RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03153
            INDEX CODE:  126

            COUNSEL:  JULIE K. HASDORFF

            HEARING DESIRED:  Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

An Article 15, dated 22 Aug 96, an Article 15, dated 6 Sep 96, and,  a
Vacation of Suspended Nonjudicial Punishment, dated 4 Nov 96,  be  set
aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

All three records were created by  the  same  commander  who  did  not
follow the advice and counsel of the legal office on these matters and
who  refused  to  consider  clear  and  convincing  evidence  on  both
nonjudicial  punishments  that  he  was  the  victim   and   not   the
perpetrator.  The vacation of the suspended punishment was based on an
incident which took place at the mental ward of the hospital  when  he
was in an extremely emotional and distraught state (he  had  attempted
suicide) and therefore should  not  be  held  against  him.   He  also
believes that the commander failed to consider  applicant’s  excellent
duty performance when he made these decisions regarding the Article 15
and the vacation of the suspended punishment.  The entire  episode  is
an aberration of an otherwise stellar record.

In support of his appeal, the applicant provides copies of the Article
15s and his vacation of nonjudicial punishment, a memorandum from  his
military  defense  counsel,  character  references,   an   Air   Force
Achievement  Medal  citation,  and  an  AF  Form  973   (Request   and
Authorization For Change of Administrative Orders) which indicates  he
changed his name on 15 Jan 98.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date  was  4 Jun
82.

Applicant’s  Airman  Performance  Report  (APR)/Enlisted   Performance
Report (EPR) profile since 1984 follows:

            PERIOD ENDING          OVERALL EVALUATION

             11 Jul 84                     7
              8 Nov 84                     8
             15 Sep 85                     8
              6 Jun 86                     8
              6 Jun 87                     9
              2 Jan 88                     9
              2 Jan 89                     9
              2 Jan 91                     5 (New rating system)
              2 Jan 92                     5
             10 May 92                     5
             10 May 93                     4
              2 Jan 94                     4
              2 May 95                     5
              2 May 96                     4
              2 May 97                     4

On 22 Aug 96, applicant was notified  of  his  commander’s  intent  to
impose nonjudicial punishment upon him  for  unlawfully  punching  his
wife in the left eye with his fist on 9 Aug 96.

On 4 Sep 96, after consulting with counsel, applicant waived his right
to a trial by  court-martial,  requested  a  personal  appearance  and
submitted a written presentation.

On 2 Oct 96, he was found guilty by  his  commander  who  imposed  the
following punishment:  reduction from the grade of staff  sergeant  to
the grade of senior airman which was suspended until 1 Apr 97.

Applicant did appeal the punishment; however, the appeal was denied on
17 Oct 96.  The Article 15 was filed in  his  Unfavorable  Information
File (UIF).

On 6 Sep 96, applicant was  notified  of  his  commander’s  intent  to
impose nonjudicial punishment upon him for violating the order, issued
on 15 Aug 96, of his commander not to have any contact with  his  wife
by wrongfully telephoning and talking to his wife on 22 Aug 96.

On 19 Oct 96, 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 Oct 96, he was found guilty by his  commander  who  imposed  the
following punishment:  forfeiture of $150 pay a month for  two  months
and a reprimand.

Applicant did appeal the punishment; however, the appeal was denied on
15 Nov 96.  The Article 15 was filed in his UIF.

On 4 Nov 96, applicant was served a Record of Proceedings of  Vacation
of Suspended  Nonjudicial  Punishment.   The  basis  for  this  action
occurred on 8 Oct 96.  On that date, the applicant was alleged to have
been drunk and disorderly.  He threw a wine bottle at a senior  airman
and he  showed  disrespect  toward  his  commander  and  his  superior
noncommissioned officer (NCO) by  using  swear  words  and  derogatory
language  in  reference  to  the  same.   The  applicant’s   suspended
nonjudicial punishment was vacated on 18 Nov 98 after allowing him the
opportunity to respond.  He  was  reduced  from  the  grade  of  staff
sergeant to the grade of senior airman with a new date of  rank  (DOR)
of 2 Oct 96.

On 20 Aug 97, the applicant requested release  from  active  duty  and
transferred to the Reserve, effective 16 Feb 98.

On 16 Feb 98, the applicant was released from active  duty  under  the
provisions of AFI 36-3208  (Reduction  in  Force)  with  an  honorable
characterization of service in the grade of  senior  airman.   He  was
credited with 15 years, 8 months, and 12 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, AFLSA/JAJM, reviewed this
application and indicated that there is  insufficient  information  to
conclude the applicant did not assault his wife.  The defense  counsel
claims that the legal office recommended to the commander to  withdraw
the nonjudicial punishment served on the  applicant  for  the  assault
against his wife.  There is no proof  that  this  is  what  the  legal
office actually recommended.  Since the advice provided to  commanders
is considered privileged, the defense counsel could not  be  privy  to
the actual recommendations given to the commander.  It also should  be
noted that military justice is a commander’s program.  Judge advocates
are advisors.  The commander is the ultimate decision-maker  regarding
misconduct which occurs in his/her squadron.  The  applicant  violated
his commander’s order to have no contact with his wife  prior  to  the
decision being made regarding the first Article 15.  The fact that the
applicant committed additional misconduct while the first  nonjudicial
punishment proceeding was pending against him did nothing  to  bolster
his defense.

JAJM states that since they do not have all the  documentation  before
them, they defer to the actions of the commander and  the  Article  15
appellate authority.  They had all of the evidence before  them  along
with firsthand knowledge of the applicant’s demeanor at  the  time  of
the offenses.  The applicant  does  not  deny  that  he  violated  his
commander’s  no  contact  order  nor  does  he  dispute  that  he  was
disrespectful to his commander and superior NCO.  The language used in
reference to these  individuals  was  clearly  vulgar  and  offensive.
There is no evidence within the package corroborating the  applicant’s
claim that the events which occurred on 8 Oct 96 was immediately after
he had attempted to commit suicide.

As mentioned by the defense counsel, the applicant had the opportunity
to turn the Article 15 and demand a trial by court-martial.  He  chose
to present the evidence to his commander.  His commander reviewed  all
of the evidence and decided the applicant was guilty of  the  offense.
The commander acted within his discretion in all three of the  actions
the applicant has requested to be removed from his records.   Although
the applicant should be commended for his good conduct while stationed
at MacDill AFB, it does not excuse his past misconduct.   The  actions
taken were appropriate.

JAJM further states that the Manual for Courts-Martial and AFI  51-202
allows for Article 15 nonjudicial punishment to be set aside on appeal
if under all the 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  members  record.
There is no evidence of an injustice in this  case  and  the  evidence
provided by  the  applicant  does  not  support  a  set  aside.   JAJM
recommends denial of applicant’s request.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the Air Force evaluation and indicated that while the
advisory opinion states that there is no evidence within  the  package
corroborating applicant’s claim that  the  events  which  occurred  on
8 Oct 96 was immediately after he had attempted to commit suicide, she
is enclosing documentation which document a  suicide  attempt  by  the
applicant on 8 Oct 96.  The applicant’s commander could not imagine  a
“battered husband” scenario and so wrongfully considered the applicant
the aggressor and not the victim.  Counsel stated that the applicant’s
wife was the aggressor in their marriage and by the  accounts  of  all
objective witnesses, the applicant was a “battered husband.”

Counsel’s  complete  response,  with  attachments,  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.  Applicant’s contentions
are duly noted; however, we do 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 offenses  and  imposed  nonjudicial  punishment.
Furthermore, we note that the Military Justice  Division  opines  that
there are no legal errors requiring corrective action.   We  therefore
agree with the recommendation of the Air Force and adopt the rationale
expressed as the basis for our decision that the applicant has  failed
to sustain his burden that he has  suffered  either  an  error  or  an
injustice.  Therefore,  we  find  no  compelling  basis  to  recommend
granting the relief sought.

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:

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 1 December 1999,  under  the  provisions  of  Air
Force Instruction 36-2603:

                  Mrs. Barbara A. Westgate, Panel Chair
                  Mr. William H. Anderson, Member
                  Mr. Philip Sheuerman, Member
                Mrs. Joyce Earley, Examiner (without vote)

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 2 Nov 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 counsel, dated 30 Apr 99,
                   w/atchs.




                                   BARBARA A. WESTGATE
                                   Panel Chair