RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00800
            INDEX CODE:  126.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15, initiated  on  23 Aug 96,
and imposed on 29 Aug 96, be set aside and removed from his records.

His  Enlisted  Performance  Report  (EPR)  rendered  for  the   period
11 Jun 96 through 8 Oct 96 be  declared  void  and  removed  from  his
records.

His EPR rendered for the period 9 Oct 96 through 8 Oct 97 be  declared
void and removed from his records.

The Letter of Reprimand (LOR), dated 30 Sep 96, and the Control Roster
action be declared void and removed from his records.

His assignment be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was unjustly punished for disobeying the order of a noncommissioned
officer (NCO) by refusing his order to produce an identification  card
(ID) and to remain silent, and, resisting  apprehension  by  the  NCO.
The NCO had believed he was in violation of the governing  instruction
regarding dress and appearance.

His EPR closing 8 Oct 96 resulted from the unjust Article 15.  He  was
placed on the control roster because of this report.  The report  also
had an adverse impact on his EPR closing 8 Oct 97.

He was ordered by his supervisor to provide input for his  EPR.   Even
though he felt he should not have had to, he begrudgingly did so.   As
a result, he was given an LOR for falsifying official  documents.   He
was placed on the control roster and his assignment was canceled.

In support of his appeal, the applicant provided personal  statements,
copies  of  a  letter  of  counseling,  Security  Police   Report   of
Investigation, and LOR, and other documents associated with the matter
under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data  System  (PDS)  reflects
that the applicant is currently serving on active duty in the grade of
technical sergeant, effective and with date of rank (DOR) of 1 Jan 96.
 His Total Active Federal Military Service Date (TAFMSD) is 16 Feb 83.

Applicant’s Airman/Enlisted Performance Report (APR/EPR) profile since
1989, as reflected in the PDS, follows:

      PERIOD ENDING     EVALUATION

      14 Aug 89        9
      12 Dec 89        9
       4 Nov 90        4 (EPR)
       4 Nov 91        5
      23 Jul 92        4
      23 Jul 93        5
      10 Jun 94        5
      10 Jun 95        5
      10 Jun 96        4
  *   8 Oct 96         2 (Referral)
  *   8 Oct 97         4
      10 Oct 98        5

* Contested Reports.

On 23 Aug 96,  the  commander  notified  the  applicant  that  he  was
considering whether he should be punished under  Article  15,  Uniform
Code  of  Military  Justice  (UCMJ)  based  on  allegations  that  the
applicant, did, on or about 17 Aug  96,  willfully  disobey  a  lawful
order  of  a  noncommissioned  officer  by  failing  to   produce   an
identification (ID) card and to remain silent,  and,  resisting  being
apprehended.  After consulting military legal counsel,  the  applicant
waived his right to demand trial by  court-martial  and  accepted  the
nonjudicial punishment proceedings under  Article  15.   He  indicated
that he desired to make an oral  presentation  to  the  commander  and
submitted  written  comments  for   review.    On   29 Aug 96,   after
considering the matters presented  by  the  applicant,  the  commander
found that the applicant had committed one or  more  of  the  offenses
alleged and imposed punishment.  The applicant  received  a  suspended
reduction from technical sergeant to staff sergeant until 24  Feb  97.
Applicant appealed the punishment but it  was  denied.   A  review  by
legal authority found the Article 15 to be legally sufficient.

On 30  Sep  96,  the  applicant  received  an  LOR  for  intentionally
providing false information to his supervisor to be used in his EPR on
16 Sep 96.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and indicated that the statements contained in the applicant's package
tended to largely support his version  of  the  facts.   According  to
JAJM, the major source of confusion appeared to have  been  caused  by
the bag the applicant was  carrying  containing  the  peanuts  he  had
purchased at the Commissary for  his  friend  P---.   When  MSgt  W---
observed the applicant at P---'s cashier station, he assumed that  the
bag represented a purchase made by the applicant at the BX.  Since the
cashiers normally request to see an ID when the purchaser  is  not  in
uniform, MSgt W--- apparently assumed that the applicant had used  his
ID accordingly and was, thus, lying to him about not having it on  his
person (MSgt T--- later inquired of P---  whether  the  applicant  had
made a purchase at the BX and she stated he had not--apparently MSgt W-
-- never attempted a similar inquiry).

According to JAJM, in order to effectively establish an offense  under
Article 91, UCMJ, the government must establish that the  accused  was
an enlisted person, that the accused received a lawful order  from  an
NCO, that the accused had a duty to  obey  the  order,  and  that  the
accused willfully disobeyed the order.  Obviously, the  accused  could
not have produced an ID if he did not have one on his person,  as  the
facts seem to have indicated.  It appears from  the  available  record
that the applicant was attempting to comply with MSgt W---'s order  to
present an ID card by going to his car to retrieve his ID card.  Also,
based on MSgt T---'s statement, it appears the applicant complied with
MSgt W---'s order to remain silent.

In order to effectively establish an offense  under  Article  95,  the
government must establish that a certain person attempted to apprehend
the accused, the person had the authority to effect the  apprehension,
and  that  the  accused  actively  resisted  the  apprehension.    The
resistance must be active, such as assaulting the person attempting to
apprehend or flight. The applicant's decision to walk away from MSgt W-
-- and into the parking lot in an attempt to comply with his order  to
produce an ID card would not appear to constitute  flight,  especially
when it is accomplished by merely walking at  a  normal  pace  in  the
company of the person  attempting  the  apprehension.   The  applicant
voluntarily met MSgt W--- at the law enforcement desk  to  attempt  to
resolve the matter.

In JAJM’s view, it  appeared  that  the  facts  as  presented  in  the
attached package supported  a  finding  that  the  applicant  did  not
disobey the orders of MSgt W--- and did not  resist  apprehension.  It
appears that MSgt W--- overreacted and became angry about a  situation
that he chose to escalate concerning a perceived uniform violation  by
the applicant.  (Apparently it was determined later that the applicant
was  not  out  of  compliance  with  Air  Force  uniform   standards).
Accordingly, it would appear relief is appropriate.

After a review of the available records, JAJM concluded  the  offenses
alleged in the  Article  15  were  not  supported  by  the  facts  and
recommended that the Board consider the  applicant's  request  on  its
merits.

A complete copy of the JAJM evaluation is at Exhibit C.

The Enlisted  Promotion  and  Military  Testing  Branch,  AFPC/DPPPWB,
reviewed this application and stated that should the EPR closing 8 Oct
96 be voided or upgraded, providing  he  is  otherwise  eligible,  the
applicant would be entitled to  supplemental  promotion  consideration
beginning with cycle 98E7.  According to  DPPPWB,  the  applicant  was
ineligible for the 97E7 cycle for promotion to  the  grade  of  master
sergeant.  Therefore, voiding the control roster action would have  no
impact on his promotion consideration to master sergeant.

A complete copy of the DPPPWB evaluation is at Exhibit D.

The Commander’s Program Branch, AFPC/DPSFC, reviewed this  application
and indicated that they are normally not in the business of  assessing
a commander's decision-making authority when assigning  administrative
actions to subordinates.  The applicant had an  opportunity  to  rebut
the Article 15, LOR, and  presumably  the  control  roster  placement.
However, with regard to the matter of the Article 15, DPSFC  indicated
a letter provided by MSgt T---, a member of the applicant's  squadron,
stated that since he has had time to review the situation he  believes
the applicant may  have  been  harassed,  especially  considering  the
applicant did not have a uniform violation.  He also stated  that  the
applicant complied when asked the second time, to remain silent  while
at the security police desk.  Additionally, a  member  in  the  Supply
squadron provided a statement on the applicant's  behalf,  stating  he
was also stopped for an apparent uniform violation by  MSgt  W---  and
the situation started to get heated.  Again, MSgt W--- was incorrect.

DPSFC noted that the applicant received the Article 15 for failing  to
produce  his  identification,  failing  to  remain  silent,  and   for
resisting apprehension.  DPSFC indicated that  although  they  do  not
know what actually occurred, it did appear the situation  was  heated,
with both sides  believing  they  were  correct.   The  applicant  was
correct, but may not have acted appropriately,  given  the  nature  of
MSgt W---'s tone with him. Also, the applicant could not have produced
his identification card, because it was in his  vehicle,  not  on  his
person.

DPSFC recommended denying the applicant's request to remove  the  LOR,
Control Roster placement and EPR on the basis that the  applicant  did
not provide sufficient justification to warrant removal.  According to
DPSFC the documentation submitted seemed to  support  the  applicant's
rendition of what occurred at the base exchange, which resulted in the
Article 15.  This, coupled with HQ AFLSA/JAJM's review  of  the  case,
propelled them to recommend approval of  the  applicant's  request  to
remove his Article 15, and remove comments on his  performance  report
which discussed the Article 15.

A complete copy of the DPSFC evaluation is at Exhibit E.

The BCMR and SSB Section, AFPC/DPPPAB, reviewed this  application  and
indicated that they would be strongly opposed to the Board voiding the
EPR closing 8 Oct 96 in its entirety as they found  the  remainder  of
the comments in the contested report were substantiated.  Although the
applicant  maintained  his  innocence,  he  failed  to   provide   any
convincing evidence (other than his own word) to prove he was innocent
of the other offenses.  The applicant was arrested  for  “stalking”  a
married woman and received an LOC.  He did provide false statements to
his rater for inclusion on his EPR and received an LOR.   In  DPPPAB’s
view, the EPR was not unfair.

According to DPPPAB, the applicant believed he did not receive  a  “5”
promotion recommendation on his EPR closing 8 Oct 97  because  of  his
placement on the control roster.  DPPPAB stated  that  they  found  no
mention of the fact that the applicant was on the  control  roster  in
the contested report.  Therefore, they do not recommend upgrading  the
contested report if the Board should remove  the  applicant  from  the
control  roster.   It  appeared  that  the  report  was  rendered   in
accordance with the governing directive.

A complete copy of the DPPPAB evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant indicated that his primary contention is  that  his  EPR
closing 8 Oct 96 was totally unfounded and has snowballed into even  a
larger form of punishment as a result, to include  affecting  his  EPR
closing 8 Oct 97.

Applicant’s  response  and  additional  documentary  evidence  are  at
Exhibit H.

_________________________________________________________________


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 warranting corrective  action
regarding the Article 15 imposed on 29 Aug 96 and the  EPR  closing  8
Oct 96.

      a.  After  reviewing  the  available  evidence,  we  agree  with
AFLSA/JAJM that the facts of this case do not support a  finding  that
the applicant disobeyed  a  lawful  order  or  resisted  apprehension.
Accordingly, we recommend that the Article 15 imposed on 29 Aug 96  be
set aside and removed from the applicant’s records.

      b. Since it appears to us that the EPR closing 8 Oct 96 may have
been  based  on  factors  other  than  the  applicant’s   performance,
specifically,  the  Article  15  punishment,  and,  in  light  of  our
recommendation to have it removed from  the  applicant’s  records,  we
believe any doubt concerning this matter should be resolved  in  favor
of the applicant.  Therefore, we also  recommend  that  the  contested
report be voided and removed from his records.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice regarding  the  following
issues.

      a.  We  note  the  applicant’s  request  that  his  EPR  closing
8 Oct 97 be voided and removed from his  records.   However,  after  a
review of all the available evidence, we are not  persuaded  that  his
evaluators were unable to render fair and honest  assessments  of  his
performance, or, that the contested report was based on factors  other
than his performance during the period covered  by  this  report.   In
view of the above, and in the absence of evidence to the contrary,  we
conclude that no basis exists to recommend  favorable  action  on  the
applicant’s request.

       b.  It  appears  that  the  applicant  received  an   LOR   for
intentionally providing false information to his supervisor to be used
an EPR, which resulted in his placement on the control roster and  the
cancellation of his assignment.  No evidence has been presented  which
would lead us to believe that the information used as a basis for  the
LOR was erroneous, or there was an abuse of  discretionary  authority.
In view of the above, and in the absence of evidence to the  contrary,
we conclude that no basis exists to recommend favorable action on  the
applicant’s
requests that the LOR and control roster action be voided and  removed
from his records and his assignment be reinstated.

_________________________________________________________________

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, UCMJ, initiated
on 23 Aug 96 and imposed on 29 Aug 96, be declared void  and  expunged
from his records, and all rights, privileges, and property of which he
may have been deprived be restored.

      b.  The Enlisted Performance Report, AF Form 910,  rendered  for
the period 11 Jun 96 through 8 Oct 96, be declared  void  and  removed
from his records.

It  is  further  recommended  that   he   be   provided   supplemental
consideration for promotion to the grade of master  sergeant  for  all
appropriate cycles beginning with cycle 98E7.

If  selected  for  promotion  to  the  grade  of  master  sergeant  by
supplemental consideration, he be provided any additional supplemental
consideration required as a result of that selection.

If  AFPC  discovers  any  adverse  factors  during  or  subsequent  to
supplemental consideration that are separate and apart, and  unrelated
to the issues involved in this application that  would  have  rendered
the applicant ineligible for the promotion, such information  will  be
documented and presented to the Board for a final determination on the
individual's qualifications for the promotion.

If supplemental promotion consideration results in the  selection  for
promotion to the higher grade, immediately after  such  promotion  the
records shall be corrected to show that he was promoted to the  higher
grade on the date of rank established by  the  supplemental  promotion
and that he is entitled to all pay, allowances, and benefits  of  such
grade as of that date.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 2 Mar 99, under the provisions of AFI 36-2603:

      Mrs. Barbara A. Westgate, Panel Chair
      Mr. Michael V. Barbino, Member
      Mr. Roger E. Willmeth, Member

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

     Exhibit A.  DD Form 149, dated 10 Mar 98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 19 May 98.
     Exhibit D.  Letter, AFPC/DPPPWB, dated 11 Jun 98.
     Exhibit E.  Letter, AFPC/DPSFC, dated 26 Aug 98.
     Exhibit F.  Letter, AFPC/DPPPAB, dated 31 Aug 98.
     Exhibit G.  Letter, SAF/MIBR, dated 21 Sep 98.
     Exhibit H.  Letter, applicant, dated 18 Nov 98.




                                   BARBARA A. WESTGATE
                                   Panel Chair




AFBCMR 98-00800




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed 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, UCMJ,
initiated on 23 Aug 96 and imposed on 29 Aug 96, be, and hereby is,
declared void and expunged from his records, and all rights,
privileges, and property of which he may have been deprived be
restored.

            b.  The Enlisted Performance Report, AF Form 910, rendered
for the period 11 Jun 96 through 8 Oct 96, be, and hereby is, declared
void and removed from his records.

      It is further directed that he be provided supplemental
consideration for promotion to the grade of master sergeant for all
appropriate cycles beginning with cycle 98E7.

      If selected for promotion to the grade of master sergeant by
supplemental consideration, he be provided any additional supplemental
consideration required as a result of that selection.

      If AFPC discovers any adverse factors during or subsequent to
supplemental consideration that are separate and apart, and unrelated
to the issues involved in this application that would have rendered
the applicant ineligible for the promotion, such information will be
documented and presented to the Board for a final determination on the
individual's qualifications for the promotion.

      If supplemental promotion consideration results in the selection
for promotion to the higher grade, immediately after such promotion
the records shall be corrected to show that he was promoted to the
higher grade on the date of rank established by the supplemental
promotion and that he is entitled to all pay, allowances, and benefits
of such grade as of that date.





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency