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 that he had  two  earlier  Article
15s.  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, his  commander
found that he had committed one or more of the alleged offenses and
imposed punishment consisting of a  reduction  from  the  grade  of
staff sergeant to the grade of senior airman, with  a  new  DOR  of
14 Jun 99.  Applicant appealed the action; however, his 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.

On 20 Oct 00, applicant  faxed  an  additional  one-page  statement
which is attached at Exhibit K.

___________________________________________________________________

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.  The commander had the discretionary authority  to  impose
nonjudicial punishment under Article 15, UCMJ,  when  he  concluded
that  reliable  evidence  existed  to  indicate  an   offense   was
committed.   When  offered  the  Article  15,  applicant   had   an
opportunity to establish his innocence by demanding trial by court-
martial.  However, he chose not to pursue this avenue and  accepted
the Article 15 instead.  In the opinion  of  the  majority  of  the
Board, the applicant has not provided any evidence showing that the
commander  abused  his  discretionary  authority  in  imposing  the
Article 15 punishment, that the punishment was too harsh,  or  that
the commander considered inappropriate information when he  imposed
the punishment.  Therefore, the majority  of  the  board  concludes
that no basis exists to recommend favorable action  on  applicant's
request to set aside the Article 15 or to reduce the punishment.

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  with  his
duty performance and the documented events.  The rater  was  tasked
with the responsibility of assessing  the  applicant’s  performance
during the period in question and is presumed to have rendered  his
evaluation based on his personal  observation  of  the  applicant’s
duty performance.   The  majority  of  the  Board  found  that  the
applicant has not presented any evidence showing that the rater was
unable  to  render  an  unbiased  assessment  of  the   applicant’s
performance or  that  the  report  was  prepared  contrary  to  the
governing regulation in effect at the time.   After  reviewing  the
evidence provided,  the  majority  of  the  Board  finds  that  the
applicant has not sustained his burden to demonstrate the existence
of error or injustice.  Based on the foregoing, and in the  absence
of evidence to the contrary, the majority of  the  Board  finds  no
compelling basis to favorably consider the applicant’s request that
the contested report be removed from his records.

___________________________________________________________________

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  and  10 November  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 did
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.
     Exhibit K.  Fax fr applicant, dated 20 Oct 00.



                                   GREGORY H. PETKOFF
                                   Panel Chair




MEMORANDUM  FOR   THE   EXECUTIVE   DIRECTOR,   AIR   FORCE   BOARD
                           FOR  CORRECTION  OF   MILITARY   RECORDS
                                      (AFBCMR)

SUBJECT:  AFBCMR Application of, Docket Number
                     99-02878

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that
applicant had not provided substantial evidence of error or
injustice and recommended the case be denied.  I concur with that
finding and their conclusion that relief is not warranted.
Accordingly, I accept their recommendation that the application be
denied.

      Please advise the applicant accordingly.



                                        JOE G. LINEBERGER
                                        Director
                                         Air  Force  Review  Boards
Agency