RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02860
                             INDEX CODE:  126.00
                             COUNSEL:  GARY R. MYERS

                             HEARING DESIRED:  YES


______________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15, he received on 6 April  1995,  be  expunged  from  his
records.

______________________________________________________________

APPLICANT CONTENDS THAT:

Counsel for applicant states that:

1.  The facts do not support a  finding  by  a  preponderance  of  the
evidence that an offense under the Uniform Code  of  Military  Justice
had been committed.

2.  The entire process was tainted by the bias and  command  influence
of a superior officer in applicant’s chain of command.

3.   Matters  in  defense  though  provided  to  the  general  officer
administering the Article 15, were never read nor  made  part  of  the
evidence by the general officer.

4.  The general officer who administered the Article 15 never intended
for it to be part of applicant’s official record and now asks that  it
be removed.

In support of his appeal, he submits statements  from  his  supervisor
and the wing commander.

Applicant's complete submission is attached at Exhibit A.

______________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Air  Force  Reserve  in  the
grade of Captain.

On 30 March 1995, applicant was offered a UCMJ Article 15  action  for
one specification of violating a lawful general  regulation  (piloting
aircraft in a reckless manner), and one specification  of  dereliction
of duty  (inappropriate  use  of  the  aircraft’s  afterburner).   The
applicant  accepted  the  Article  15  forum,  but  adamantly   denied
committing  the  offenses.   After  an  oral  presentation,  the  wing
commander determined that the applicant violated a general regulation,
but he did not commit dereliction of duty.  The punishment imposed was
a $500 forfeiture and a reprimand.  He did not appeal the punishment.

Applicant’s Officer Performance Reports (OPRs) from 1991 through  1997
reflect meets standards on all performance factors.

Applicant served on active duty until  his  separation  on          28
February 1998.

______________________________________________________________

AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, AFLSA/JAJM, reviewed  the
application and states that the discretion and judgments exercised  by
the commanders should not be  dismissed  lightly.   On  the  contrary,
absent a convincing showing that both commanders’ judgment was  wrong,
the action should stand unchanged.  They state, in their opinion,  the
applicant’s package does not  contain  convincing  evidence  that  the
Article 15 action was unjust.  They further state that the application
includes a memorandum from the wing commander in which he states  that
the Article 15 action  was  meant  to  be  a  desk  drawer  reprimand.
Article 15 actions are,  and  always  have  been,  official  personnel
actions.  They are not designed to be sub rosa  forms  of  discipline.
The fact that the commander chose  not  to  place  the  action  in  an
unfavorable information file or officer selection files does not  mean
that the action was unofficial in any way.  On the contrary, it should
be permanently maintained in the applicant’s records as a reliable and
accurate reflection of his military service record.

They further state that after a review of the available records,  they
conclude  that  administrative  relief  by   their   office   is   not
appropriate.  There are no legal errors requiring  corrective  action.
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:

Counsel for applicant reviewed the Air  Force  evaluation  and  states
that the Air  Force  Legal  Services  Agency  opinion  is  an  insipid
excursion into a general description of what an Article 15 is and what
it should be.  It  relies  upon  the  judgment  of  the  administering
officer.  He states that they do not so rely and in fact challenge his
judgment throughout their submission.

Counsel states that he supposes this advisory opinion helps the  Board
to understand this case in some fashion, but he just has  not  figured
out how.

Counsel'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.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or  injustice.   After  reviewing  the
evidence of record, we are persuaded that any reference  to  receiving
the Article 15 should be removed  from  the  applicant’s  record.   We
agree with the  Air  Force  that  the  action  taken  was  within  the
commander’s discretion; and we find  no  abuse  of  authority  in  the
issuance of the Article 15.  However, after reviewing the incident  in
question and noting the extraordinary support from his supervisor  and
wing commander, we believe that the Article 15 has served its intended
purpose and to permit it to irreparably harm the applicant’s  civilian
career would be unjust.  In view of  the  above  findings  and  in  an
effort to remove any possibility of an injustice,  we  recommend  that
the applicant’s records be corrected to the extend 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 any reference to  the
Record  of  Nonjudicial  Punishment  Proceedings,  under  Article  15,
Uniform Code of Military Justice (UCMJ), issued on 6  April  1995,  be
removed from his records.

______________________________________________________________

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


                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Laurence M. Groner, Member
                  Mr. Edward H. Parker, Member
                  Ms. Phyllis L. Spence, Examiner (without vote)

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

   Exhibit A.  DD Form 149, dated 8 Oct 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 22 Jan 99.
   Exhibit D.  AFBCMR Letter, dated 15 Feb 99.
   Exhibit E.  Counsel's Response, dated 16 Feb 99.




                                   RICHARD A. PETERSON
                                   Panel Chair




AFBCMR 98-02860
INDEX CODE:  126.00



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 APPLICANT be corrected to show that any reference to
the Record of Nonjudicial Punishment Proceedings, under Article 15,
Uniform Code of Military Justice (UCMJ), issued on 6 April 1995, be,
and hereby is, removed from his records.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency