RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-01821

            COUNSEL:  DAVID C. CORY

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1. The Article 15 imposed on 8 July 1999 be removed from his records.

2. His promotion to the grade of technical sergeant (E-6)  be  retroactively
   reinstated.

3. He be considered for promotion as if the Article 15 had never occurred.

4. He receive all back pay and other benefits.

5. His approved retraining into the Intelligence career field  be  restored,
   or at his election, he be returned to  his  prior  career  field  in  the
   Military Postal career field or another career field of  his  choice  for
   which he is eligible.

6. He be provided another opportunity to re-file his claim for  compensation
   from the Air Force for his personal property which was  stolen  while  he
   was stationed in Panama.

7. He receive any and all other appropriate relief under  the  circumstances
   of his case.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not commit the offense for which he received the Article 15  and  his
Article 31 rights were violated.

The applicant’s counsel states that Security Forces  investigators  and  the
legal office did a shoddy and incomplete  investigation  of  the  allegation
against the applicant.  In addition, they violated the  applicant’s  Article
31 rights and failed to interview various witnesses who could have  provided
exculpatory evidence.  Furthermore, the legal office had  a  major  conflict
of interest.  Not only did they initially  conduct  the  investigation,  but
later advised the Security Forces investigators and served as legal  advisor
to the various commanders who imposed punishment,  denied  the  appeal,  and
then denied the set-aside action.

The applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

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

The applicant was  tentatively  selected  for  promotion  to  the  grade  of
technical sergeant during cycle 99E6.

On 17 June  1999,  the  commander  initiated  nonjudicial  punishment  under
Article 15 of the Uniform Code of Military  Justice  (UCMJ),  for  filing  a
false claim against the government.   After  consulting  with  counsel,  the
applicant accepted nonjudicial punishment proceedings, and waived his  right
to trial by court-martial.   After  considering  the  applicant’s  oral  and
written punishment, on 8 July 1999, the commander determined  the  applicant
committed the  alleged  offense  and  imposed  punishment  consisting  of  a
suspended one  stripe  reduction  to  the  grade  of  senior  airman  and  a
reprimand.  The applicant  appealed  the  punishment  and  his  request  was
denied on 18 July 1999. On 21 July 1999, the Article 15  was  found  legally
sufficient.  As a result of the  Article  15,  the  applicant  was  rendered
ineligible for promotion and his  approved  voluntary  retraining  into  the
intelligence career field.

On 27 August 1999, the applicant submitted further documentation  concerning
the incident and requested  the  Article  15  be  set  aside;  however,  his
request was denied.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The Chief, Military Justice Division, AFLSA/JAJM, reviewed  the  application
and states that the applicant maintains that he did  not  knowingly  file  a
false  claim,  but  was  misled  by  investigators  and  the  legal   office
personnel.  However,  these  contentions  were  fully  and  fairly  explored
during the Article 15 proceedings and resolved against  him.   The  standard
of proof required for Article 15 action is lower than  the  proof  beyond  a
reasonable doubt standard that is required in  a  court-martial  proceeding.
Military  Rules  of  Evidence  do  not  apply  at   nonjudicial   punishment
proceedings.  The applicant could have litigated these issues  at  a  court-
martial and chose to accept the  lesser  forum  of  nonjudicial  punishment,
thereby effectively waiving these issues.  From the initial theft report  to
investigators and legal  office  personnel,  the  applicant  overstated  the
quality/quantity of the items  and  their  value.   He  was  asked  to  make
numerous statements over a period of a month, which provided him ample  time
and warning to verify the information and  correct  any  innocent  mistakes.
Prior to this incident, the applicant had filed other claims with the  legal
office and understood the claim process.  The  commander  was  in  the  best
position  to  evaluate  the  evidence,  determine  the  credibility  of  the
witnesses and resolve the significance of the disputed facts.  There  is  no
evidence  the  commander  abused  his  discretion  when  he  determined  the
applicant committed the offense  charged.   Therefore,  they  recommend  the
requested relief be denied.

A complete copy of the evaluation is at Exhibit C.

The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed  the  application
and defers to AFLSA/JAJM’s recommendation.  However, should the  Board  void
the Article 15, it could reinstate his promotion to technical sergeant  with
an effective date and date of rank of 1 July 2000.

A complete copy of the evaluation is at Exhibit D.

The Chief, Skills Management Branch, AFPC/DPPAE,  reviewed  the  application
and states that cancellation of  the  applicant’s  approved  retraining  was
appropriate since he no  longer  met  the  required  quality  standards  for
retraining.  However, should the Board void the Article 15,  his  retraining
should be reinstated provided he still meets the  eligibility  criteria  for
entry in the intelligence career field.

A complete copy of the evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s  counsel  reviewed  the  evaluations  and  states  that  the
Military Rules of Evidence, other than with respect to  privileges,  do  not
apply at nonjudicial punishment proceedings.  In the applicant’s  case,  his
privilege against self-incrimination was violated by the legal office  while
it was investigating  the  allegations  against  him.   Evidence  gained  in
violation of his privilege was improperly used against him by his  commander
when his commander imposed nonjudicial punishment.  Furthermore, a  decision
by a service member to accept nonjudicial punishment proceedings  is  simply
a choice of forum, rather than a waiver of rights  or  admission  of  guilt.
The applicant did not, either by law or his action, ever  waive  the  issues
he raised in his application to the Board.  He raised them in  his  response
to his commander, but apparently his commander received the  same  incorrect
legal advise which AFLSA/JAJM has provided to the Board.   Since  the  Board
has the authority to overturn the commander’s determinations, the  Board  is
not bound by the commander’s findings regarding the allegations against  the
applicant.  AFLSA/JAJM has failed  to  accurately  describe  the  burden  of
proof on a commander  who  is  considering  whether  to  impose  nonjudicial
punishment.  While no specific standard of proof applies  to  any  phase  of
Article 15 proceedings, the commander  should  recognize  that  the  alleged
offender is entitled to demand trial by court-martial, in which  case  proof
beyond  a  reasonable  doubt  by  competent  evidence  is  prerequisite   to
conviction and punishment.  Therefore, the commander must  consider  whether
such proof is available before initiating action under Article 15.  If  such
proof is lacking, action under Article 15 is usually not  warranted.   Since
the opinions rendered by AFPC/DPPAE and AFPC/DPPPWB defer to  the  erroneous
AFLSA/JAJM  opinion,  their  recommendations  against  granting  the  relief
sought should be ignored.  The applicant has met his burden of proof  before
the Board to show that an injustice was done.  His rights were violated  and
the evidence provided by the government does  not  prove  he  committed  the
allegation for which he was punished.

Counsel’s complete response is attached at Exhibit G.

The applicant reviewed the evaluations and states that although some of  the
Military Rules of Evidence may not apply to his situation, Article  31  does
apply.  It does not matter if it is a consideration for  an  Article  15,  a
court-martial hearing, or a member accused of stealing a candy bar from  the
commissary.  Article 31 clearly states that, “No  person...may  interrogate,
or request any statement from...a person suspected and  that  any  statement
made by him may be used  as  evidence  against  him...”   The  legal  office
clearly violated this when they started their relentless pursuit  to  gather
evidence and try to find him guilty of  committing  fraud.   He  made  every
attempt to correct mistakes on the initial report to the  investigators  and
legal office personnel.  All the changes that he submitted were never to  be
used to support his claim.  Instead, they were used by the legal  office  to
conduct an illegal investigation against  him  and  to  justify  having  him
interrogated for nine hours  by  the  Security  Forces  Investigators.   The
commander was biased about his whole case.   The  commander  made  it  clear
that he had spoken with the Security Police and  the  legal  office  several
times, but never once contacted any of his witnesses.  Never  once  did  the
commander tell him why, or what, his decision was based upon.

Applicant’s complete response is attached 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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.  We find no evidence of  error  in
this  case  and  after  thoroughly  reviewing  the  documentation  applicant
submitted in support of his appeal, we do not believe he has  suffered  from
an injustice.  Evidence has not  been  presented  which  would  lead  us  to
believe that the  nonjudicial  punishment,  imposed  on  8  July  1999,  was
improper.  In cases of this nature, we  are  not  inclined  to  disturb  the
judgments of commanding  officers  absent  a  strong  showing  of  abuse  of
discretionary authority.  We  have  no  such  showing  here.   The  evidence
indicates that, during  the  processing  of  this  Article  15  action,  the
applicant was offered  every  right  to  which  he  was  entitled.   He  was
represented by counsel, waived his right to demand trial  by  court-martial,
and  submitted  oral  and  written  matters  for  review  by  the   imposing
commander.   After  considering  the  matters  he  raised,   the   commander
determined that he had committed “one or more of the offenses  alleged”  and
imposed punishment. The applicant appealed the punishment  and  his  request
was denied.  He submitted further documentation concerning the incident  and
requested the Article 15 be set aside; however, his request was denied.   As
a result of the Article 15, he was rendered  ineligible  for  promotion  and
his approved voluntary retraining into the  intelligence  career  field.  We
find no evidence showing  that  the  imposing  commander  or  the  reviewing
authority  abused  their  discretionary  authority,  that  the   applicant’s
substantial rights were violated during the processing  of  the  Article  15
punishment, or that the punishment exceeded the maximum  authorized  by  the
UCMJ.  Therefore, based on the available evidence  of  record,  we  find  no
basis upon which to favorably consider 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.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable material error or injustice; that the  application
was denied without a personal appearance;  and  that  the  application  will
only be reconsidered  upon  the  submission  of  newly  discovered  relevant
evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 20 March 2001, under the provisions of AFI 36-2603:

                       Mr. Richard A. Peterson, Panel Chair
                       Mr. Roscoe Hinton, Jr., Member
                       Mr. Thomas Topolski, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, undated, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 4 Dec 00, w/atchs.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 20 Dec 00, w/atch.
      Exhibit E.  Letter, AFPC/DPPAE, dated 31 Jan 01.
      Exhibit F.  Letter, SAF/MIBR, dated 16 Feb 01.
      Exhibit G.  Letter, Counsel, dated 27 Feb 01.
      Exhibit H.  Letter, Applicant, dated 5 Mar 01.




                                   RICHARD A. PETERSON
                                   Panel Chair