RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-00931

            COUNSEL:  NONE

            HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

The Article 15, Uniform Code of Military Justice (UCMJ), dated  20 Oct
97, be removed from his records.

The Federal Bureau  of  Investigation  (FBI)  records  be  updated  to
correctly reflect a final disposition of all charges initially  levied
against him.

APPLICANT CONTENDS THAT:

After notification that he was being investigated for  rape,  civilian
defense counsel informed him that  he  would  be  charged  with  rape.
Subsequently, his military defense counsel advised him that  he  would
be offered an Article 15 because the primary witness against  him  did
not want to testify.  His counsel advised  him  that  the  Article  15
would not hurt his career.  He bases his request  for  relief  on  the
poor legal advice he received from defense counsel  and  the  enormous
stress he was under due to  the  prolonged  investigation.   He  takes
exception to being punished under Article 15, when no action was taken
against his accuser for her (allegedly) false allegations.

In support of his request, applicant submits personal statements, a
copy of a Letter of Evaluation (LOE), and a congressional inquiry
(Exhibit A).

STATEMENT OF FACTS:

On 6 Dec 95, applicant enlisted in the Regular Air Force in the  grade
of  airman  basic  (E-1)  for  a  period  of  four  years.    He   was
progressively promoted to the grade of airman first class (E-3),  with
an effective date and date of rank (DOR) 31 Aug 98.

The  Air  Force  Office  of  Special  Investigation  (OSI)  Report  of
Investigation (ROI) reveals that an investigation was initiated  based
on information that the applicant allegedly raped a female  Air  Force
member on 6 Apr 97, in violation of Article 120, UCMJ.  The ROI, dated
18 Jun 97, indicates the  status  as  “Referred  for  Action.   Action
Authority must provide  AFOSI  with  a  Report  of  Action  Taken  and
evidence disposition instructions.”

On 20 Oct 97, applicant was notified  of  his  commander's  intent  to
impose nonjudicial punishment on him  under  Article  15,  UCMJ.   The
misconduct  applicant  had  allegedly  committed  was  for  unlawfully
striking an airman on the arm with a plastic hanger and for committing
an indecent assault upon a  person  not  his  wife,  in  violation  of
Articles 128 and 134, UCMJ.  The applicant consulted a lawyer,  waived
his right to demand trial by court-martial  and  accepted  nonjudicial
punishment.  After considering  all  matters  presented  to  him,  the
commander found that the applicant did  commit  one  or  more  of  the
offenses alleged.  The commander imposed  punishment  of  a  suspended
reduction to the grade of airman basic and 30 days  extra  duty.   The
applicant withdrew his decision to appeal the commander’s decision  on
8 Nov 97.

Pursuant to the Board's request, the Federal Bureau of  Investigation,
Clarksburg, WV, provided an investigative report which is attached  at
Exhibit C.

Information extracted from the Personnel  Data  System  (PDS)  reveals
that on 5 Dec 99, the applicant was discharged  from  the  Air  Force,
under the provision of AFI  36-3208  (completion  of  required  active
service), and was given a reenlistment eligibility (RE)  code  of  1J,
which defined means “Eligible to reenlist, but elects separation.”

AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM,  reviewed  the  application
and concluded that there are  no  legal  errors  requiring  corrective
action.  JAJM recommends the application for relief be denied.   Since
JAJM does not maintain the law enforcement system of records, they did
not address the applicant’s request to  have  the  system  updated  to
correctly  the  disposition  of   the   offenses   that   were   under
investigation.  A complete copy of  this  evaluation  is  appended  at
Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  23
Aug 99 for review and response.  As of this date, no response has been
received by this office (Exhibit E).

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  AFLSA/JAJM
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
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the applicant’s request to remove the  Article  15  from  his
records.

4.  With respect to updating FBI records, inasmuch as the  Board  does
not correct other government  agency  records,  the  applicant  should
request  this  change  through  the  Air  Force  Office   of   Special
Investigation (OSI).  The proper procedure would be to send a  Privacy
Act Amendment Request to the AFOSI; i.e., a letter requesting that his
records be amended  under  the  Privacy  Act.   The  applicant  should
address his request to HQ AFOSI/SCR (Attn: Ms. Carolyn Warren), P.  O.
Box 2218, Waldorf, MD  20604-2218.

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  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 8 February 2000, under the provisions of AFI  36-
2603:

                  Mr. Benedict A. Kausal IV , Panel Chair
                  Mr. William H. Anderson, Member
                  Mr. Lawrence R Leehy, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, undated, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records and AFOSI
               Report of Investigation, No. 97515D-S809438, dated
               18 June 1997 (Withdrawn).
   Exhibit C.  FBI Record - 920590FB5
   Exhibit D.  Letter, AFLSA/JAJM, dated 28 Jul 99.
   Exhibit E.  Letter, SAF/MIBR, dated 23 Aug 99.




                                   BENEDICT A. KAUSAL IV
                                   Panel Chair