RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-01107
            INDEX CODE:
            COUNSEL:  BURT A. BOWERS

            HEARING DESIRED:  YES


APPLICANT REQUESTS THAT:

The Article 15 imposed on 22 May 1997, be removed from his records.


APPLICANT CONTENDS THAT:

The Article 15 was imposed against him in retaliation for  his  blowing  the
whistle on illegal overtime payments within  the  Inter-American  Air  Force
Academy (XXXXX).

The applicant’s  counsel  states  that  shortly  after  becoming  the  837th
Training Support Squadron  Commander,  the  applicant  began  noticing  some
irregular overtime payments.  He immediately  reported  these  discrepancies
to the XXXXX commandant and was ordered to  keep  the  information  internal
and “sweep it under the rug.”  After several weeks it was apparent that  the
XXXXX commandant was not going to do anything about  the  illegal  over-time
payments so he told the commandant he was going to report the matter to  the
wing commander.  He notified the wing commander and was temporarily  removed
from command.  The XXXXX commandant and the wing commander did not want  the
matter investigated by outside sources because  they  knew  it  would  cause
severe problems and embarrassment.  The XXXXX  commandant  was  subsequently
asked to retire and the wing commander was reassigned.  As a result  of  the
Article 15, his career was ended because he could not be  promoted  and  was
forced to retire early.

In  support  of  the  appeal,  applicant’s  counsel   submits   letters   of
recommendation  from  previous  commanders,  co-workers  and  friends  which
attest to applicant’s good character truthfulness and dedication to the  Air
Force.

The applicant’s complete submission is attached at Exhibit A.


STATEMENT OF FACTS:

The applicant was assigned as XXXth Training Support Squadron  Commander  on
22 November 1996.

On 10 February 1997, the applicant reported  to  the  XXXX  commandant  that
improper civilian employee procedures were being used in the XXXX.

Based on reports from some of  the  applicant’s  subordinates  that  he  had
displayed disrespect towards the XXXXX commandant.  The XXXX commandant,  on
14 February 1997, appointed an  Inquiry  Officer  (IO)  to  investigate  the
allegations against the applicant.

On 21 February 1997, the applicant advised the XXXXX commandant that he  had
made an appointment to see the wing commander on 10 March 1997.  Later  that
same date the XXXXX commandant temporarily removed the  applicant  from  his
position on pending the completion of the  investigation  he  had  requested
earlier.

Based on an anonymous complaint received on 27 February  1997  in  reference
to overtime procedures in the XXXth  TRSS,  the  XXth  TRW/IG  conducted  an
investigation which found no wrongdoing.

On 12 March 1997, the IO completed the command directed investigation  which
revealed the applicant  did  make  comments  in  open  forums  (i.e.,  staff
meetings, business related meetings, one-on-one  meetings,  and  commander’s
calls) that were disrespectful towards the XXXXX commandant.

The applicant filed a complaint  to  the  Department  of  Defense  Inspector
General (DoD/IG) on 13 March 1997, alleging the  XXXXX  commandant  reprised
against him by removing him from command for preparing to  advise  the  wing
commander of improprieties in the civilian  overtime  procedures  at  XXXXX.
In addition, the  applicant  also  alleged  improprieties  in  the  civilian
overtime procedures at XXXXX that had not been investigated.

On 3 April 1997, the XXXXX commandant notified the applicant of  his  intent
to impose nonjudicial punishment under Article 15 of the Uniformed  Code  of
Military Justice (UCMJ) for violations of Article 89  (Disrespect  toward  a
Superior Commissioned  Officer)  and  Article  133  (Conduct  Unbecoming  an
Officer and a Gentleman).  Specifically, for referring to his  commander  as
a “bastard”, “coward” and a “fucker” and  saying  that  he  “could  chew  on
this” while pointing at  his  groin  area  to  subordinate  members  of  his
squadron.  In addition, he repeatedly used profanity directed at, or in  the
presence of subordinate members of  his  squadron.   After  consulting  with
military counsel, the applicant waived his right to trial by  court-martial.
 After considering the applicant’s oral presentation on  22  May  1997,  the
commandant imposed punishment consisting of forfeiture of $1,000.00 pay  for
two  months  and  a  reprimand.   The  applicant  appealed  the  punishment;
however, on 26 June 1997, his appeal was denied.

The DoD/IG referred the applicant’s complaint to the Secretary  of  the  Air
Force Inspector General on 8 May 1997 for action.

On 21 May 1997, the XXth TRW Vice Commander ordered a  team  from  the  XXth
TRW Staff Judge Advocate and XXth CPTS/CC to investigate  procedures  within
the XXX TRSS.  The investigation found no wrongdoing.

On 30 July 1997, Xnd Air Force Commander determined the Article 15 would  be
filed in the applicant’s Officer Selection Record (OSR) and Officer  Command
Selection Record (OCSR).

The  Air  Education  and  Training  Command  Inspector   General   (AETC/IG)
conducted an  investigation  from  23  June  1997  to  31  July  1997.   The
investigation concluded the evidence did not substantiate his allegation  of
reprisal.  In  addition,  the  alleged  improper  overtime  procedures  were
investigated twice and no wrongdoing was found.

A copy of the Article 15 was filed in  the  applicant’s  OSR  on  20 October
1997.

The applicant was considered and not selected for promotion to the grade  of
lieutenant colonel by the Calendar Year  1998B  Central  Lieutenant  Colonel
Selection Board.

On 1 March 1999, the applicant voluntarily retired in  the  grade  of  major
under the Temporary Early Retirement  Authority  (TERA).   He  completed  17
years, 3 months, and 6 days of active service.

Applicant’s OPR profile since 1990, is as follows:

      PERIOD ENDING               EVALUATION OF POTENTIAL

        23 Jul 90                   Meets Standards (MS)
        23 Jul 91                            MS
        28 Jun 92                            MS
         3 Dec 92                            MS
         3 Dec 93                            MS
         3 Dec 94                            MS
         3 Dec 95                            MS
        31 Oct 96                            MS
      * 31 Oct 97 (Referral)      MS on all factors except
                                  Leadership Skills and
                                  Professional Qualities
        31 Oct 98                            MS

* Top report reviewed by CY98B Lt Col board.


AIR FORCE EVALUATION:

The Acting  Chief,  Military  Justice  Division,  AFLSA/JAJM,  reviewed  the
application and states the Article 15 action  is  legally  sufficient.   The
applicant has not alleged any error in the Article  15  process  other  than
alleging the punishment resulted from  "trumped  up  charges  to  keep  [the
applicant] quiet and from being a  whistle  blower  concerning  the  illegal
overtime payments." The applicant was afforded the right to present  matters
in his defense during the Article 15  proceedings  and  personally  appeared
before his commander.   After  considering  all  of  the  evidence  and  the
circumstances under which the offenses occurred,  the  commander  determined
the applicant committed the offenses alleged and  imposed  punishment.   The
applicant was afforded the right  to  appeal  to  the  appellate  authority,
which he did and after considering all matters  presented,  his  appeal  was
denied.

AFLSA/JAJM  states  that  two  minor  administrative  errors   occurred   in
processing the Article 15, both of which were noted  by  Xnd  AF/SJA  during
the legal review on 11 August 97.  Both constitute harmless  error  and  did
not prejudice his substantive rights.  Based on  the  information  available
in  the  record,  the  applicant's  nonjudicial  punishment   was   properly
accomplished  and  he  was  afforded  all  rights  granted  by  statute  and
regulation.  Therefore, they recommend denial of his request.

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

The Chief, General  Law  Division,  AF/JAG,  reviewed  the  application  and
cautions the Board that they are not bound  by  the  IG's  conclusions  that
reprisal action was not substantiated.  In  this  respect,  they  note  that
under 10 USC 1034(f), the applicant is entitled to raise the same  claim  of
reprisal before the Board.  In reviewing  such  an  application,  the  Board
shall review the IG's report. To meet this  requirement,  they  obtained  an
unredacted  copy  of  the  report  from  SAF/IG.   In   reaching   its   own
conclusions, the Board may request the IG to  gather  further  evidence  and
may (but is not required to)  receive  oral  argument,  examine  and  cross-
examine  witnesses,  take  depositions,  and,  if  appropriate,  conduct  an
evidentiary hearing.

AF/JAG states that while the Board is not bound  by  the  IG's  conclusions,
neither is there any reason to depart from the  normal  principle  that  the
applicant bears  the  burden  of  proving  error  or  injustice.   Here  the
applicant fails.  While his attorney makes the allegation  that  he  is  the
victim of reprisal, he cites no supporting evidence,  save  the  coincidence
that the applicant was relieved of command on the same day he  informed  the
XXXXX commandant he had made an appointment to see the wing commander.   But
even this is unpersuasive.  The applicant says he told  the  commandant  "he
was going to report the matter" of suspected overtime improprieties  to  the
wing commander, but according to the  commandant  (as  reported  to  the  IG
investigator), the applicant informed him only that he was  going  to  "seek
career guidance" from the commander. (The IG report found that although  the
applicant never told the commandant he specifically intended to  report  the
overtime matter to the wing commander, the commandant could reasonably  have
concluded the subject would arise during the meeting.)  More important,  the
applicant offers no rational explanation why the XXXXX  commandant  or  wing
commander would want to "cover  up"  any  improprieties  in  the  squadron's
overtime practices-none of which, incidentally, were found by either of  the
two investigations into those allegations.  There is no evidence  either  of
them would have  benefited  personally  from  such  improprieties,  or  that
either of them had a relationship with  any  other  person  who  might  have
benefited such that they would not have wanted the improprieties revealed.

In regard to the applicant’s own misconduct, AF/JAG notes that  he  provides
no evidence to directly refute the allegations in the Article  15.   He  did
not, for example, provide affidavits or statements from witnesses  who  were
present at the relevant meetings but who swear the applicant  did  not  make
the disrespectful comments and gesture  as  alleged.   He  provides  only  a
stack of 70 character references attesting generally to his  excellent  duty
performance and other positive traits.  While such "good  soldier"  evidence
can be relevant, it does not, in this case, persuade  them  the  allegations
of misconduct against  him  were  “trumped  up".   Moreover,  although  this
collection  of  incidents  for  which  the  applicant  received  nonjudicial
punishment appears to be the only blemish on his military record,  in  their
opinion the command response to  the  misconduct  was  not  so  extreme  and
shocking as to constitute an injustice.  Therefore,  they  recommend  denial
of his request.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant and counsel on 21 June 1999, for review  and  response  within  30
days.  However, 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 do not find his  uncorroborated  assertions,  in  and  by
themselves, sufficiently compelling to override the rationale set  forth  by
the Air Force.  Therefore, we agree with the  opinions  and  recommendations
of the Air Force and adopt its 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 substantive evidence to the contrary,  we  find
no compelling basis to recommend granting the relief.

4.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  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 5 October 1999, under the provisions of AFI 36-2603:

            Mrs. Barbara A. Westgate, Panel Chair
            Mr. Edward H. Parker, Member
            Mr. Patrick R. Wheeler, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 27 Nov 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 27 May 99.
      Exhibit D. Letter, USAF/JAG, dated 18 Jun 99.
      Exhibit E. Letter, AFBCMR to Applicant, dated 21 Jun 99.
      Exhibit F. Letter, AFBCMR to Counsel, dated 21 Jun 99.
      Exhibit G. Letter, AFBCMR to Counsel, dated 28 Jun 99.




                             BARBARA A. WESTGATE
                             Panel Chair