RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03271
            INDEX CODE:  110.03, 111.01, 126

            COUNSEL:  None

            HEARING DESIRED:  No


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Article 15 he received on 14 Jan 98 be set aside.

2.    Reinstatement to the grade of technical sergeant with back pay.

3.    An opportunity to test for master sergeant.

4.    His Enlisted Performance Report (EPR) rendered  for  the  period
2 Jun 97 through 11 Mar 98 be  declared  void  and  removed  from  his
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Area Defense Counsel (ADC) was not present when he was served with
the Article 15.  He was not afforded the right to  view  the  evidence
his commander used in deciding whether or not  to  impose  nonjudicial
punishment and some of the evidence was obtained as  a  result  of  an
improper search and seizure that took place at his residence.  He also
contends the Privacy Act  was  violated  when  information  about  his
marital status was disclosed to third  parties  and  when  a  Security
Forces investigator searched government computer records to  determine
who the applicant signed on base and when he did so.

Applicant’s complete submission is attached at Exhibit A.

On 19 Jan 99, the  applicant  provided  additional  documentation  for
inclusion in his case (see Exhibit A1).

_________________________________________________________________




STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
25 Oct 79.  He is currently serving in the Regular Air  Force  in  the
grade of staff sergeant.

Applicant’s EPR profile since 1987 follows:

            PERIOD ENDING          OVERALL EVALUATION

             26 Dec 87                     9
             26 Dec 88                     9
             20 Aug 89                     9
             31 Jul 90                     5 (New rating system)
             12 Aug 91                     5
             12 Aug 92                     5
             28 Mar 94                     5
             20 May 93                     5
             28 Mar 94                     5
             31 Jan 95                     4
              1 Dec 95                     5
             29 Sep 96                     5
              1 Jun 97                     3
           * 11 Mar 98                     2 (Referral Report)
             30 Sep 98                     5

     *  Contested report.

On 14 Jan 98, applicant was notified  of  his  commander’s  intent  to
impose nonjudicial punishment upon him pursuant to Article 15, Uniform
Code of Military Justice (UCMJ) for two counts of dereliction of  duty
(unofficial use of official seals) and bigamy.

On 20 Jan 98, after consulting  with  counsel,  applicant  waived  his
right to  a  trial  by  court-martial,  did  not  request  a  personal
appearance and submitted a written presentation.

On 22 Jan 98, he was found guilty by his  commander  who  imposed  the
following punishment:  Reduction from the grade of technical  sergeant
to the grade of staff sergeant, with a  new  date  of  rank  (DOR)  of
22 Jan 98, 15 days’ extra duty and a reprimand  for  the  offenses  of
dereliction of duty and bigamy.

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

Applicant has a high year tenure  (HYT)  date  of  Nov  99  (technical
sergeants may serve 20 years) and a projected retirement date of 1 Dec
99 based on length of service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, AFLSA/JAJM, reviewed this
application and indicated that while the  applicant  is  afforded  the
right to consult a  lawyer  before  making  any  decisions,  there  is
nothing that requires the ADC to be present when service occurs.   The
applicant’s Article 15 form clearly indicates that he  consulted  with
an  attorney  before  deciding  to   accept   nonjudicial   punishment
proceedings rather than demand trial by court-martial.

In regard to applicant’s allegations  that  his  commander  failed  to
provide him with copies of evidence  available  to  the  commander  in
violation of AFI 51-202, paragraph 3.4, this claim is unsubstantiated.
 Prior to service of the Article 15, the base  legal  office  informed
the applicant’s first  sergeant  that  a  copy  of  the  evidence  was
provided to the ADC.  The first sergeant verified this with the  ADC’s
office prior to service of the Article 15 on 14 Jan 98.  Additionally,
a 28 May 98 memorandum by 24 MXS/CCF relates that the applicant’s  ADC
had been provided copies of the evidence relied upon by the commander.
 Both the ADC and the applicant had ample time to review the  evidence
prior to  the  applicant’s  deciding  whether  to  accept  nonjudicial
punishment proceedings.  The ADC did not request an extension of  time
to either examine the evidence or to  advise  the  applicant  further.
Additionally, there is no evidence in the file that the ADC raised the
issue that he did not possess the  relevant  evidence  from  which  he
provided the applicant advice.

The applicant also challenged the  legality  of  the  quarters  search
relating to his Article 15 punishment.  He  alleges  that  the  search
warrant used to search his quarters was  invalid/illegal  because  the
quarters number listed on the search warrant read, “1539-A” instead of
“1539-F.”  AFI 31-201, paragraph  8.2,  states:   “Probable  cause  or
reasonable grounds for a search  are  that  would  lead  a  reasonable
person to believe a specific offense has  occurred,  that  a  specific
person committed the offense, and that the fruits  or  instruments  of
the offense are in  a  specific  place.”   Security  Forces  personnel
searched the applicant’s quarters on 4 Dec  97  only  after  obtaining
verbal and written authorization from the military magistrate.   While
the written authorization referred to the incorrect  quarters  number,
there was never any question which quarters  the  military  magistrate
authorized  Security  Forces  personnel  to  search.    The   military
magistrate  clearly  communicated  the  authorization  to  search  the
applicant’s  quarters.   The  verbal  authorization  referred  to  the
applicant’s quarters by name and not just the quarters number.

The applicant also alleges that he  was  not  permitted  to  read  the
search authorization.  The applicant had no right,  Constitutional  or
otherwise, to be present when the search was conducted nor did he have
a right to specify who could be present or direct how the  search  was
to be conducted.  Provided the search authorization was valid -  which
it  was -  the  applicant  had  no  right  to   examine   the   search
authorization prior to execution of the search.   Because  the  search
authorization was valid and properly executed, the applicant’s further
argument that the evidence is inadmissible  pursuant  to  AFI  31-201,
paragraph 8.1, is moot.

Regarding applicant’s claims that the Privacy Act  was  violated  when
information  about  his   marital   status   was   disclosed   to   an
investigator’s wife, a first sergeant, and to Security Forces, AFI 37-
132, Air Force Privacy Act Program, paragraph 9.2, states that consent
is not needed when information is released “for use within  Department
of Defense (DOD) by officials or employees with a need to know.”   The
applicant also asserts that Security Forces violated the  Privacy  Act
when they searched computer records to  determine  who  the  applicant
signed on base and when he did so.  Under the circumstances described,
the search of government computer records by military law  enforcement
personnel acting in their official  capacity,  does  not  violate  the
Privacy  Act.   Further,  there  is  no  credible  evidence  that  the
information was released to third parties without a need to know.

In summary, the  applicant’s  file  indicates  that  he  received  all
procedural and substantive rights due him.  Additionally, the evidence
was sufficient to support the imposition  of  Article  15  punishment.
The Security Forces Report of Investigation  provided  ample  evidence
that the applicant was in fact legally married to  two  women  at  the
same time and thus had committed the offense of bigamy.  The applicant
was  also  properly  held  accountable  for  two   specifications   of
dereliction of duty.  Consequently, no  clear  injustice  exists  that
would necessitate setting aside the Article 15.  JAJM  recommends  the
application be denied.

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

The  Chief,  Inquiries/BCMR  Section,   AFPC/DPPPWB,   reviewed   this
application and indicated that if the Article 15 is set aside and  the
applicant’s grade is restored to technical sergeant with his  original
DOR of 1 Jan 95, he would be entitled to supplemental consideration to
the grade of master sergeant beginning with the 98E7 cycle.   However,
to  be  eligible  for  promotion  consideration,  a  member  must   be
recommended by the commander and not be  ineligible  for  any  of  the
conditions outlined in AFI 36-2502 (Airman Promotion  Program),  Table
1.1.  Unless the applicant’s request is approved in sufficient time to
provide him the required study time  and  administer  the  appropriate
promotion test, he could not be supplementally  considered  to  master
sergeant prior to his retirement.  A favorable decision would need  to
be received by 10 Oct 99.

A complete copy of the  Air  Force  evaluation,  with  attachment,  is
attached at Exhibit D.

The Chief, Promotion, Evaluation &  Recognition  Division,  AFPC/DPPP,
also reviewed this application and indicated that Air Force policy  is
that an evaluation report is accurate as written  when  it  becomes  a
matter of record and to effectively challenge an EPR, it is  necessary
to hear from all the members of the rating chain—not only for  support
but to clarification/explanation.  The applicant has failed to provide
any information/support from the rating chain on  the  contested  EPR.
In the absence of information from evaluators, official substantiation
of error or injustice  from  the  Inspector  General  (IG)  or  Social
Actions  is  appropriate,  but  not  provided  in  this  case.    DPPP
recommends that the contested report be maintained as a  part  of  the
applicant’s record.

A complete copy of their evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluations.  On  24 Mar  and  10 May
99,  he  provided  a  two-page  response  and  a   10-page   response,
respectively (see Exhibit G).

_________________________________________________________________

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 a thorough review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded  that  he  should  be  given  the  requested  relief.    His
contentions  are  duly  noted;  however,  we   do   not   find   these
uncorroborated  assertions,  in  and   by   themselves,   sufficiently
persuasive to override the rationale provided by the  Air  Force.   We
therefore agree with the recommendations 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.

_________________________________________________________________

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 5 August 1999, under the provisions of Air  Force
Instruction 36-2603:

                  Ms. Rita S. Looney, Panel Chair
                  Ms. Marcia J. Bachman, Member
                  Ms. Barbara J. White-Olson, Member
                Mrs. Joyce Earley, Examiner (without vote)

The following documentary evidence was considered:

     Exhibit  A.  DD Form 149, dated 5 Nov 98, w/atchs.
     Exhibit A1.  Additional documentation fr applicant,
                    dated 19 Jan 99, w/atchs.
     Exhibit  B.  Applicant's Master Personnel Records.
     Exhibit  C.  Letter, AFLSA/JAJM, dated 3 Mar 99.
     Exhibit  D.  Letter, AFPC/DPPPWB, dated 15 Mar 99.
     Exhibit  E.  Letter, AFPC/DPPP, dated 30 Mar 99.
     Exhibit  F.  Letter, AFBCMR, dated 12 Apr 99.
     Exhibit  G.  Letters fr applicant, dated 24 Mar 99 and
                    10 May 99.




                                   RITA S. LOONEY
                                   Panel Chair