RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-00291

                 COUNSEL:  GARY R. MYERS

                 HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The punishment imposed upon him under Article 15, Uniform Code  of
Military Justice (UCMJ), dated  4 August 1999, be  expunged  from  his
Officers’ HQ USAF Selection Record  and  Officers’  Command  Selection
Board.

2.  The removal of his promotion to the grade of lieutenant colonel be
expunged and he be promoted to the grade of lieutenant colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He received an Article 15, UCMJ in a circumstance where the underlying
facts did not give rise to a violation of Article 121, UCMJ,  larceny.
Accordingly there was as a matter of law no violation of  Article  121
and the facts adduced were insufficient to  support  a  finding  by  a
preponderance of evidence  that  Article  121  was  violated.   Either
circumstance supports the removal of the Article  15,  UCMJ  from  his
record.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving on extended active duty in the grade of
Major.

On 19 July 1999, applicant was notified of his commander's  intent  to
impose nonjudicial punishment upon him for the  violation  of  Article
121, UCMJ, larceny.

On 22 July 1999, after consulting with counsel, applicant  waived  his
right to  a  trial  by  court-martial,  did  not  request  a  personal
appearance and submitted a written presentation.




On 4 August 1999, he was found guilty by his commander who imposed the
following punishment of forfeiture of $1,500 pay  per  month  for  two
months and a reprimand.

Applicant did not appeal the punishment.  The Article 15 was filed  in
his Unfavorable Information File (UIF).

On 23 August 1999, applicant was notified by his commander that he was
recommending his (applicant) removal from the promotion list.

On  29  October  1999,  the  Vice  Commander,  Air  Mobility   Command
recommended that applicant’s name be removed from  the  Calendar  Year
1999A Central Lieutenant Colonel Promotion List.

On 12 January 2000, applicant’s name was removed from the promotion by
order of the Secretary of the Air Force.

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AIR FORCE EVALUATION:

The Staff Judge  Advocate  (AFMPC/JA)  reviewed  the  application  and
recommended no relief be granted.  The applicant fails to mention  the
“rule  against  perpetuities”  as  legal  precedent   supporting   his
position, the law he does rely on, as controlling is equally specious.
 While the Uniform Commercial Code (UCC) does  regulate  the  sale  of
goods, it does not give a purchaser of retail merchandise the right of
self-help when the seller refuses to  refund  the  purchase  price  of
merchandise without a receipt.   Sellers  are  authorized  to  specify
terms and conditions governing refunds or exchanges of merchandise, to
include requiring a receipt.

Although the applicant now claims he is not  guilty  of  any  criminal
wrongdoing, he repeatedly admitted his guilt following  the  incident.
His current characterization of his conduct  as  "self-help”  and  his
claim that his conduct is supported in law  is  neither  fruitful  nor
logical.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed  the  advisory  opinion  and  provides  his  complete
comments at which are attached at Exhibit E.




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, the majority  of
the Board is not persuaded that the Article 15 should be removed  from
his records or that his promotion be reinstated.  The  Board  majority
has not been convinced by his submission that his commander abused his
discretionary authority when he imposed  the  nonjudicial  punishment,
and since we find  no  abuse  of  authority,  the  majority  finds  no
compelling reason to overturn the commander’s decision.  Further,  the
action to remove applicant from the promotion list was appropriate  in
view of his misconduct.  It does not appear that he  demonstrated  the
professional judgement one would expect from an officer  about  to  be
promoted to the grade of lieutenant colonel.  Therefore  the  majority
of the Board agrees with the  recommendation  of  the  Air  Force  and
adopts the rationale expressed as the basis for  their  decision  that
the applicant has failed to sustain  his  burden  of  having  suffered
either an error or an injustice.  In view of the foregoing and in  the
absence of evidence to the contrary, the majority finds no  compelling
basis to recommend granting the relief sought in this application.

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.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 13 July 2000, under the  provisions  of  AFI  36-
2603:

                 Mr. Vaughn E. Schlunz, Panel Chair
                 Mr. Charles E. Williams, Jr., Member
                 Ms. Dorothy P. Loeb, Member



By a majority vote, the Board recommended denial of  the  application.
Mr. Vaughn Schlunz voted to  correct  and  reinstate  the  applicant’s
promotion line number to the grade of  lieutenant  colonel  only,  but
does  not  desire  to  submit  a  Minority  Report.    The   following
documentary evidence was considered:

      Exhibit A. DD Form 149, dated 25 January 2000.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 20 March 2000.
      Exhibit D. Letter, SAF/MIBR, dated 7 April 2000.
      Exhibit E. Counsel's response, dated 24 May 2000.




      VAUGHN E. SCHLUNZ
      Panel Chair

MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                       FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:    AFBCMR Application of APPLICANT

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency