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AF | BCMR | CY2000 | 9803230
Original file (9803230.doc) Auto-classification: Approved

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-03230
            INDEX CODE: 126.00,128.00,131.00


      XXXXXXXXXXXXXXXXXXX    COUNSEL: JOSEPH W. KASTL


      XXXXXXXXXXX      HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The nonjudicial punishment pursuant to the Article 15 he received  on  2
October 1995 be set aside.

2.  He be reinstated in the Air Force with back pay.

3.  He be promoted to the grade of master sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel for the applicant has provided a 14-page brief  in  support  of  the
application.  Counsel states  that  the  applicant  received  the  contested
Article 15 because of a vindictive  and  jealous  supervisor  and  that  the
Article 15 resulted from a clear-cut abuse of power.   Counsel  also  states
that the applicant was subject  to  his  supervisor's  vicious  overreaction
when  a  personality  conflict  developed  between  the  applicant  and  his
supervisor.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant's military records, are contained in the letters prepared  by  the
appropriate offices of the Air Force.  Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.

A copy of a Summary Report of Inquiry prepared  by  HQ  PACAF/JAC  regarding
applicant’s allegations that Senior Master Sergeant K  is  alleged  to  have
caused applicant to receive punishment in forms of a letter of  admonishment
(LOA) and an Article 15 is attached at Exhibit G.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Chief,  Military  Justice  Division,  Air  Force  Legal  Services
Agency, AFLSA/JAJM, reviewed this application and states that the  applicant
has offered no substantive support for any of his allegations, reprisal,  or
otherwise.  The applicant's file indicates that he received  all  procedural
and substantive rights due him.  Additionally, the evidence  was  sufficient
to support the imposition of an Article  15  punishment.   Consequently,  no
clear injustice exists that would necessitate setting aside the Article 15.

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

The  Chief,  Inquiries/AFBCMR  Section,  AFPC/DPPPWB,  also  reviewed   this
application and states that present Air Force policy does not allow  for  an
automatic promotion as the applicant  is  requesting.   They  defer  to  the
recommendation of AFLSA/JAJM.  However,  should  the  Board  set  aside  the
reduction, his effective date and date of rank to technical sergeant  was  1
September 1994.  In addition, since the applicant never served in the  grade
of master sergeant there  is  no  basis  or  valid  reason  to  authorize  a
promotion to this grade.

A complete copy of their evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluations and provided a response,  which
is attached at Exhibit F.

On several occasions  applicant  requested  additional  time  to  prepare  a
further response to the evaluations.

_________________________________________________________________

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  warranting  the  Article  15  he
received on 2 October 1995, be set aside.  After reviewing the  evidence  of
record, the Board is  not  persuaded  that  the  contested  Article  15  was
received either because of  a  vindictive  and  jealous  supervisor  or  for
reprisal of  submitting  an  IG  complaint.   In  fact,  we  note  that  the
contested Article 15 was issued 18 days before he filed  the  IG  complaint.
While  applicant’s  contentions  are  duly  noted,  we  do  not  find  these
uncorroborated assertions, in and by themselves, sufficiently persuasive  to
override the rationale provided by the Air Force.  We therefore  agree  with
the recommendations of the Air Force and adopt the  rationale  expressed  as
the basis for our decision that the applicant  has  failed  to  sustain  his
burden that he has suffered either an error or an  injustice.   In  view  of
the above and absent  persuasive  evidence  to  the  contrary,  we  find  no
compelling basis to recommend granting relief to void the Article 15.

4. Notwithstanding the above, we do believe that  the  applicant  should  be
permitted to retire in the grade of technical sergeant.  While  we  conclude
that the Article 15 and the punishment issued  against  the  applicant  were
consistent with the prevailing regulation, we believe that the  vacation  of
the suspended reduction was unduly harsh.  In this  respect,  we  note  that
the  applicant  was  within  one  month  of  completion  of  the   suspended
reduction, and that the reason for  the  vacation  action  was  due  to  his
failure to attend a scheduled anger management class.  The  reason  for  his
failing to attend the class was due to his participation in a squadron self-
help project.  In view of  the  circumstances  surrounding  his  failure  to
attend the scheduled class and in view of the fact that  the  applicant  was
within one month from having served  the  suspended  reduction,  we  believe
that some form of relief  is  warranted.   Therefore,  we  recommend  he  be
promoted to the grade of technical sergeant effective 31  October  1997  and
retired in that grade effective l November 1997.

5.    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 issues  involved.   Therefore,  the  request
for a hearing is not favorably considered.


_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

        a.  He was promoted to the grade  to  technical  sergeant  effective
and with a date of rank of 31 October 1997.

         b.  On 1 November 1997, he was retired for  length  of  service  in
the grade of technical sergeant.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 15 February 2000, under the provisions of AFI 36-2603:

            Terry A. Yonkers, Panel Chair
            Mr. William H. Anderson, Member
            Mr. Edward H. Parker, Member

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

   Exhibit A.  DD Form 149, dated 1 Oct 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 17 Mar 99, w/atchs.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 2 Apr 99.
   Exhibit E.  Letter, SAF/MIBR, dated 28 Apr 99.
   Exhibit F.  Letter, Applicant, undated.
   Exhibit G.  Inspector General Report




                 TERRY A. YONKERS
                 Panel Chair


AFBCMR 98-03230





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 XXXXXXXXX. XXXXXXXX XXXXXXXXXXX, be corrected to show:

             a.  He was promoted to the grade to technical sergeant
effective and with a date of rank of 31 October 1997.

                  b.  On 1 November 1997,  he  was  retired  for  length  of
service in the grade of technical sergeant.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency

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