RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02758
                             INDEX CODE:  126.00

                             COUNSEL:  NONE

                             HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15, Uniform Code  of  Military
Justice (UCMJ), dated 3 February 1997, be set aside  and  removed  from  his
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The photograph used to convict him was of his ex-wife’s  left  arm,  he  was
charged with striking her right arm.

He was not given a fair opportunity by  his  commander  or  Logistics  Group
commander.

The evidence used against him was blatenly unjust.

The alleged assault on his wife on the afternoon  of  8  December  1996  has
been a sore subject with him for a long time now.  He had accepted that  the
way the military deals with a situation like that is to find  a  subject  to
blame and make everything match the blame.  Case closed problem solved.

The problem with his case which has eaten his guts since he was  issued  the
Article 15 is that the evidence used in the  case  was  totally  irrefutable
towards his innocence.  Yet he is labeled as this spouse  abuser.   He  does
admit his ex-wife and he had other incidents, to which he gave a  statement,
she gave a statement, he was forced to counseling, she wasn’t.   Whether  or
not the guilt falls on either party is not relevant to this case.

He was charged with striking his ex-wife on the right  arm  with  his  hand,
yet the only thing that supports this charge is the  statement  his  ex-wife
wrote that day stating he hit her on the right arm with  his  hand.   Photos
were taken at the scene of her left arm, and her right  shin,  also  of  the
right side of his face.

The legal review from the base legal  office  states  that  the  commander’s
decisions are supported by sound evidence.  Yet in  the  background  of  the
Legal Review, it states that the mutual affray resulted in  bruises  to  his
ex-wife’s right arm, right shin and left foot, as well as applicant’s  right
cheek.  At the time he had not wanted  to  drag  this  out  because  he  was
working on  his marriage.  He has since realized that marriage  to  his  ex-
wife was very detrimental to his career and his well being.   He  has  since
divorced her.  There is no sound evidence that he was given or have seen  to
support the commander’s action.

His record has had this on it for almost two years  now,  he  has  exhausted
all avenues on this base, he has been told by his Logistics Group  Commander
to leave it alone and accept it.  He  states  that  if  he  accepts  it,  he
allows the Military Justice system to punish an innocent member based  on  a
Commanders discretion.  He states, the seriousness of this  Article  15  has
already caused his private life grief.

In support of the appeal, applicant submits a copy of his and his  ex-wife’s
statements, a copy of the Article 15, a copy of the photographs, a  copy  of
the medical  opinion  on  the  photographs,  a  copy  of  the  Area  Defense
Counsel’s statement, and a copy of the Legal Review.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving in the Regular Air  Force  in  the  grade  of
staff sergeant.

On 24 January 1997, applicant was notified  of  his  commander's  intent  to
impose nonjudicial punishment upon him for having struck  his  wife  on  the
right arm with his hand, in violation of Article 128, UCMJ (Assault).

On 30 January 1997, after consulting  with  counsel,  applicant  waived  his
right to a trial by  court-martial,  requested  a  personal  appearance  and
submitted a written presentation.

On 3 February  1997,  his  commander  imposed  punishment  consisting  of  a
forfeiture of $325 pay, and a suspended reduction in grade to Senior  Airman
conditioned upon his attending Anger Management Class.

Applicant appealed the punishment; however, the appeal was denied.

Applicant’s Enlisted Performance  Reports  (EPRs)  from  1991  through  1998
reflect 5 ratings.

_________________________________________________________________


AIR FORCE EVALUATION:

The  Deputy  Chief,  Military  Justice  Division,  AFLSA/JAJM  reviewed  the
application and states that with regard to the issue  of  whether  the  wife
was injured on the right arm or the left arm, the evidence was  adequate  to
support a finding that the wife had suffered an assault.   They  state  that
AFI 51-202, paragraph 4.3, provides that the action remains  valid  even  if
the specification does not include all  of  the  elements  of  the  offense,
providing  the  offender  is  reasonably  informed  of  the  nature  of  the
misconduct.  In this case, they state that it is clear from the  applicant’s
written  presentation  to  his  commander  that  the  applicant  had   ample
opportunity to review the nature of his wife’s allegations beforehand.   The
legal review conducted by the base legal office  cited  a  long  history  of
spousal abuse often requiring medical attention, which information was  also
made available to the commander prior to making his decision.  According  to
the commander’s memo to the applicant  dated  7  July  1997,  regarding  the
applicant’s request to set aside the nonjudicial punishment, it appears  he,
the commander, was cognizant of the discrepancy presented by the  photograph
prior to his decision, but determined that it was not  the  deciding  factor
in his finding.  Therefore, based on the  evidence  available  to  him,  the
commander was faced with a classic “he said, she said”  confrontation.   The
wife’s statement provided sufficient information to warrant a  finding  that
the applicant had committed the offense  alleged.   They  state  AFI  51-202
requires  that  commanders  act  on  the  basis  of  information  they  deem
reliable, and the action be temperate, well-conceived,  just  and  conducive
to good order and discipline.  They further state  that  by  constructing  a
punishment designed to reduce domestic tensions, i.e.,  counseling  for  the
applicant, it is clear that the commander was using the means  available  at
had to accomplish the above goals.  They also state that after a  review  of
the available records, they conclude there are  no  legal  errors  requiring
corrective  action  regarding  the   nonjudicial   punishment   action   and
administrative relief by this  office  is  not  possible.   Therefore,  they
recommend denial of applicant’s request.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states  that  his  point
in his  case  is  that  there  is  no  evidence  to  support  his  ex-wife’s
allegations.  To add to that point, he states that he is the one who  called
the security police on her for assaulting him.  His entire case is based  on
true facts; his ex-wife’s story has too many holes in it, and he cannot  see
how everyone is so blind to this fact.  The fact  is  the  woman  is  always
assumed to beaten, not the beatee.  He states that he put up with  12  years
of that from his ex-wife, and after he filed  for  divorce  she  tried  some
other stuff, which the military,  even  after  he  reported  the  incidents,
nothing was done about it, so he finally  decided  to  divorce.   He  states
whether the Board drops his Article 15 or not, is not his decision, but  the
fact is women are not always the abused people.  Personally he has lost  all
faith in the military system, and he is finishing his 20 years  and  getting
out.  But before he does, he will do everything that can  possibly  be  done
to get that Article 15 dropped, not because it cost him  money  and  testing
opportunity, but because it is wrong, based purely on  the  opinion  of  one
commander that no one person wants to  go  against.   He  was  told  by  his
Logistics Group commander during all that time,  that  Family  Advocacy  had
something that proved his guilt; he was never given the opportunity to  view
that evidence.  He states that everything he has been given  has  been  sent
in to work his case.

Applicant's complete response is attached 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.  After reviewing the  evidence  of
record, we are not persuaded that the  applicant’s  records  are  either  in
error or  that  he  has  been  the  victim  of  an  injustice.   Applicant’s
contentions,  in  our  opinion,  have  been  adequately  addressed  by   the
appropriate Air Force office.  In the absence of evidence to  the  contrary,
we are in agreement with the opinions and recommendations of the  Air  Force
and adopt their rationale as the basis for our conclusion.  In view  of  the
above determination, we find no basis  upon  which  to  recommend  favorable
action on 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 17 June 1999, under the provisions of AFI 36-2603:

                 Mr. Terry A. Yonkers, Panel Chair
                 Mrs. Margaret A. Zook, Member
                 Ms. Leta L. O’Connor, Member
                 Ms. Phyllis L. Spence, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 28 Sep 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 7 Jan 99.
      Exhibit D. Letter, AFBCMR, dated 1 Feb 99.
      Exhibit E. Applicant’s Response, dated 25 Feb 99.




                             TERRY A. YONKERS
                             Panel Chair