RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03506
                 INDEX CODE:  126

                 COUNSEL:  NONE

                 HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

The Article 15, Uniform Code of Military Justice (UCMJ) imposed on  11
December 1997, be set aside and his grade of technical sergeant  (E-6)
be restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He has worked this issue carefully using his chain of command for  one
year and he has exhausted all channels that he has been made aware of.
 Despite all of the overwhelming evidence of injustice, no one in  his
chain of command has been willing to  overturn  the  decision  of  his
former commander.  He strongly  believes  that  given  the  additional
information, his commander’s decision would have been different.

While he failed to wear a motorcycle helmet while riding off base, the
punishment he received was not consistent with that for other  similar
offenses.  The applicant claims, regarding the  second  offense,  that
his official statement was not false in that he was on his way to  the
Grapevine, a 24-hour-a-day  drop-in  center  operated  by  members  of
Alcoholics Anonymous (AA) intended for AA members  to  participate  in
sober fellowship, when he was pulled over by police during  a  routine
traffic stop.

In support of his appeal,  applicant  submits  a  statement  from  the
Propulsion Flight Chief and a copy of  the  civilian  court  Order  of
Dismissal regarding liability insurance and driving without privileges
on 29 November 1997.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant reenlisted in the Regular Air Force on 4 January 1994 in the
grade of technical sergeant (E-6).

While serving in the grade of technical sergeant,  the  applicant  was
notified on 3 December 1997,  of  his  commander’s  intent  to  impose
nonjudicial punishment upon  him  for  the  following  offenses:   (1)
Applicant was, at or near Boise, Idaho, on or about 29 November  1997,
derelict in the performance of duties by willfully failing to  wear  a
helmet while riding his motorcycle.  (2)  Applicant did,  at  or  near
Mountain Home Air Force base, Idaho, on  or  about  29 November  1997,
with intent to deceive, make a false official statement  to  a  Senior
Noncommissioned Officer (NCO) that he (applicant) was on his way to an
Alcoholics Anonymous meeting when pulled over  by  Boise  Police.   On
8 December 1997, applicant acknowledged that he understood his  rights
concerning nonjudicial punishment proceedings, that he had consulted a
lawyer, that he waived his right to be  tried  by  court-martial,  and
that he did desire to make a personal a written  presentation  to  the
commander.  On 11 December 1997, the commander determined that he  had
committed  the  offenses  and  imposed  punishment  consisting  of   a
reduction to  the  grade  of  staff  sergeant  (E-5).   The  applicant
indicated on 16 December 1997 that he  did  not  wish  to  appeal  the
punishment.  The  Judge  Advocate  found  the  record  to  be  legally
sufficient on 16 December 1997.

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AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, Air Force Legal  Services
Agency, AFLSA/JAJM, states that the applicant admits that he failed to
wear a protective helmet while  operating  a  motorcycle  off-base  in
violation of The U.S. Air Force Traffic Safety Program.   However,  he
denies having made a false official  statement  to  his  Flight  Chief
regarding where he was heading  when  he  was  pulled  over  by  local
police.

With regard to the applicant’s contention that the decision to dismiss
the  false  official  statement  charge  against  him  amounted  to  a
determination that he was going to an AA meeting when stopped at 0030,
AFLSA/JAJM does not agree that the city attorney  had  to  reach  that
conclusion to dismiss the charge.  As a result of  complaints  by  the
applicant’s civilian attorney, the arresting Boise police officer  was
eventually  disciplined  for  reporting  the  applicant’s  arrest   to
Mountain Home Air Force Base (AFB) officials.  It is likely  that  the
city attorney’s decision  not  to  proceed  was  influenced  by  those
complaints and  the  discipline  levied  on  the  officer.   The  city
attorney may have decided that when the applicant drove his motorcycle
to Boise that evening to  discuss  a  tattoo  apprenticeship,  he  was
within the restriction that  allowed  him  to  drive  “for  employment
purposes.”  The city attorney’s reasons for dropping  the  charge  are
not clear, nor does the district court order provide clarification  of
the specific basis for the action.   Regardless  of  the  grounds  for
dismissal, the decision of the city attorney is not controlling on the
applicant’s commander in deciding what action, if any, is appropriate.


At any rate, the commander did not  have  the  decision  of  the  city
attorney to consider when deciding in December 1997 whether to  impose
Article 15 punishment.  The commander  had  a  substantial  amount  of
other evidence to consider before making his decision.  However,  both
the Logistics Group and 366th  Wing  Commanders  were  aware  of  that
decision when deciding  to  deny  the  applicant’s  request  that  his
Article 15 be set aside.

There was ample evidence supporting the commander’s determination that
the applicant made a false statement to the  Propulsion  Flight  Chief
and that he intended to deceive him when making  the  statement.   The
applicant has failed to meet his burden of showing  a  material  error
resulting in a clear injustice.  His application should be denied.

A copy of the Air Force evaluation, with attachments, is  attached  at
Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation, with attachments, was forwarded to
the applicant on 22 March 1999 for review and response within 30 days.
 As of this date, this office has received no response.

_________________________________________________________________

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 the Article 15, imposed on 11 December 1997, should  be
set aside and his  grade  of  technical  sergeant  be  restored.   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.   The
evidence of record supports the comments of the Deputy Chief, Military
Justice Division.  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.

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 30 September 1999, under the provisions of AFI 36-
2603.

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Patrick R. Wheeler, Member
                  Ms. Rita J. Maldonado, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 4 Dec 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 4 Mar 99, w/atchs.
   Exhibit D.  Letter, AFBCMR, dated 22 Mar 99.




                                   RICHARD A. PETERSON
                                   Panel Chair