RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-02878
            INDEX CODE:  111.02, 126.00,
                         126.04

            COUNSEL:  None

            HEARING DESIRED:  No

APPLICANT REQUESTS THAT:

1.    The Article 15 he received on 3 Jun  99  be  set  aside  or  that  the
punishment be reduced.

2.    The Enlisted Performance Report (EPR) rendered for the  period  18 Jul
98 through 17 Jul 99 be declared void and removed from his records.

APPLICANT CONTENDS THAT:

The punishment was not only unjust but also unfair and too harsh.  This  was
his first offense.  He never received any kind of warning for misuse  of  e-
mail.  His commander did some research  on  him  (applicant)  and  found  by
mistake the two earlier Article 15s and once the commander  looked  at  that
information, an opinion was formed.  With so much at stake, he  believes  he
has shown a reasonable doubt exists and his career should be saved.  He  was
charged with maltreatment and harassment of a petty officer by  not  letting
her go to appointments and test on time.   His  commander  crossed  out  not
letting her go to appointments and test on time.  Without that, there is  no
maltreatment or harassment.  Besides that, the charge itself should  not  be
on there at all.  The complaint was about e-mail; how do they go and find  a
completely different person and based on  a  statement,  charge  him?   That
person did not work for him for over  three  months  and  they  try  to  say
sometime during a two-year period he committed an offense.

In support of his appeal, the applicant provided 21 attachments.

Applicant’s complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

The applicant’s Total Active  Federal  Military  Service  Date  (TAFMSD)  is
17 Aug 87.  He is currently serving in the Regular Air Force (RegAF) in  the
grade of senior airman, effective, and with a date of rank (DOR)  of  14 Jun
99.

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

            PERIOD ENDING          OVERALL EVALUATION

              2 Feb 89 (APR)               9
             30 Nov 89 (EPR)               3
              2 Aug 90                     2 (Referral Rpt)
              2 Aug 91                     5
             31 Mar 92                     5
             31 Mar 93                     5
             27 Oct 94                     3
             17 Jul 95                     5
             17 Jul 96                     4
             17 Jul 97                     5
             17 Jul 98                     4
           * 17 Jul 99                     3 (Referral Rpt)
             30 Mar 00                     4

     *  Contested report.

On 3 Jun 99, applicant was notified of  his  commander’s  intent  to  impose
nonjudicial punishment upon him for,  on  divers  occasions  between  on  or
about 1 Mar  and  12 Mar  99,  violating  a  lawful  general  regulation  by
wrongfully using government electronic mail and for, between Jul 97 and  Feb
99, maltreatment of a female petty officer, a person subject to  applicant’s
orders, by harassing her.  Although “not letting her test on time,  and  not
letting her go to appointments” was at the end of  the  foregoing  sentence,
these words were lined through on the Article 15.

On 9 Jun 99, after consulting with counsel, applicant waived his right to  a
trial by court-martial, requested a  personal  appearance  and  submitted  a
written presentation.

On 14 Jun 99,  he  was  found  guilty  by  his  commander  who  imposed  the
following punishment:  Reduction from the grade of  staff  sergeant  to  the
grade of senior airman, with a new DOR of 14 Jun 99.

Applicant did appeal the punishment;  however,  the  appeal  was  denied  on
7 Jul 99.  The Article 15 was filed  in  his  Unfavorable  Information  File
(UIF).

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  reviewed  this
application and indicated that, contrary to the applicant’s  assertions,  he
was not punished for sending personal e-mail but rather for  unofficial  use
by sending prohibited e-mail.  While limited personal use of  government  e-
mail is routinely permitted, the content of  the  e-mail  must  comply  with
applicable regulations.  The applicant repeatedly used government e-mail  to
send messages laden with profanity and sexual  innuendo.   Such  content  is
expressly prohibited by Air Force regulations.

While the applicant contends that he never received  any  warning  regarding
his  misuse  of  government  e-mail  prior  to  imposition  of   nonjudicial
punishment, commanders are not required to issue warnings  prior  to  taking
disciplinary action.  Discipline is a matter solely  within  the  discretion
of  the  commander  and  the  severity  of  the  offense  is  an  overriding
consideration in determining  an  appropriate  disposition.   The  commander
determined nonjudicial punishment was the appropriate forum  for  resolution
of these matters.
The applicant erroneously contends that he  was  charged  with  maltreatment
and  harassment  of  a  Navy  petty  officer  “by  not  letting  her  go  to
appointments and test on time.”  He notes that his commander  determined  he
was not guilty of the aforementioned allegations and therefore there was  no
maltreatment or  harassment.   Actually,  the  applicant  was  charged  with
maltreatment of the petty officer “by harassing her, not  letting  her  test
on time, and not letting her go to appointments.”   Although  the  commander
determined the applicant did not prevent the petty  officer  from  going  to
appointments or testing, he did determine the applicant harassed  the  petty
officer.  Namely, the applicant would invite himself to the petty  officer’s
home, ask her for dates, even though she was married, and tell her he  loved
her.   Although  the  petty  officer  told  the  applicant  this  made   her
uncomfortable, he failed to modify his behavior toward  the  petty  officer.
During this time, the applicant was the petty officer’s supervisor.

Lastly, while the applicant contends  his  commander  improperly  considered
his two prior Article 15s in  determining  an  appropriate  punishment,  the
commander denied this in a written  statement  to  the  applicant’s  defense
counsel.  Although he acknowledges he was aware  of  the  applicant’s  prior
Article 15s, he maintains he was specifically told  he  could  not  consider
them  and  did  not  consider  them  when  imposing  punishment  under   the
applicant’s most recent Article 15.

JAJM states  that  set  aside  is  only  appropriate  when,  under  all  the
circumstances of the case, the punishment has resulted  in  clear  injustice
and  is  not  warranted  in  this  case.   The  punishment  imposed  is  not
disproportionate to the offenses committed.  The arguments proffered by  the
applicant in support of his request for relief were considered and  rejected
by his  commander  and  the  appellate  authority.   JAJM  states  that  the
requested relief should be denied.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air  Force  evaluation  and  submitted  a  three-page
statement  with  statements  from  his   first-line   supervisor   and   his
noncommissioned officer-in-charge (NCOIC) during the contested time period.

Applicant’s complete response, with attachments, is attached at Exhibit E.

In an undated two  page  statement,  applicant  requested  his  EPR  closing
17 Jul 99 be removed  from  his  records.   He  states,  in  part,  that  he
understands this report has to reflect the Article 15 but not to  the  point
where it does him a disservice.

Applicant’s complete response, with attachments, is attached at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION:

The  Acting  Chief,  Appeals  &  SSB  Branch,  AFPC/DPPPA,   reviewed   this
application and indicated that the applicant has not provided  any  type  of
supporting documentation to substantiate the EPR is inaccurate  as  written.
IMC 96-1, paragraph 2-C, to AFI 36-2403, states, “The term ‘Article  15’  is
no longer prohibited when preparing EPRs and may be included on  any  future
EPRs.  Evaluator’s emphasis should be on the  behavior/action  that  led  to
the punishment.”

DPPPA further states that, Air Force policy is that an evaluation report  is
accurate as written when it becomes a matter of record  and  to  effectively
challenge an EPR, it is necessary to  hear  from  all  the  members  of  the
rating chain—not only for support but  for  clarification/explanation.   The
applicant has failed to provide  any  information/support  from  the  rating
chain on the contested EPR.  In the absence of information from  evaluators,
official substantiation of error or injustice  from  the  Inspector  General
(IG) or Military Equal Opportunity is appropriate, but not provided in  this
case.  It appears the report was  accomplished  in  direct  accordance  with
applicable regulations.  Based on the evidence  provided,  DPPPA  recommends
denial of applicant’s request to void the EPR.

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

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 3 Aug 00, applicant provided a Letter of Counseling  (LOC)  that  another
individual received regarding misuse of  the  agency’s  computer  resources.
Applicant stated that this is just one example of  how  he  was  treated  so
unfairly different from everyone else.

Applicant’s complete response, with attachment, is attached at Exhibit I.

On 6 Sep 00, applicant provided a two-page  statement  in  response  to  the
additional Air Force evaluation.

Applicant’s complete response is attached at Exhibit J.
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.  After a thorough  review  of  the
evidence of record and applicant’s submission, a majority of  the  Board  is
not persuaded  that  the  Article  15  should  be  set  aside  or  that  the
punishment should be reduced.  His contentions are duly  noted;  however,  a
majority of the Board finds no compelling basis upon which to conclude  that
he has been the victim of an error or injustice.  The  commander  determined
the applicant did not prevent the petty officer from going  to  appointments
or testing but did determine the applicant harassed the petty  officer.   In
his statement to the Area Defense Counsel, dated 12 Aug  99,  the  commander
reiterated that the punishment he imposed on the applicant was just and  fit
the nature of the offenses applicant committed.  He stated that he  did  not
consider the previous two Article  15  actions  against  the  applicant  and
although he acknowledged he was aware of the prior Article  15s,  he  stated
that he did not consider them when  imposing  punishment  under  applicant’s
most recent Article 15.  After noting this  statement,  a  majority  of  the
Board finds  no  reason  to  believe  the  commander  improperly  considered
applicant’s two prior Article 15s in determining an  appropriate  punishment
based on applicant’s unofficial use of government e-mail.

4.    In regard to applicant’s request that the EPR  closing  17 Jul  99  be
declared void and removed from his records, a majority of  the  Board  finds
no persuasive evidence showing that the  applicant  was  rated  unfairly  or
that the EPR remarks were inconsistent and inaccurate with  his  performance
and  documented  events.   The  rater  was  responsible  for  assessing  the
applicant’s performance during the period in question  and  is  presumed  to
have rendered his evaluation based on his  observation  of  the  applicant’s
performance and there is nothing in the evidence provided to  indicate  that
the rater was unable to render an independent assessment of the  applicant’s
performance or that the comment about  the  Article  15  is  in  error.   It
appears the report rendered  was  justified  based  on  applicant’s  overall
performance.  In reviewing the entire case, a majority of  the  Board  finds
that he has not sustained his burden to demonstrate the existence  of  error
or injustice.  In view of the above,  a  majority  of  the  Board  therefore
agrees 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.
Therefore, we find no compelling basis  to  recommend  granting  the  relief
sought.

THE BOARD DETERMINES THAT:

A majority of the panel finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

The following members of the Board considered this application in  Executive
Session on 5 October 2000, under the provisions of Air Force Instruction 36-
2603:

                  Mr. Gregory H. Petkoff, Panel Chair
                  Mr. George Franklin, Member
                  Mr. Steven A. Shaw, Member

By a majority vote, the Board recommended denial of  the  application.   Mr.
Franklin voted to grant the relief sought but does  not  wish  to  submit  a
minority report.  The following documentary evidence was considered:

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 5 Nov 99, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 11 Jan 00.
     Exhibit D.  Letter, AFBCMR, dated 28 Jan 00.
     Exhibit E.  Letter fr applicant, undated, w/atchs.
     Exhibit F.  Letter fr applicant, undated, w/atchs.
     Exhibit G.  Letter, AFPC/DPPPA, dated 29 Aug 00.
     Exhibit H.  Letter, AFBCMR, dated 8 Sep 00.
     Exhibit I.  Letter fr applicant, undated, w/atch.
     Exhibit J.  Letter fr applicant, undated.




                                   GREGORY H. PETKOFF
                                   Panel Chair