the
applicant has not been the victim  of  an  error  or  injustice.   The
commander had the discretionary  authority  to  vacate  the  suspended
nonjudicial punishment when he determined that further misconduct  had
occurred.  Applicant’s  contention  that  the  order  to  conduct  the
inventory was in violation of  his  physical  waiver  is  duly  noted.
However, the applicant had an opportunity to inform his superiors that
he could not do the inventory because  of  his  medical  profile,  yet
there is no evidence that he did so.  The applicant has  not  provided
any evidence to sufficiently convince the  Board  that  the  commander
abused  his  discretionary  authority  in   vacating   the   suspended
nonjudicial punishment, that the vacation action was contrary  to  the
governing regulation, or that the applicant was denied rights to which
entitled during the process.  Therefore, in the absence of 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 2 March 1999, under the  provisions  of  AFI  36-
2603:

      Mrs. Barbara A. Westgate, Panel Chair
      Mr. Michael V. Barbino, Member
      Mr. Roger E. Willmeth, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated undated, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 18 Sep 98, w/atch.
    Exhibit D.  Letter, SAF/MIBR, dated 19 Oct 98.
    Exhibit E.  Letter from Applicant, dated 18 Oct 98.




                                   BARBARA A. WESTGATE
                                   Panel Chair