RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-03008
                             INDEX CODE: 133.03

                             COUNSEL:  None

                             HEARING DESIRED:  No



_________________________________________________________________

APPLICANT REQUESTS THAT:

His rank of master sergeant (E-7) be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was reduced to the  grade  of  technical  sergeant  (E-6)  for  allegedly
communicating a threat  to  a  German  national.   His  performance  records
reflect no significant or substandard behavior that  sufficiently  justifies
severity  of  punishment.   The  imposing  commander  cited  behavior   from
domestic quarrel with ex-spouse five years earlier as grounds for demotion.

In support of the appeal, applicant submits a personal statement,  character
references,  Airman  Performance  Reports,   Senior   Enlisted   Performance
Reports, Article 15, and Report of Investigation.

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
technical sergeant.

On 14 April 1998, applicant  was  notified  of  his  commander's  intent  to
impose nonjudicial punishment upon him for wrongfully communicating  to  Ms.
A--- T--- a threat to wit: “I’m going to get you”  and  “I’m  going  to  set
your ass straight before I leave this motherfucker, okay?”  on  or  about  5
March 1998.

On 21 April 1998, after consulting with counsel, applicant waived his  right
to a trial by court-martial, requested a personal appearance  and  submitted
a written presentation.

On 30 April 1998, he was found guilty  by  his  commander  who  imposed  the
following punishment: reduction to the grade  of  technical  sergeant  (E-6)
with a new date of rank of 30 April 1998.

Applicant did not appeal the punishment.  The Article 15 was  filed  in  his
Unfavorable Information File (UIF).

EPR profile since 1993 reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

            17 May 93             5
            17 May 94             5
            17 May 95             5
            30 Apr 96             5
            30 Apr 97             5
            31 Mar 98             5

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Chief,  Military  Justice  Division,  Air  Force  Legal  Services
Agency, AFLSA/JAJM, reviewed this application and states that the  applicant
does not dispute  that  he  committed  the  offense  in  question.   He  was
properly notified of the change of commanders during nonjudicial  punishment
proceedings and he chose to have Lt Col L--- decide his case. The  commander
(Lt Col L---),  after  reviewing  the  evidence,  exercised  the  discretion
entrusted to him by the UCMJ and determined the applicant was guilty of  the
charged offense.  The commander also imposed a punishment  he  believed  was
appropriate for the offenses committed.  The reduction in  rank  was  within
the maximum punishment authorized for the offenses.  There  is  no  evidence
of any improper action by the applicant’s commander.  The Manual for Courts-
Martial and AFI 51-202 allows for Article 15 nonjudicial  punishment  to  be
set aside on appeal if under all circumstances, the punishment  resulted  in
a clear injustice.  A set aside is appropriate in  the  unusual  case  where
there is a question concerning the guilt of the offender, or where it is  in
the best interests of the Air Force to clear the member’s record.  There  is
no evidence of an injustice in this case and the evidence  provided  by  the
applicant does not support a set aside.  After a  review  of  the  available
records, they conclude there are no legal errors requiring
corrective action regarding the nonjudicial  punishment  and  administrative
relief by this office is not warranted.   Therefore,  they  recommends  that
the applicant's request be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 February 1997, a copy of the Air Force  evaluation  was  forwarded  to
the applicant for review and response within 30 days.  As of this  date,  no
response has been received by this office.

_________________________________________________________________

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.  Applicant’s contentions are  duly
noted; however, we find  no  evidence  of  error  in  this  case  and  after
thoroughly reviewing the documentation that has been  submitted  in  support
of applicant’s appeal, we do not believe he has suffered from an  injustice.
  In  the  absence  of  evidence  showing  that  the  commander  abused  his
discretionary authority, we find no  basis  upon  which  to  set  aside  the
contested  Article  15  or  his  rank  of  master  sergeant   be   restored.
Applicant’s contention, in our opinion, has  been  adequately  addressed  by
the Deputy Chief, Military Justice Division, and we  adopt  their  rationale
as the basis for our conclusion that the applicant has not been  the  victim
of an error or injustice.  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 15 July 1999, under the provisions of AFI 36-2603:

      Mrs. Barbara A. Westgate, Panel Chair
      Mr. Mike Novel, Member
      Mr. Ann L. Heidig, Member
      Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 15 Oct 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 21 Jan 99.
      Exhibit D. Letter, AFBCMR, dated 15 Feb 99.




                             BARBARA A. WESTGATE
                             Panel Chair