RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-00017
            INDEX CODE:  126.04

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The vacation of the suspended portion of  the  nonjudicial  punishment
under Article 15, on 13 Dec 96, be set  aside  and  removed  from  his
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not violate a lawful order because there was no lawful order in
existence.   His  initial  commander  had  rescinded  the  order.   He
believes that the vacation was a vendetta against him.

In support of  his  appeal,  the  applicant  provided  two  supportive
statements.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was relieved from active duty on 28 Feb 97 and  retired  for
length of service, effective 1 Mar  97,  in  the  grade  of  technical
sergeant.  He was credited with 20 years and 8  days  of  active  duty
service.   Prior  to  the  matter  under  review,  the  applicant  was
progressively promoted to the grade of master sergeant.

Applicant’s Airman/Enlisted Performance Report (APR/EPR) profile since
1985 follows:

      PERIOD ENDING     EVALUATION

      23 May 85        9
      23 May 86        9
      23 May 87        9
      23 May 88        9
      23 May 89        9
      23 May 90        5 (EPR)
      23 May 91        4
      23 May 92        5
      16 Nov 92        4
      16 Nov 93        5
      16 Nov 94        5
      16 Nov 95        5


The relevant facts pertaining to this application are contained in the
letter  prepared  by  the  appropriate  office  of  the   Air   Force.
Accordingly, there is no need to recite these facts in this Record  of
Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and recommended denial.  JAJM noted that, on 11 Jun 96, the applicant,
then a master sergeant, was punished under Article  15  for  adultery.
The punishment consisted of a suspended  reduction  to  the  grade  of
technical sergeant, forfeiture of $1,089.90  pay  per  month  for  two
months, and a reprimand.  The reduction in grade was  suspended  until
10 December 1996, after which it would  be  remitted  without  further
action  unless  sooner  vacated.   On  10  Dec  96,  the   applicant's
subsequent commander notified the applicant that he intended to vacate
the suspension imposed by  his  predecessor  on  the  basis  that  the
applicant violated a lawful order given by Colonel  XXXX  to  have  no
contact with the airman with whom he committed adultery.   On  13  Dec
96, the commander determined that  the  applicant  had  committed  the
offense and vacated the suspended reduction.

According to JAJM, it was clear that the applicant's initial commander
did not rescind the no-contact order at issue but merely  modified  it
to permit professional contact.  The commander clearly stated that one
on one  contact  was  prohibited.   Although  it  is  the  commander's
"understanding" that the vacation action was prompted by  an  incident
that occurred at his retirement  party,  his  opinion  was  admittedly
based  on  a  conversation  with  the  applicant  and  the  Record  of
Proceedings of Vacation  of  Suspended  Nonjudicial  Punishment.   His
opinion is of no evidentiary value and is not a basis for granting the
requested relief.

JAJM indicated that although the documentary evidence  supporting  the
charged offense is no longer available and was  not  included  in  the
applicant's submissions, it was available to the commander  initiating
the vacation action.  The applicant's commander reviewed the  evidence
and the personal presentation of  the  applicant  before  finding  the
applicant guilty of the charged offense.  The Article 15  should  only
be set aside if the applicant was  not  guilty  of  the  offense.   In
JAJM’s view, no evidence submitted by the applicant exonerates him, or
mandates the relief requested.

According to JAJM, the applicant erroneously alleges that the vacation
action was untimely  because  it  was  initiated  on  10 Dec 96.   His
reduction in grade was suspended until 10 Dec 96, "after which time it
would be remitted  without  further  action  unless  sooner  vacated."
Clearly, the automatic remission would have become effective on 11 Dec
96, not 9 Dec 96 as the applicant contends.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  10
Feb 00 for review and response.  As of this date, no response has been
received by this office (Exhibit D).

_________________________________________________________________

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.   The  evidence  of  record
indicates that the applicant  received  nonjudicial  punishment  under
Article 15  for  adultery.   The  punishment  consisted,  among  other
things, of a suspended reduction from the grade of master sergeant  to
technical sergeant.  The applicant was also  given  an  order  by  the
acting commander not to have any contact with the individual with whom
he committed adultery.  Subsequently, the successor of  the  commander
who imposed the Article 15 punishment vacated the suspended  reduction
based on the applicant’s failure to  obey  a  lawful  order  from  the
acting commander.  After reviewing the facts and circumstances of this
case, we have some doubt as to whether the suspended reduction  should
have been vacated.  In this respect, we took  note  of  the  statement
from the commander who imposed the original  punishment,  contrary  to
JAJM’s view concerning the  documentation.   The  commander  indicated
that he advised the applicant that contact could take place  with  the
individual  with  whom  he  committed  adultery   as   long   at   was
professional, and not on a one on one basis.  He further indicated  it
was his understanding that the meeting between the applicant  and  the
individual occurred during his retirement party,  in  a  public  place
where the party was held.  In the commander’s view, the meeting was in
accordance with his instructions and the  vacation  of  the  suspended
reduction was unwarranted.  In view of the foregoing, we  believe  any
doubt should be resolved in favor of the applicant.   Accordingly,  we
recommend that the records be corrected as indicated below.

_________________________________________________________________

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  vacation  of  suspended  nonjudicial  punishment  which
provided for the reduction in grade from master sergeant to  technical
sergeant under the provisions of Article 15, Uniform Code of  Military
Justice (UCMJ), imposed on 13 Dec 96, be set aside and  expunged  from
his records, and all rights, privileges, and property of which he  may
have been deprived, be restored.

      b.  He retired for length of service, effective 1 Mar 97, in the
grade of master sergeant, rather than technical sergeant.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 25 Apr 00, under the provisions of AFI 36-2603:

      Mr. Wayne R. Gracie, Panel Chair
      Ms. Dorothy P. Loeb, Member
      Ms. Patricia D. Vestal, Member

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

     Exhibit A.  DD Form 149, dated 14 Dec 99, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 10 Feb 00.
     Exhibit D.  Letter, SAF/MIBR, dated 25 Feb 00.




                                   WAYNE R. GRACIE
                                   Panel Chair










AFBCMR 00-00017




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 XXXXXX, be corrected to show that:

            a.  The vacation of suspended nonjudicial punishment which
provided for the reduction in grade from master sergeant to  technical
sergeant under the provisions of Article 15, Uniform Code of  Military
Justice (UCMJ), imposed on 13 Dec 96, be, and hereby is, set aside and
expunged from his records, and all rights, privileges, and property of
which he may have been deprived, be restored.

            b.  He retired for length of service, effective 1 Mar  97,
in the grade of master sergeant, rather than technical sergeant.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency