RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00143

            COUNSEL:  AMERICAN LEGION

            HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

1.    The Article 15, imposed on 21 December 1989, be set aside.

2.    The Company Grade Officer Performance Report, AF Form  707B,  rendered
for the period 27 November 1988 through 23 May 1989,  be  removed  from  his
records.

3.    His discharge be upgraded to honorable.


APPLICANT CONTENDS THAT:

The Article 15 is invalid because it was imposed after  the  2-year  statute
of limitations for such; the contested OPR is also invalid  because  he  did
not work for the rater for the required 120-days  of  supervision;  and  the
discharge should be upgraded due to the inconsistencies under which  it  was
given.

The applicant states the Virginia Army National Guard has indicated that  if
his discharge is upgraded they would offer him a guard position.

In support of the appeal, applicant submits  a  statement  from  his  former
commander indicating that he was assigned from November 1988 to March  1989;
a statement from his new commander stating that  on  1 March  1989,  he  was
moved from to the Supply Squadron; and a leave statement  indicating  during
the period of the contested OPR, he in a leave status for 39 days.

The 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.

AIR FORCE EVALUATIONS:

The Deputy  Chief,  Military  Justice  Division,  AFLSA/JAJM,  reviewed  the
application and states that Article  43(b)(2),  of  the  Uniformed  Code  of
Military Justice (UCMJ), provides that a person charged with an  offense  is
not liable to be punished  under  Article  15,  UCMJ,  if  the  offense  was
committed more than two years  before  the  imposition  of  the  punishment.
Inasmuch as the punishment was imposed on  21  December  1989,  all  of  the
offenses charged against the applicant  exceeded  the  two-year  limitation.
Since  the  applicant’s  offer  to  accept  nonjudicial  punishment  and   a
discharge in lieu of court-martial was accepted,  and  his  resignation  was
submitted and approved, all of the  terms  of  the  deal  proffered  by  the
applicant and his counsel  were  complied  with.   This  would,  of  course,
include the applicant’s waiver  of  the  two-year  statute  of  limitations.
Since there had been a prior discussion with defense counsel  regarding  the
statute of limitations, it would be safe to assume the applicant  was  aware
of the statute when he accepted nonjudicial  punishment  proceedings.   Such
acceptance could, therefore,  be  construed  as  a  knowing  waiver  of  the
statute of  limitations.   Therefore,  they  recommend  the  application  be
denied.

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

The Chief, Appeals and SSB Branch, AFPC/DPPPA, reviewed the application  and
states that applicant  was  successful  in  getting  the  Evaluation  Report
Appeal Board (ERAB) to change the number  of  days  of  supervision  on  the
contested OPR to 148 days; however, the ERAB was not  convinced  the  report
should be voided.  The applicant has not substantiated the rater’s  comments
regarding his refusal to take a urinalysis  test  and  the  other  areas  of
substandard performance were inaccurate as written.  Instead, the  applicant
provides a supporting statement from the former XXX commander  stating  that
he questioned the applicant’s rater, “ if he authorized  the  “no-show”  for
the urinalysis.  [The rater] was emphatic in his negative answer,  expressed
dismay and disapproval that [applicant] used his  name  for  such  purposes,
and instructed me to find [applicant] and order his participation.”

AFPC/DPPPA states that Air Force policy is  that  an  evaluation  report  is
accurate as written when it becomes a  matter  of  record.   To  effectively
challenge an OPR, it is necessary to  hear  from  all  the  members  of  the
rating    chain    -    not    only    for    support,    but    also    for
clarification/explanation.   The  applicant  has  failed  to   provide   any
information/support from the rating chain on the contested OPR.   Therefore,
they recommend denial of his request to void the contested OPR.

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

The Separations Branch, AFPC/DPPRS, reviewed  this  application  and  states
there  are  no  errors  or  irregularities  causing  an  injustice  to   the
applicant.  The  applicant’s  records  indicate  his  military  service  was
reviewed and appropriate action was taken.  The applicant did  not  identify
any  specific  errors  in  the  discharge  processing  nor   provide   facts
warranting a change in his narrative reason for separation.

A complete copy of the Air Force evaluation is attached at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel reviewed the Air Force evaluations  and  states  the
applicant’s submission and the official military records, amply advance  the
applicant’s  contentions  and  substantially  reflect  the  probative  facts
needed for equitable review.

Counsel’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 not timely filed; however, it is in  the  interest
of justice to excuse the failure to timely file.

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 opinions and recommendations of the Air  Force  and  adopt
their rationale as the basis for our 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 31 May 2000, under the provisions of AFI 36-2603:

                  Mr. David W. Mulgrew, Panel Chair
                  Mr. Grover L. Dunn, Member
                  Mr. William E. Edwards, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 12 Nov 98, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 1 Apr 99, w/atchs.
      Exhibit D.  Letter, AFPC/DPPPA, dated 11 May 99.
      Exhibit E.  Letter, AFPC/DPPRS, dated 22 Jul 99.
      Exhibit F.  Letter, SAF/MIBR, dated 16 Aug 99.
      Exhibit G.  Letter, Counsel, dated 26 Aug 99.




             DAVID W. MULGREW
                                  Panel Chair