RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-03109
            INDEX CODE:  126

            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Article 15 he received  for  American  Express  (AMEX)  card
misuse be redacted and downgraded to a Letter of Counseling (LOC).

2.    The Letter of Reprimand (LOR), dated 22 Jul 98, be modified with
all references to his relationship with his family, lack  of  remorse,
etc., and accusations of adultery be removed.

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APPLICANT CONTENDS THAT:

LOCs are the standard  punishment  for  first-time  AMEX  card  misuse
within the  organization.   Based  on  organizational  precedent,  his
punishment was overly harsh  and  unjust.   He  purchased  an  airline
ticket  for  approximately  $328  and  paid  the  bill  promptly  when
received.  The use of this card was a  mistake  and  not  intended  to
defraud the government.  He also summizes that the AMEX card violation
was closely tied to the adultery charge.  Once the adultery charge was
dropped, all that remained after  an  intensive  five-month  Inspector
General (IG) investigation was a rather benign AMEX card misuse charge
that could and should have been handled with an LOC.

In support of his appeal,  the  applicant  submitted  a  copy  of  the
Article 15, the LOR, appeal of  nonjudicial  punishment  and  LOR,  an
explanation of AMEX card abuse presented to the 11th Wing/CC, a letter
to the 11th Wing from the Area Defense Counsel, and  the  decision  to
file the record of Article 15 in the appropriate selection record.

Applicant’s complete submission is attached at Exhibit A.

On 7 Dec 98, the  applicant  provided  additional  documentation  with
inclusion of a letter from his former  squadron  commander  and  other
documentation relating to his appeal (see Exhibit A1).

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
18 Feb 86.  He is currently serving on extended  active  duty  in  the
grade of major, effective, and with a date of rank (DOR) of 1 Jan 98.

On 10 Jun 98, applicant was notified  of  his  commander’s  intent  to
impose nonjudicial punishment upon him for violating a lawful  general
regulation by wrongfully using his government AMEX card  for  personal
purposes.

On 17 Jun 98, after consulting  with  counsel,  applicant  waived  his
right to a trial by court-martial, requested a personal appearance and
submitted a written presentation.

On 22 Jul 98, he was found guilty by his  commander  who  imposed  the
following punishment:  Forfeiture of $1,000 pay.  Forfeiture  of  $800
pay was suspended until 21 Jan 99 after which  it  would  be  remitted
without further  action,  unless  sooner  vacated  and  a  LOR.   (The
commander dismissed the adultery charge, issuing instead a LOR  citing
the applicant for having engaged in unprofessional  relations  and  an
inappropriate affair with a subordinate female officer).

Applicant did appeal the punishment; however, the appeal was denied on
1 Oct 98.  The Article 15 was filed  in  his  Unfavorable  Information
File (UIF).

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AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, AFLSA/JAJM, reviewed this
application and indicated that the reprimand imposed as  part  of  the
nonjudicial punishment imposed  on  the  applicant  asserts  that  the
improper use of the AMEX card  consisted  of:   (1)  flying  a  female
lieutenant to Boston; and (2) purchasing a meal for two.  As indicated
in his appeal letter, the applicant invited the lieutenant  to  Boston
where he was going on temporary duty (TDY) to visit and talk with  her
about the breakup of his marriage and the difficulty he was having  in
being separated from his children.  It is apparent that the  applicant
used the card to purchase the lieutenant’s airfare  and  their  dinner
together.  An inconsistency exists in the applicant’s  statement  that
he never saw an AMEX statement although he also states  that  he  used
the card for TDY expenses in Korea and would pay the bills by the  end
of the month.  However, in his character reference letter submitted on
behalf of the applicant, Major D--- d--- asserts  that  the  applicant
lived with him and his family from the applicant’s separation from his
wife in Oct 97 (the time of the alleged card misuse)  up  to  Feb  98.
Major d--- stated that he knows for a fact that the applicant’s former
spouse paid  all  the  bills  and  that  the  applicant  never  saw  a
statement.  He bases this on the assistance he rendered the  applicant
in figuring out his bills and personal finances  during  that  period,
which was prior to the nonjudicial punishment charges being presented.

JAJM further states that based on the evidence available to  him,  the
applicant’s commander had sufficient information to warrant a  finding
that the applicant had committed the offense alleged pertaining to the
misuse of the AMEX card.  In fact, the applicant does not  rebut  that
he used the card  to  purchase  the  lieutenant’s  airfare  and  their
dinner.  AFI 51-202 requires that commander’s  act  on  the  basis  of
information they deem reliable and that the action be temperate, well-
conceived, just, and conducive to good order and discipline.   It  was
well within the commander’s sound exercise of  discretion  whether  to
believe the applicant’s assertion that he was unaware of the fact that
the card  was  for  official  use  only.   Based  on  the  information
available, the applicant’s nonjudicial punishment action  was  legally
sufficient and properly accomplished and the  applicant  was  afforded
all the rights granted by statute.  JAJM concludes that there  are  no
legal errors requiring corrective  action  regarding  the  nonjudicial
punishment and recommends the Board consider the matter on its  merits
in determining whether to grant the relief requested.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and  provided  a  two-page
statement (see Exhibit E).

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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,  a  majority  of  the  Board  does  not  find
compelling basis upon which to conclude that he has been the victim of
an error or injustice.  In this respect, we note  that  the  commander
determined that  the  applicant  committed  the  alleged  offense  and
imposed nonjudicial punishment.  After noting the seriousness  of  the
offense for which the Article 15 was issued (misuse of AMEX card), and
the reason for the issuance of the  LOR  (unprofessional  relationship
with a subordinate female officer), a majority of the Board  does  not
find that the Article 15 action or the LOR representing unsatisfactory
service as a major to be either in error or unjust.   Furthermore,  we
note that the Military Justice Division opines that there are no legal
errors requiring corrective action.   Therefore,  a  majority  of  the
Board finds no merit to the applicant’s contentions.  In view  of  the
above, and in the absence of substantive evidence to the  contrary,  a
majority of the Board concludes  that  the  applicant  has  failed  to
sustain his burden of establishing the existence of either an error or
an injustice warranting favorable action on his requests.

4.    The documentation provided with this case was sufficient to give
the Board a clear understanding of the issues involved and a  personal
appearance, with or without counsel, would not have  materially  added
to that understanding.  Therefore, the request for a  hearing  is  not
favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 4 November 1999,  under  the  provisions  of  Air
Force Instruction 36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Gregory H. Petkoff, Member
                  Ms. Melinda J. Loftin, Member

By a majority vote, the Board recommended denial of  the  application.
Mr. Petkoff voted to grant the relief sought  but  does  not  wish  to
submit a minority report.   The  following  documentary  evidence  was
considered:

The following documentary evidence was considered:

     Exhibit A.   DD Form 149, dated 4 Nov 98, w/atchs.
     Exhibit A1.  Second Attachment to DD Fm 149, dated 7 Dec
                    98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 5 Feb 99.
     Exhibit D.  Letter, AFBCMR, dated 1 Mar 99.
     Exhibit E.  Letter fr applicant, dated 11 Mar 99.




                                   RICHARD A. PETERSON
                                   Panel Chair