RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00665
            INDEX CODE:  A60.00, 110.03,
                                              126.04, 134.

            COUNSEL:  DOUGLAS L. NICHOLSON

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

All references in his record to a conviction for assault  in  civilian
court in Roy City, Utah, be removed.

All references in his record to a guilty plea for assault in  civilian
court in Roy City, Utah, be removed.

The nonjudicial punishment  under  Article  15  he  received  for  the
unlawful striking of a child, and all references  to  it,  be  removed
from his record.

The punishment imposed by the Article 15 for the unlawful striking  of
a child be vacated, and that he be retroactively restored to the  rank
of staff sergeant and granted all pay and allowances  forfeited  as  a
result of the Article 15.

His 12 Mar 97 discharge be rendered void.

He be granted constructive reinstatement with back  pay  and  benefits
for the remainder of his last term of enlistment at his restored  rank
and grade.

His records be corrected to reflect that he was discharged  on  16 Mar
97 for completion of his enlistment term.

His records be corrected to reflect a characterization of his  service
as “honorable.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Separation  Authority’s  findings  of  misconduct  related  to  an
alleged civilian assault were based on factual and legal errors.

Misconduct used to support discharge  and  characterize  discharge  as
“other than honorable” was conduct specifically prohibited  from  such
use by Department of Defense (DOD) regulations.

The separation authority’s  failure  to  verify  that  the  misconduct
allegations  supporting  the  pattern  of  misconduct  discharge  were
supported by a preponderance of the evidence violated DOD regulation.

The nonjudicial punishment under Article 15 he received  for  unlawful
striking of a child was impermissibly tainted by the  “Unruh”  matter,
and not supported by the preponderance of the evidence.

In support of his appeal, the  applicant  provided  a  counsel  brief,
extracts from his military personnel records, including the  discharge
and Article 15 documentation, court documents, extracts from the  Utah
Code of Criminal Procedure and DOD  regulation,  and  other  documents
associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 16 Jul 84 in the  grade
of airman basic.  Prior to the matter under review, the applicant  was
promoted to the grade of staff sergeant.

Applicant’s  Airman/Enlisted  Performance  Report  (APR/EPR)   profile
follows:

      PERIOD ENDING     EVALUATION

      15 Jul 85        9
      15 Apr 86        9
      15 Apr 87        9
      15 Apr 88        9
      15 Apr 89        9
      31 Mar 90        5 (EPR)
       5 Oct 90        5
       5 Oct 91        5
       5 Oct 92        5
       5 Oct 93        5
       5 Oct 94        5
       5 Oct 95        4


On 13 Feb 97, the applicant’s commander notified the applicant that he
was recommending his discharge from the Air  Force  for  discreditable
involvement with  military or civil authorities.  The reasons for this
action were:

      a.  On or about 8 Apr 95, the applicant operated a  vehicle,  at
or near Hill Air Force Base, while drunk, in violation of Article  111
of the Uniform Code of Military Justice.  For  this  conduct,  he  was
issued an  Article  15.   His  punishment  consisted  of  a  suspended
reduction to senior airman for six months, and forfeiture of $200  pay
per month for two months.

      b. On or about 16 Aug 96, at or near Hill Air  Force  Base,  the
applicant did unlawfully strike a child under the age of  16 years  on
her body with his hand, in violation of Article 128, Uniform  Code  of
Military Justice.  He received an Article 15 for this misconduct.  His
punishment was a reduction to the grade of senior airman, with  a  new
date of rank of 14 Jan 97, forfeiture of $500 pay per  month  for  two
months, suspended for six months, 30 days extra duty, and a reprimand.
 He appealed this punishment and his appeal was denied.

      c. On or about 9 Jul 95, at Roy, Utah, the  applicant  assaulted
XXXXX XXXXX by striking him in the face with his fist.  On 15 Aug  95,
in Second District Court, Roy, Utah, he entered a plea  of  guilty  to
simple assault.  The court held his plea in abeyance  for  six  months
and he was ordered to pay $150 restitution.  On 20 Feb  96,  the  case
was dismissed after he met the conditions set by the court.

Although not part  of  the  basis  for  recommending  discharge,  also
attached was a Letter of Reprimand (LOR), dated 4 Sep 91, provided  to
the applicant for an assault upon his wife, an active duty  Air  Force
member.  This Letter of Reprimand could be used in determining  if  he
should  be  discharged,  but  could  not  be  used   for   determining
characterization of his discharge.

The applicant was advised of his rights  in  the  matter  and  that  a
general  discharge  would  be  recommended.   After  consulting   with
counsel,  the  applicant  submitted  a  letter,  dated  13   Feb   97,
unconditionally  waiving  his   right   to   a   hearing   before   an
administrative discharge board.  He also waived his  right  to  submit
statements in his own behalf.

On 20 Feb 97, the  Assistant  Staff  Judge  Advocate  recommended  the
applicant’s separation with an under other than  honorable  conditions
(UOTHC) discharge, without probation and rehabilitation.

On 3 Mar 97, the discharge authority approved the discharge action and
directed that the applicant be furnished a UOTHC discharge.

On 12 Mar 97, the applicant was discharged under the provisions of AFI
36-3208 (Pattern of Misconduct) and furnished a UOTHC discharge.   The
applicant had served 12 years, 7 months, and 27 days on active duty.

On 26 Jan 98, the Air Force Discharge Review Board (AFDRB)  considered
and denied the applicant’s request for upgrade of his UOTHC  discharge
to honorable.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and concluded that the administrative relief of removal of the 16  Aug
96 record of the nonjudicial punishment  under  Article  15  from  the
applicant’s records was not warranted.  According to JAJM, there  were
no legal errors requiring  correction.   Therefore,  JAJM  recommended
denial of this portion of the requested relief.

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

The Directorate of Personnel Program Management, AFPC/DPPRS,  reviewed
this application and indicated that the applicant did not  submit  any
new evidence or identify any errors or injustices that occurred in the
discharge processing.  Additionally, the applicant provided  no  facts
warranting a change in the discharge he received or the  character  of
service  awarded  by  the  discharge  authority.   Accordingly,  DPPRS
recommended that the applicant’s records remain the same and that  his
requests be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the advisory opinions and furnished a response  which
is attached at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the Staff  Judge  Advocate,  AFPC/JA,
reviewed this application and indicated that it is their opinion  that
the applicant has failed to present relevant evidence of any  material
error or injustice warranting relief.  In JA’s view,  the  application
should be denied.

A complete copy of the JA evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the  additional  advisory  opinion  and  furnished  a
response and additional documentary  evidence  which  is  attached  at
Exhibit I.

_________________________________________________________________

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.   The  applicant's
complete submission was thoroughly reviewed and his  contentions  were
duly noted.  However, we do not find the  applicant’s  assertions  and
the documentation presented in  support  of  his  appeal  sufficiently
persuasive to override the rationale provided by  the  office  of  the
Staff Judge Advocate (AFPC/JA).  In view of the foregoing, and in  the
absence of clear-cut evidence to  the  contrary,  we  adopt  AFPC/JA’s
rationale and conclude that no basis exists 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   issues   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 30 Nov 00, under the provisions of AFI 36-2603:

      Mr. Vaughn E. Schlunz, Panel Chair
      Mr. William E. Edwards, Member
      Ms. Brenda L. Romine, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Feb 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 12 Jul 99.
    Exhibit D.  Letter, AFPC/DPPRS, dated 20 Sep 99.
    Exhibit E.  Letter, SAF/MIBR, dated 8 Oct 99.
    Exhibit F.  Letter, counsel, dated 29 Nov 99.
    Exhibit G.  Letter, AFPC/JA, dated 18 Aug 00.
    Exhibit H.  Letter, SAF/MIBR, dated 8 Sep 00.
    Exhibit I.  Letter, counsel, dated 7 Nov 00, w/atch.




                                   VAUGHN E. SCHLUNZ
                                   Panel Chair