RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-01481
            INDEX CODE:  126.00

      APPLICANT  COUNSEL:  NONE

      SSB   HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 he  received  be  removed  from  his  records  and  all
punishment that was imposed due to the Article  15  be  set  aside  to
include a referral Enlisted Performance Report (EPR).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was not given the opportunity to present his case in person to  the
officer presiding over his case.  He feels his counsel was ineffective
because they only communicated telephonically, he should  have  had  a
personal consultation with her.  His Area Defense Council (ADC) was on
leave when he was offered the Article 15.   While  preparing  for  the
Article 15 hearing his ADC was TDY for trial.  He also  contends  that
all accusations are false and hearsay and conflict with each other and
to his knowledge the issues in his rebuttal were never investigated.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular  Air  Force  in  the
grade of staff sergeant.

The applicant was offered on 17 Jul 98 a  Article  15  for  wrongfully
using his rank and position in order to gain sexual favors, developing
an unprofessional relationship with a female trainee and also making a
false official statement.

After consulting with his counsel on 29 Jul 98 he waived his right  to
trial by court-martial and accepted the Article 15.

He submitted a written presentation and  made  a  personal  appearance
before his squadron commander.  The group commander upon reviewing all
evidence determined that the applicant committed the alleged  offenses
and imposed a reduction in  rank  from  technical  sergeant  to  staff
sergeant and forfeiture of $889.00 of pay for two months.

The applicant submitted an appeal to the appellate  authority  and  it
was denied on 20 Aug 98.  The Article 15 was filed in the  applicant’s
Unfavorable Information File (UIF).

Applicant’s EPR profile since 1997 reflects the following:

      PERIOD ENDING               EVALUATION OF POTENTIAL

          31 Mar 97                          5
          31 Mar 98                          5
       *   5 Sep 98                          1
           5 Sep 99                          4
           5 Sep 00                          5

*Referral report.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Military  Justice  Division,  AFLSA/JAJM,  reviewed  this
application and notes the applicant’s contentions of not being able to
personally  present  his  case  to  the  deciding  authority,   having
ineffective counsel and all allegations were false and conflicted with
one another and his rebuttal was never  investigated.   However,  JAJM
goes on to state that while the Manual for Court-Martials  (MCM)  does
generally provide for a personal  appearance  before  the  nonjudicial
punishment authority, it provides an  exception  “when  appearance  is
prevented  by  the  unavailability  of  the   nonjudicial   punishment
authority.”  For those cases, the member is entitled to appear  before
a person designated by the nonjudicial punishment authority  and  that
designee must prepare a written summary of the appearance, and provide
with it any written matters, to the nonjudicial  punishment  authority
to consider in  deciding  the  case.   The  applicant  was  given  the
opportunity to discuss his case  via  the  telephone  with  the  group
commander  but  declined.   The  applicant  feels  his   counsel   was
ineffective due to them not having a personal consultation.  Applicant
is entitled to legal representation but there is no  requirement  that
such representation include face-to-face  consultation.   His  defense
counsel requested and received an extension on behalf of the applicant
thus providing the applicant with additional  time  in  preparing  his
response to the Article 15.  Based  on  the  evidence  provided,  they
recommend denial of applicant's request.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed  the  Air  Force  evaluation  and  submitted  a
cassette tape stating that the allegations made against  him  are  not
true.  He states that the statements are  hearsay  and  conflict  with
each other.  He feels if the issues in his rebuttal  would  have  been
investigated it would have shown that the statements from the accusers
were in conflict with one another and false.  He also talks about  the
dates and times that he was supposedly to have talked with individuals
about the Airman in question because these dates are incorrect because
he was on leave.  He states that he did not use his position  to  gain
sexual favors from the Airman H.  He feels  his  defense  counsel  was
ineffective because she did not know how to  defend  someone  who  was
innocent.  He accepted the Article 15 only because his wife was to  be
deployed and they felt this would be the best option for their  family
than to drag out this situation.

Applicant's complete response is 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.    Sufficient relevant evidence has been presented  to  demonstrate
the  existence  of  probable  error  or  injustice.  After  thoroughly
reviewing the evidence  of  record,  the  majority  of  the  Board  is
persuaded that the applicant is a victim of a clear injustice and that
the Article 15 and ensuing EPR should be  declared  void  and  removed
from his record.  In coming to this  conclusion,  the  majority  notes
that the airman in question first stated that she  and  the  applicant
did not have an unprofessional  relationship;  however,  upon  further
questioning by the  investigating  officer,  she  changed  her  story.
Therefore,  the  majority  is  persuaded  that  there  is  some  doubt
regarding the veracity of the airman’s statement.  Further, it appears
that the applicant’s legal counsel was not easily  accessible  to  him
nor did she  aggressively  aid  him  during  the  preparation  of  his
presentation to the deciding official.  Apparently  the  counsel  only
communicated a few times telephonically with the applicant during  the
preparation period due to her leave and trial schedule.  Although  the
applicant was apparently provided due process  as  prescribed  by  the
governing regulation, it appears to the majority that he  should  have
had been afforded an opportunity to personally present his case to the
deciding official.  Although geographically separated, it  only  seems
fair, given the years of service that the applicant has,  that  he  be
given this opportunity.  The Board is persuaded that the  command  and
the legal system simply did not make time for the applicant.  In  view
of the totality of  the  circumstances,  the  majority  of  the  Board
recommends that the Article 15 and the contested EPR be  removed  from
his records and he be provided supplemental promotion consideration.

_________________________________________________________________

THE BOARD DETERMINES THAT:

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

      a.  The Article 15, Uniform Code of Military Justice,  initiated
on 17 Jul 98 and imposed on 10 Aug 98, 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 1 Apr 98 through 5 Sep 98, be  declared  void  and  removed
from his records.

      It  is  further  recommended  that  the  applicant  be  provided
supplemental consideration  for  promotion  to  the  grade  if  master
sergeant for all appropriate cycles beginning with cycle 99E7.

      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 qualification 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 applicant was promoted  to
the higher grade on the date of rank established by  the  supplemental
promotion and that applicant 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 6 Dec 00, under the provisions of AFI 36-2603.

                       Mr. Teddy L. Houston, Panel Chair
                       Mr. Laurence M. Groner, Member
                       Ms. Diana Arnold, Member

By a majority vote,  the  Board  voted  to  correct  the  records,  as
recommended.  Mr. Groner voted to deny applicant’s  request  but  does
not wish to submit  a  minority  report.   The  following  documentary
evidence was considered:

      Exhibit A. DD Form 149, dated 23 May 00, w/atch.
      Exhibit B. Available Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 1 Sep 00.
      Exhibit D. Letter, SAF/MIBR, dated 22 Sep 00.
      Exhibit E. Applicant’s Response, dated 19 Oct 00.




                             TEDDY L. HOUSTON
                             Panel Chair





AFBCMR 00-01481
INDEX CODE:  126.00


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered  the  recommendation  of  the  Air
Force Board for Correction for 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, SSN, be corrected to show that:

            a.  The Article 15,  Uniform  Code  of  Military  Justice,
initiated on 17 Jul 98 and imposed on 10 Aug 98, 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 1 Apr 98 through 5 Sep 98, be, and hereby is,  declared
void and removed from his records.

       It  is  further  directed  that  the  applicant   be   provided
supplemental consideration  for  promotion  to  the  grade  if  master
sergeant for all appropriate cycles beginning with cycle 99E7.

      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 qualification 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 applicant was promoted  to
the higher grade on the date of rank established by  the  supplemental
promotion and that applicant is entitled to all pay,  allowances,  and
benefits of such grade as of that date.




                                             JOE G. LINEBERGER
                                             Director
                                             Air Force Review Boards
Agency