RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00701

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Article 15, dated 21 December 1994, be removed  from  his  records
and the $300.00 fine be reimbursed.

2.    The Enlisted Performance  Report  (EPR)  rendered  for  the  period  2
January 1994 through 1 January 1995 be declared void and  removed  from  his
records.

3.    He be  reinstated  on  active  duty  in  his  former  grade  of  staff
sergeant, with retroactive pay and allowances.

4     The money used to provide medical/dental care due to the loss  of  his
military health coverage for himself and CHAMPUS/TRICARE  coverage  for  his
spouse be returned.

5.    His top secret SCI clearance be reinstated.

6.    He be given the opportunity to test for  promotion  to  the  grade  of
technical sergeant within three months of his return to active duty.

7.    He be given adequate monetary compensation  for  suffering  caused  by
the incident and the damage done to his career.

8.    All pay lost due to his reduction in grade from staff  sergeant  (E-5)
to Airman First Class (E-4) be returned.

9.     Points  for  Good  Conduct  Medal  and  other  applicable  awards  be
restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not commit the charged offenses; authorities should  have  considered
less severe forms of  disciplinary  measures;  and  his  superiors  did  not
comply with various regulations and operating instructions at  the  time  he
was punished for his non-compliance.

The applicant states that false statements were made and there is a lack  of
evidence for the Article 15.  In addition, Air Force rules  and  regulations
were not complied with and mitigating information was ignored.

The  applicant  also  states  that  the  contested  EPR  was  not  completed
properly.  In addition, training and feedback sessions were not provided  or
documented.  The contested EPR should have contained a reference to the  Air
Force Achievement Medal, First  Oak  Leaf  Cluster  (AFAM,  1  OLC)  he  was
awarded during the contested period.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 5 January 1982.

The applicant was promoted to the grade of staff  sergeant  (E-5)  effective
and with date of rank of 1 February 1991.

On 18 February 1991, the applicant reenlisted in the Regular Air  Force  for
a period of 6 years in the grade of staff sergeant (E-5).

On 28 February 1991, the applicant was denied award of the  Air  Force  Good
Conduct Medal (AFGCM) for the period 21 December 1985 to 20 December 1988.

Hq 722nd Support Group Special Order GA-119, dated 16 August  1994,  awarded
the applicant the AFAM, 1 OLC, for the period  7 February  1992  through  30
April 1994 based on meritorious service during his assignment at March AFB.

On  14  November  1994,  the  applicant’s  commander  initiated  nonjudicial
punishment under Article 15,  UCMJ  for  three  violations  of  Article  92.
Specifically, for one specification of failing  to  obey  a  lawful  general
regulation (started leave in Osan AB area instead  of  Kunsan  AB)  and  two
specifications of dereliction of duty  (failed  to  sign  out  of  unit  and
failed to ensure an EPR was completed prior to  his  leave).   However,  the
Article 15 action was never completed.

On  5  December  1994,  the  applicant’s  commander  initiated   nonjudicial
punishment under Article  15,  UCMJ  for  four  violations  of  Article  92.
Specifically, for one specification of failing  to  obey  a  lawful  general
regulation (started leave in  Osan  AB  area  instead  of  Kunsan  AB),  two
specifications of dereliction of duty  (failed  to  sign  out  of  unit  and
failed to ensure  an  EPR  was  completed  prior  to  his  leave),  and  one
specification of failing to obey a lawful order (failed to  give  his  leave
form to SMSgt S----).  The applicant waived his right to a trial  by  court-
martial and accepted the  nonjudicial  punishment.   After  considering  the
applicant’s  written  presentation  on  15  December  1994,  the   commander
determined the applicant committed one or  more  of  the  alleged  offenses.
The punishment consisted of  reduction  in  grade  from  staff  sergeant  to
senior airman, forfeiture of $150 per month for two months, and  restriction
to the limits of Kunsan AB for 30 days.  The reduction to senior airman  was
suspended until 14 June 1995, at which time it would have been remitted.

On  13  January  1995,  the  applicant’s  commander  vacated  the  suspended
reduction  after  determining  the  applicant  violated  Article  107,  UCMJ
(making a false official statement).  Specifically, the applicant failed  to
list the Article 15 action on his Personnel Security Questionnaire.

On 26 January 1995, the applicant was reduced to the grade of senior  airman
(E-4) effective 15 December 1994.  As a result of the  reduction,  his  High
Year of Tenure (HYT) was established as 5 December 1995.

On 10 December 1995, the applicant, was released from active duty under  the
provisions of AFI 36-3208 (Reduction in  Force)  and  transferred  into  the
Inactive Reserves. The applicant received $22,084.84 in separation pay.   He
served 13 years, 11 months and 6 days of active service.

The applicant’s DD Form  214  issued  upon  his  release  from  active  duty
indicates that he was awarded the AFAM,  1  OLC;  the  Air  Force  Longevity
Service Ribbon, with 2 devices; the  Air  Force  Training  Ribbon;  the  Air
Force Overseas Short Tour Ribbon; the Air Force Overseas Long  Tour  Ribbon,
with 1 device; the National Defense Service Medal,  the  Small  Arms  Expert
Marksmanship Ribbon/Riffle; NCO Professional Military Education Ribbon;  Air
Force Outstanding Unit Award, with 1 device; and the Air Force Good  Conduct
Medal, with 3 devices.

Applicant’s EPR profile since 1990, reflects the following:

       PERIOD ENDING                 OVERALL EVALUATION

        18 Oct 90                       4
         1 May 91                       4
         1 Jan 92                       3
         1 Jan 93                       4
         1 Jan 94                       4
        *1 Jan 95                       2
        31 Jul 95                       4

     *Contested Report

_________________________________________________________________




AIR FORCE EVALUATION:

The Air Force Legal Services Agency, AFLSA/JAJM,  reviewed  the  application
and states that  the  applicant  has  the  burden  of  providing  sufficient
evidence of probable material error or  injustice,  and  has  not  met  that
burden.  Instead of accepting the Article 15  action,  the  applicant  could
have elected a trial by court-martial and required the Government  to  prove
the charges beyond a reasonable doubt.   Instead,  the  applicant  chose  to
have his commander adjudicate this  matter  as  a  non-judicial  proceeding.
The commander,  after  reviewing  the  evidence,  exercised  the  discretion
entrusted to him and  determined  that  the  applicant  was  guilty  of  the
charged offenses.  The commander also imposed  the  punishment  he  believed
was appropriate.  To overcome the presumption of legitimacy attached to  the
commander’s actions, the  applicant  must  prove  that  these  actions  were
patently unfair or clearly wrong.  Therefore, they recommend denial  of  the
applicant’s requests.

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

The Chief, BCMR and SSB Section, AFPC/DPPAB, reviewed  the  application  and
states that the applicant’s contention that  the  contested  EPR  is  unjust
because he was not given feedback from his first rater during the  contested
period is unwarranted. AFI 36-2401, para 2.10, states,  “A  rater’s  failure
to conduct a required or requested  feedback  session  does  not  by  itself
invalidate an EPR.”  It is obvious the applicant  received  at  least  three
performance  feedbacks  during  the  reporting  period.   Unfortunately,  he
failed to comply with, or maintain the standards of performance outlined  by
his supervisor. 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  for  clarification  and  explanation.   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  instance.   Since  the  applicant  has  delayed
processing of the appeal, it would be difficult if not  impossible  for  the
IG or Social Actions  to  conduct  a  meaningful  investigation.  Air  Force
policy charges a rater to get meaningful information from the ratee  and  as
many sources as possible.  It is the rater’s  ultimately  responsibility  to
determine which accomplishments  are  included  on  the  EPR.   Award  of  a
decoration is not a mandatory entry on an EPR.   Therefore,  they  recommend
denial of his request to reaccomplish the contested EPR.

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

The Separations Branch, AFPC/DPPRS,  reviewed  the  application  and  states
that there are no errors or  irregularities  causing  an  injustice  to  the
applicant with  respect  to  the  separation  processing.   The  applicant’s
release from active duty complies with directives in effect at the  time  of
his release.  The records indicate his military  service  was  reviewed  and
appropriate  action  was  taken.   Therefore,  they  recommend   denial   of
applicant’s request.

A copy of their evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluations and states that  the  facts
and evidence of his case are not addressed, acknowledged or are  downplayed.
 In addition, mistakes, false statements and wrongful acts by his  chain  of
command are not referenced or addressed.  The Government’s  allegations  are
restated with no action taken to note  his  explanations.   The  regulations
are quoted only to strengthen allegations against him, none used to  support
his actions.  He believes the evaluations  are  extremely  bias  and  unfair
since none of his facts  are  properly  acknowledged  or  addressed.   These
individuals seem to have one agenda which  is  to  prevent  his  facts  from
being taken into  consideration.   He  requests  that  these  advisories  be
redone with an emphasis not only on the Government’s evidence but  also  the
statements and evidence he provided.

Applicant's complete response is attached at 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.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice to warrant removing  the  contested
EPR and Article 15 from his records and  reinstating  him  to  active  duty.
After thoroughly reviewing the evidence of record, we  do  not  believe  the
somewhat minor offenses justified issuance of an Article 15.   In  addition,
we note that applicant’s commander vacated the suspended  reduction  because
the applicant failed  to  list  the  Article  15  action  on  his  Personnel
Security  Questionnaire.   However,   at   the   time   he   completed   the
questionnaire, the applicant had not received an Article 15.  Therefore,  we
recommend the Article 15 be removed from his records.  In view of  this  and
since the contested EPR also referenced the incidents which were  the  basis
for the LOR, we also recommend it be voided as well.  The  Article  15  also
resulted in the  applicant  being  reduced  in  grade  and  having  his  HYT
established as  5 December  1995.   Based  on  our  determination  that  the
Article 15 should be removed from his  records,  we  also  recommend  he  be
reinstated to active duty.   Once  the  applicant  has  been  reinstated  to
active duty, he will be provided sufficient time to test  for  promotion  to
the grade of technical sergeant.  While we are not exactly  sure  when  this
will occur, we assume it will take at least 60 to 90 days. In  addition,  as
a result of the Article 15  being  declared  void  and  restoration  of  all
rights, privileges and property of which he may have been deprived, he  will
receive all pay lost due to the grade reduction.

4.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice  regarding  the  remainder  of  his
requests.  In this respect, we note the following:

      a.    Based upon our  above  determination,  applicant’s  request  for
reinstatement  of  his  top   secret   clearance   and   reimbursement   for
medical/dental expenses could be administratively  handled.   The  applicant
may  submit  his  requests,  with  supporting  documents,  to   the   proper
authorities for consideration.  If his requests  are  not  answered  to  his
satisfaction and he still believes his records are in error  or  unjust,  he
may petition the Board regarding these issues at that time.

       b.     The  Board  is   without   authority   to   provide   monetary
compensation.  In view of  this,  no  action  can  be  taken  regarding  his
request for adequate monetary  compensation  for  suffering  caused  by  the
incident and the damage done to his career.

      c.    In regard to applicant’s request for awards, we find nothing  in
the evidence of record to indicate that he should  be  awarded  any  awards.
Therefore,  in  the  absence  of  evidence  to  the  contrary,  we  find  no
compelling basis to recommend granting this portion of his requests.

5.    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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      a.    The nonjudicial punishment under Article  15,  Uniform  Code  of
Military Justice (UCMJ), imposed on 15 December 1994, and  the  vacation  of
suspended nonjudicial punishment, dated 13 January 1995,  be  declared  void
and removed from his records and all  rights,  privileges  and  property  of
which he may have been deprived be restored.

      b.    The Enlisted Performance Report (EPR),  AF  Form  910,  rendered
for the period 2 January 1994 through 1 January 1995, be declared  void  and
removed from his records.

      c.    He was not released from active duty on 10  December  1995,  but
was continued on active duty and was ordered  Permanent  Change  of  Station
(PCS) to his home of selection pending further orders.

      d.    An AF Form 77, Supplemental Evaluation Sheet,  be  prepared  and
inserted  in  the  record  in  its  proper  sequence  indicating   that   no
performance report is available for the period when member was  not  serving
on active duty and containing the statement, “Report  for  this  period  not
available for administrative  reasons  which  were  not  the  fault  of  the
member.”

      e.    On  17  February  1997,  he  was  honorably  discharged  and  on
18 February 1997, reenlisted in the Regular Air Force for a  period  of  six
(6) years.


The following members of the Board considered this application in  Executive
Session on 25 February 1999, under the provisions of AFI 36-2603:

                  Mr. Henry Romo, Jr., Panel Chair
                  Ms. Olgar M. Crerar, Member
                  Mr. John E. Pettit, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 28 Feb 98, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 5 May 98.
      Exhibit D.  Letter, AFPC/DPPPAB, dated 22 May 98.
      Exhibit E.  Letter, AFPC/DPPRS, dated 23 May 98.
      Exhibit F.  Letter, SAF/MIBR, dated 15 Jun 98.
      Exhibit G.  Letter, Applicant, dated 15 Sep 98, w/atchs.
      Exhibit H.  Letter, Congressman, dated 13 Oct 98, w/atchs.




             HENRY ROMO, JR.
                                  Panel Chair