RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03425
            INDEX CODE: 126.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Article 15, dated 2 June 1997, be set aside and  removed  from
his records.

2.  He be reimbursed $300.00 for the fine he received.

3.  His Good Conduct Medal be restored.

4.  The records held by Family  Advocacy  regarding  to  his  case  be
destroyed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 action should be removed from his  records  because  he
did not commit the offense.  He believes the Article 15 was  given  by
his prior commander without benefit of all the facts  and  information
regarding his situation.  He asserts that he accidentally  struck  his
wife while engaged in  the  act  of  self-defense  in  the  course  of
removing her from his apartment.  He states a finding of  abuse  which
was the basis for the Article 15 came from personnel who did not  meet
the qualification standards for their duty  position,  IAW  applicable
AFIs.  He states that the family advocacy counselor  who  handled  his
case did not have the proper credentials  or  supervision  to  provide
counseling.  He also believes  his  prior  commander  was  erroneously
given a wrong definition of the term assault and the term self-defense
as it applied in his case according to both military  courts  and  the
basic principle of law in the state of Delaware.

In support of the appeal, applicant submits a  personal  statement,  a
Family Advocacy Intake Form, two Family Advocacy  Medical  Records,  a
statement  from  a  Psychological  Assistant,  a  copy  of  436  AW/IG
findings, copy of the ADC brief, and a statement from the commander of
the    Security Forces Squadron.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 13 May 1997, the appliant was notified of his commander’s intent to
impose nonjudicial punishment upon him for:  On       13  April  1997,
unlawfully striking his wife with his fist on her right breast and rib
area.

On 23 May 1997, after consulting with counsel,  applicant  waived  his
right to  a  trial  by  court-martial,  did  not  request  a  personal
appearance, but did submit a written presentation.

On 2 June 1997, the commander determined the applicant  had  committed
one  or  more  of  the  offenses  cited  and  imposed  the   following
punishment:  Forfeiture of $1149.00 pay per month for two months,  but
that portion of the punishment in excess of forfeitures of $150.00  of
his pay per month for two months suspended until 1 December 1997.   He
also received a reprimand which stated:  “You are  hereby  reprimanded
for assault on your spouse.   Your  misconduct  is  reprehensible  and
inexcusable.  A repetition of this totally unacceptable behavior  will
result in stronger action against  you.   Violation  of  any  punitive
article of the UCMJ or  failure  to  enroll  in,  participate  in  and
successfully  complete   the   Family   Advocacy   Domestic   Conflict
Containment Program will be cause for the vacation of  your  suspended
punishment”.

On 2 June 1997, applicant appealed the  punishment;  however,  on   27
June 1997, he withdrew his appeal.

On 1 July 1997, the applicant was notified of his  commander’s  intent
to file the nonjudicial punishment he received on 2 June 1997  in  his
NCO  Selection  Record.   Applicant  was  given  three  duty  days  to
acknowledge and submit a response.

As of 7 July 1997, applicant refused to  acknowledge  receipt  of  the
letter or submit a response until his  Area  Defense  Commander  (ADC)
advised him.

On 9 July 1997, the ADC requested additional time to prepare a package
for the Letter of Intent to File in Selection  Record  and  Set  Aside
Action.  A delay was granted until COB, 18  July  1997.   However,  no
package was received by the  commander  until  22  July  1997.   After
careful review of the package requesting the Article 15, dated 11 July
1997, not be placed in the applicant’s Selection Record, the commander
recommended that the Article 15 action  be  placed  in  his  Selection
Record.  The commander stated that the applicant’s  package  would  be
forwarded to HQ   AF/CC for final decision on filing  this  action  in
his Selection Record.  He further stated that the applicant’s  request
for a set-aside of the Article 15, case was inappropriate.  Therefore,
in a letter dated 28 July 1997, the applicant’s set-aside request  was
denied.

On 29 July 1997, the applicant acknowledged receipt of the letter.

On 1  August  1997,  the  commander  determined  that  the  record  of
nonjudicial  punishment  under  Article  15,  UCMCJ,  imposed  on  the
applicant on 2 June 1997 would be filed in the  Senior  NCO  Selection
Record.

Records indicate that  the  record  of  nonjudicial  punishment  under
Article 15, UCMJ, was filed in the AF NCO C&M File on 6 February 1998.

The applicant retired from the Air Force on 31 July 1999, in the grade
of master sergeant.  He served 22  years  and  25  days  total  active
service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, AFLSA/JAJM, reviewed  the
application and states they first note that, with the advice of  legal
counsel, the applicant elected to have his commander  adjudicate  this
matter.  The applicant could have turned down the  Article  15  action
and required the Government to prove the charge  beyond  a  reasonable
doubt at a court-martial.  Instead, the applicant presented  his  case
to his commander who, after reviewing the  evidence  and  the  matters
submitted  on  the  applicant’s  behalf,  exercised   the   discretion
entrusted to him as commander and determined that  the  applicant  was
guilty of the charge.  The commander also imposed  the  punishment  he
believed was appropriate for the crime.

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

The Chief Medical Consultant, AFBCMR,  reviewed  the  application  and
states that as the legal review cited, the applicant has not  provided
sufficient evidence that  his  actions  at  the  time  of  his  wife’s
injuries were in self defense and unintentionally inflicted.   On  the
contrary, the situation in which the injuries were incurred, i.e., the
applicant physically trying to remove his  wife  from  his  apartment,
seemingly does not  meet  the  criterion  of  self  defense  to  avoid
personal injury.  Additionally, the nature of  the  injuries  is  more
than might be expected in the case of an unintentional blow occasioned
by his attempt to  dislodge  his  wife’s  hands  from  his  collar  as
reported.

Regardless of the social worker’s privileging situation at  the  Dover
Clinic (a situation that must  be  left  for  the  Air  Force  Medical
Service to resolve), her years of training and  experience  cannot  be
discounted as providing invalid  clinical  information.   Privileging,
i.e., permitting an individual to practice in a medical facility,  and
credentials are, after all, two different matters, the  latter  simply
being a compilation of degrees, documents,  and  perhaps  licenses  or
other evidence of  certification  that  an  individual  has  completed
requisite  courses  of  study  to  qualify  as  a  provider  in   that
discipline.

He further notes that evidence is substantial that the applicant  used
undue force in trying to remove his wife from his  apartment  when  no
physical threat was readily apparent.  Documentation of this event  by
a qualified, albeit unlicensed, social worker is valid  by  virtue  of
her  training  and  experience,  and  no  reason  exists  to   warrant
expungment  of  these  records  from  file.   Therefore,  the  medical
consultant recommends denial of applicant’s request.

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

The  Superintendent,  Awards  and  Decorations  Section,   AFPC/DPPPR,
reviewed the application and states that the applicant is not eligible
for the Air Force Good Conduct Medal because of  less  than  exemplary
conduct.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation, with  attachment,  is  attached  at
Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and states that  he  feels
it is very important to note that Delaware is a zero  tolerance  state
with regard to domestic  violence.   He  states  that  this  case  was
referred to the Attorney Generals Office and no charges were  pressed.
The questions of why did his wife return  to  his  apartment;  proceed
with the bizarre behavior of pulling leaves off of his plant; continue
pulling leaves after he asked her to stop;  remain  in  his  apartment
after he asked and then told her to leave; and how  did  she  rip  his
shirt if she didn’t have her hands on the collar, remains  unanswered.
He wishes he could produce a video for all to see on the events of  13
April 1997, but he can’t.  He  feels  the  answers  to  the  questions
raised above  adds  credit  to  the  events  as  he  has  consistently
explained them.

He states the improperly  credentialed  counselor  did  take  official
action on the Article 15.  He further states that he  had  never  been
informed that an Article 15 conviction did not require  a  finding  of
guilt beyond a reasonable doubt.  If he had known that, he would  have
taken other actions.

In summary, he states that in 22 years of military life this has truly
been one of the most frustrating events of his  life.   He  hopes  the
information and views he has provided here help show  that  though  he
regrets the events of 13 April 1997, he never assaulted his  estranged
wife.  Both mental health personnel and his squadron commanders are on
record with that opinion.

Applicant's complete response is attached at Exhibit G.

_________________________________________________________________

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 took notice  of  the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
and adopt their rationale as the basis for  the  conclusion  that  the
applicant  has  not  been  the  victim  of  an  error  or   injustice.
Therefore, in the absence of evidence to  the  contrary,  we  find  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.

_________________________________________________________________

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 4 January 2000, under the provisions of  AFI  36-
2603:

                 Mr. Douglas J. Heady, Panel Chair
                 Mr. Clarence D. Long III, Member
                 Mr. Edward C. Koenig III, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 7 Dec 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 7 Apr 99.
      Exhibit D. Letter, BCMR Medical Consultant, dated 6 May 99.
      Exhibit E. Letter, AFPC/DPPPR, dated 26 May 99.
      Exhibit F. Letter, AFBCMR, dated 14 Jun 99.
      Exhibit G. Applicant’s Response, dated 8 Jul 99.




                             DOUGLAS J. HEADY
                             Panel Chair