RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-01736
            INDEX NUMBER:  110.03; 126.04

      XXXXXXXXXXXXXX   COUNSEL:  Gary R. Meyers

      XXX-XX-XXXX      HEARING DESIRED:  No

_______________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to active duty in the grade of staff  sergeant  (SSgt)
as of 10 Apr 97.

He receive back pay and allowances from 10 Apr 97 to the present.

He be given credit for time in grade for pay, promotion, and retirement
purposes from 10 Apr 97 to the present.

The DD Form 214 in his record that reflects a separation date of 10 Apr
97 be expunged.

The Article 15 he received on 22 Jan 97 be expunged from his records.

The letter of reprimand (LOR) he received dated 9 Dec  96  be  expunged
from his records.

All documentation contained in an unfavorable information file (UIF) or
that pertains to control roster action be expunged from his records.

The enlisted performance report (EPR) rendered on him for the period  8
Apr 96 through 31 Dec 96 be expunged from his records.

_______________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel submitted a 10 page brief with exhibits in  support
of the applicant’s request.  Among the points that  counsel  makes  are
the following:

    A.  The Article 15 the applicant received on 22 Jan 97 was baseless
and was the culmination of efforts by local command to remove applicant
due to his inability to perform, through no fault of his  own,  in  his
Air Force Specialty Code (AFSC) at the seven skill level.

    B.  The applicant recognized a significant duty assignment  problem
on 8 Sep 95 when he received notification of his reassignment to  Korea
to fill a 1N051 billet, part  of  the  Intelligence  Operations  career
field.  The applicant, however, had not performed in this career  field
since his entry on active duty  in  1988.   The  applicant’s  commander
requested that the applicant’s AFSC be withdrawn and he be disqualified
not due to cause.  The request was denied.

    C.  It is questionable whether the applicant should  have  received
an Article 15 on 6 May 96  due  to  the  emotional  circumstances  that
contributed to the series of events and  given  the  applicant’s  prior
outstanding duty performance.

    D.  After returning from a deployment, the applicant  was  given  a
letter of reprimand  for  dereliction  of  duty  and  disrespect  to  a
superior commissioned officer for language used in a 7 Nov  96  e-mail.
After the applicant responded to  the  LOR,  the  dereliction  of  duty
charge was withdrawn, but the disrespect charge was  sustained.   There
is nothing in the     e-mail that meets the requirements under  Art  89
of the UCMJ to create such a circumstance.

    E.  The applicant’s EPRs have been universally  outstanding  except
for the referral EPR he received for the period 8 Apr 96 through 31 Dec
96.  The EPR attempts to cast the applicant  in  the  most  unfavorable
light when the only problem was a lack of training.

Counsel’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

According to information taken from the  applicant’s  master  personnel
records, he enlisted in the Air Force Reserve  on      3  Feb  83,  was
discharged on 21 Jul 83, and enlisted in the regular Air  Force  on  28
Jul 83.  He transferred to the Reserves on 27 Jul 87, was discharged on
29 Aug 88 and again enlisted in the regular Air Force  on  30  Aug  88.
Applicant entered active duty as a sergeant (E-4) in  the  intelligence
operations career field since he had been awarded his five-skill  level
during his previous enlistment.   Although  assigned  the  1N0X1  AFSC,
Intelligence Operations, the applicant performed  duties  outside  this
specialty for an extended period.  According to documents  provided  by
the applicant, his section commander  requested  that  the  applicant’s
AFSC be withdrawn and he be disqualified not for  cause  due  to  being
assigned duties outside his AFSC for a period of time  exceeding  eight
years.  The section commander’s request was disapproved by AFPC.

On 8 Sep 95, the applicant was notified that he had been  selected  for
an assignment to Korea to fill a 1N051 position.  Because he felt  that
he was not qualified in the 1N051 AFSC, the applicant requested through
higher headquarters that he  be  allowed  to  attend  the  Intelligence
Operations course enroute to his assignment.  There is no indication in
the record whether this request was acted on.

On 6 May 96,  while  serving  in  the  grade  of  staff  sergeant,  the
applicant was punished under  Article  15  for  disrespect  toward  his
commander and first sergeant.  He  was  given  a  six  month  suspended
reduction to senior airman and ordered to forfeit $250 in  pay.   As  a
result of the Article 15, the applicant’s commander requested that  the
applicant’s assignment to Korea be cancelled for quality force  reasons
and that he be diverted to a Continental US  (CONUS)  assignment.   The
applicant was reassigned to a CONUS assignment in Jul 96.

On 9 Dec 96, the applicant was given an LOR with entry into a  UIF  for
being  disrespectful  to  a   commissioned   officer   in   a   written
communication, e-mail, and for  dereliction  of  duty  for  failing  to
provide a requested pre-brief to a  C-130  commander  while  performing
duties at a deployed site.  Based  on  the  applicant’s  response,  the
commander dropped the charge of dereliction of duty, but sustained  the
charge of disrespect.

On 22 Jan 97, the applicant was punished by Article 15  for  wrongfully
using his American Express government travel card for personal use.  He
was reduced to the grade of senior airman, given a six-month  suspended
forfeiture of $697 per month for two months, and reprimanded.   Due  to
his reduction in grade and the associated high year  of  tenure  (HYT),
the applicant was released from active duty  on  10  Apr  97.   He  was
transferred to a Ready Reserve unit where he is  presently  serving  in
the grade of technical sergeant (E-6).

Applicant’s  airman/enlisted  performance  report   (APR/EPR)   profile
follows:

      Period Ending                     Evaluation

   28 Dec 88                          9
   28 Dec 89                          5
   21 Mar 91                          5
   21 Mar 92                          5
   21 Mar 93                          4
   21 Mar 94                          5
   21 Mar 95                          5
   15 Nov 95                          5
   07 Apr 96                          5
  *31 Dec 96                          1
  #19 Jun 98                          5
  #19 Jun 00                          5

*  Contested Report
#  Reports received since transfer to Reserves

_______________________________________________________________
AIR FORCE EVALUATION:

The  Chief,  Military  Justice  Division,  AFLSA/JAJM,  evaluated  this
application and recommends that the applicant’s request be denied.

In reference to the Article 15 given for disrespect,  while  the  words
quoted in the nonjudicial punishment allegations may not on their  face
appear  particularly  contemptuous,  it  is  necessary  to  take   into
consideration  the  manner  and  tone  in  which  they  are  delivered.
Obviously,  only  those  present  when  the  words  are  expressed  can
appreciate their full impact.  Given that both the commander and  first
sergeant were present, significant deference should  be  given  to  the
commander’s determination that the applicant’s actions and  words  were
disrespectful.  Additionally, the applicant admitted to this conduct in
his written presentation to the Article  15  where  he  states  “I  now
realize my actions on 25 and 27 April were wrong and disrespectful.   I
was reacting in a manner which was unprofessional and not warranted….”

AFI 65-104, Government Travel  Charge  Card  Program,  paragraph  25.1,
dated 1 May 1996, provides as follows: Cardholders shall  not  use  the
card for personal purposes.Use of the card for any purpose  other  than
official  government  travel  or  as  otherwise  authorized   by   this
instruction shall be considered personal use.  Paragraph  17.1  of  the
same regulation provides as follows: Use the ATM cash feature only  for
official travel.

Since the applicant had already returned from his TDY at  the  time  he
used  the  cash  advance  feature  of   the   card,   his   commander’s
determination that the applicant’s use of the card was for personal use
was warranted.  Though the specification in the Article  15  alleges  a
violation of AFI 65-104, paragraph 22, concerns delinquency, this error
is minor in nature and member was sufficiently put  on  notice  of  the
misconduct he engaged in.  While the circumstances of  the  applicant’s
predicament, if true, are unfortunate, relief should  only  be  granted
when the evidence demonstrates an error  or  a  clear  injustice.   The
evidence presented by the applicant  is  insufficient  to  mandate  the
relief requested, and does  not  demonstrate  an  equitable  basis  for
relief.

The complete evaluation is at Exhibit C.

The  Chief,  Field  Operations  Branch,  AFPC/DPSFM,   evaluated   this
application and addressed the UIF issues only.  He recommends denial of
the applicant’s request.

The commander acted within prescribed legal  authority  when  assigning
administrative actions.  The applicant  contends  that  the  derogatory
data should be expunged from his records yet he has failed to show  how
they are “baseless.”  When the applicant separated from the Air  Force,
the UIF data was destroyed.

The complete evaluation is at Exhibit D.

The  Enlisted  Promotion  &  Military  Testing  Branch  evaluated  this
application and  addressed  the  supplemental  promotion  consideration
should the application be approved.  They make no recommendation.

If the Board voids the Article 15s, the  applicants  original  date  of
rank (DOR) for SSgt was 1 Dec 90.  The first  time  the  contested  EPR
would have been considered in the promotion process was cycle  96E6  to
technical sergeant (promotions effective Apr 96-Jul 97).  Since the EPR
was a referral with  an  overall  rating  of  “1”,  the  applicant  was
rendered  ineligible  for  promotion  consideration  as   outlined   in
AFPC/DPMA 09160227Z Msg.

If the applicant is returned to active duty without a break in service,
the referral EPR removed from his records,  the  two  Article  15s  set
aside, all derogatory data/information expunged from his records  (UIF,
Control  Roster,  LOR),  providing  the  AFBCMR  directs   supplemental
promotion consideration, he could be  considered  starting  with  cycle
97E6.  He would not be selected during the 96E6  cycle,  as  his  total
score would be below the cutoff score required for selection.  His test
score from the first promotion cycle he tests  upon  return  to  active
duty would be used in providing supplemental consideration for previous
cycles.

The complete evaluation is at Exhibit E.

The Chief,  Evaluations  Program  Branch,  AFPC/DPPPE,  evaluated  this
application and addresses the EPR issue.  They recommend denial of  the
applicant’s request to remove the EPR from his records.

The applicant had been performing duties outside of his  primary  AFSC,
1N0X1, Intelligence Operations, for an extended period of time.  He was
returned to primary Intel duties at the end of  1995  and  received  an
assignment to Korea.  His return to Intel duties seemed  to  trigger  a
series  of  negative  events.   Upon  his  return,  his  rating   chain
discovered he was no longer qualified to perform  his  primary  duties.
No evidence exists nor does the  applicant  provide  any  support  that
proves his performance as documented by  evaluators  is  inaccurate  or
false.

The complete evaluation is at Exhibit F.

The Separations Branch,  AFPC/DPPRS,  evaluated  this  application  and
addresses the issue of separation processing.  They recommend denial of
the applicant’s request.

Applicant did not  identify  any  specific  errors  in  the  separation
processing nor provide facts that  warrant  reinstatement  in  the  Air
Force.

The complete evaluation is at Exhibit G.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the evaluations by stating  that  none
of the five advisories challenges the facts or law  as  they  initially
portrayed them.  None addresses the equity in the case or gives any new
clarity to the situation.

Counsel’s complete response is 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.  Sufficient relevant evidence has been presented to  demonstrate
the existence of probable error or injustice.  It appeared  to  the
Board that the applicant’s lack of proficiency  in  his  Air  Force
specialty played a central role in the problems he had.  They noted
that he was allowed to work outside his assigned specialty  for  an
excessive period of time.  While the record does not  indicate  why
this happened, it does appear that it was through no fault  of  the
applicant.  The Board again notes that the charge of dereliction of
duties contained in a letter of reprimand was  withdrawn  and  that
part of the applicant's defense was the extended period of time  he
worked outside his  primary  specialty.   Although  the  letter  of
reprimand was upheld based on the charge of disrespect  in  written
communications, the Board was not convinced of this by  the  copies
of the e-mails they reviewed.  In reviewing the  EPR  contested  by
the applicant, the applicant’s lack of proficiency in his specialty
is again the key issue.  Since this was a  Commander  Directed  EPR
and did not cover  a  complete  normal  rating  period,  the  Board
questions whether the  applicant  was  given  sufficient  time  and
support in his training.  One could be led to the  conclusion  that
he was not, given the outstanding performance reflected in his  EPR
ratings both before and after this report.  The Board believes that
any doubt should be resolved in the applicant’s favor and therefore
the contested EPR should be removed.  In reference to  the  Article
15 the applicant received on 22 Jan 97, the Board feels that it was
excessive given that the applicant was only recovering  funds  that
he was authorized and had spent in support of his TDY.   Therefore,
the Board recommends that the applicant’s records be  corrected  as
indicated below.

___________________________________________________________________
THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the  Air  Force
relating to APPLICANT, be corrected to show that:

        a.  The Letter of Reprimand he received, dated  9  December
1996, be declared void and removed from his records.

        b.  The Enlisted Performance Report, Air  Force  Form  910,
rendered for the period 8 Apr 96 through 31  Dec  96,  be  declared
void and removed from his records.

        c.  The nonjudicial  punishment  under  Article  15,  UCMJ,
initiated on 22 January 1997 and imposed on 30 January 1997, be set
aside and expunged from his records, and all rights, privileges and
property of which he may have been deprived be restored.

        d.  He was not released from extended  active  duty  on  10
April 1997 but was continued on active duty and was ordered PCS  to
his home of record pending further orders.

        e.  On 26 Nov 97, he reenlisted in the  Regular  Air  Force
for a period of four years.

       It is further directed that he be provided supplemental
consideration for promotion to the grade of technical sergeant (E-
6) beginning with the 97E6 cycle.

       If AFPC discovers any adverse factors during or subsequent
to supplemental consideration that are separate and apart, and
unrelated to the issues involved in this application, that would
have rendered the applicant ineligible for promotion, such
information will be documented and presented to the Board for a
final determination on the individual’s qualifications for the
promotion.

       If supplemental promotion consideration results in the
selection for promotion to the higher grade, immediately after such
promotion, the records shall be corrected to show that he was
promoted to the higher grade on the date of rank established by the
supplemental promotion and that he is entitled to all pay,
allowances, and benefits of such grade as of that date.

___________________________________________________________________

The following members of the Board considered this  application  in
Executive Session on 14 March 2001, under the provisions of AFI 36-
2603:

      Mr. Terry A. Yonkers, Panel Chair
      Ms. Carolyn J. Watkins, Member
      Mr. John E. Pettit, Member

All members voted to correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 20 Jun 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 11 Sep 00.
     Exhibit D.  Memorandum, AFPC/DPSFM, dated 21 Nov 00.
     Exhibit E.  Memorandum, AFPC/DPPPWB, dated 4 Dec 00, w/atchs.
     Exhibit F.  Memorandum, AFPC/DPPPE, dated 7 Dec 00.
     Exhibit G.  Memorandum, AFPC/DPPRS, dated 11 Dec 00.
     Exhibit H.  Letter, SAF/MIBR, dated 12 Jan 01.
     Exhibit I.  Memorandum, Applicant’s Counsel, dated 23 Feb 01.




                                   TERRY A. YONKERS
                                   Panel Chair



AFBCMR 00-01736


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXXXX, XXX-XX-XXXX, be corrected to show
that:

        a.  The Letter of Reprimand he received, dated  9  December
1996, be, and  hereby  is,  declared  void  and  removed  from  his
records.

        b.  The Enlisted Performance Report, Air  Force  Form  910,
rendered for the period 8 Apr 96 through 31 Dec 96, be, and  hereby
is, declared void and removed from his records.

        c.  The nonjudicial  punishment  under  Article  15,  UCMJ,
initiated on 22 January 1997 and imposed on 30  January  1997,  be,
and hereby is, set aside and expunged from  his  records,  and  all
rights, privileges and property of which he may have been  deprived
be restored.

      d.  He was not released from extended active duty on 10 April
1997 but was continued on active duty and was ordered PCS to his
home of record pending further orders.

      e.  On 26 Nov 97, he reenlisted in the Regular Air Force for
a period of four years.

      It is further directed that he be provided supplemental
consideration for promotion to the grade of technical sergeant (E-
6) beginning with the 97E6 cycle.

      If AFPC discovers any adverse factors during or subsequent to
supplemental consideration that are separate and apart, and
unrelated to the issues involved in this application, that would
have rendered the applicant ineligible for promotion, such
information will be documented and presented to the Board for a
final determination on the individual’s qualifications for the
promotion.

      If supplemental promotion consideration results in the
selection for promotion to the higher grade, immediately after such
promotion, the records shall be corrected to show that he was
promoted to the higher grade on the date of rank established by the
supplemental promotion and that he is entitled to all pay,
allowances, and benefits of such grade as of that date.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency