RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02029
            INDEX CODES:  111.02, 126.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15, imposed on 29 Sep 98,  be
set  aside  and  removed  from  his  records,  and  that  all  rights,
privileges, and benefits taken from him because of the Article  15  be
restored.

The Enlisted Performance Report (EPR) rendered for the  period  17 Aug
97 to 16 Aug 98 be declared void and removed from his records.

The effective date of his permanent disability retirement  be  changed
from 3 Jun 99 to 15 Jun 99 in order to qualify him for the over twenty-
two-year longevity pay raise.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was presented with two Article 15’s, the first that reduced him  to
the grade of technical sergeant, fined him and then removed  him  from
service because of high year of tenure, which  would  be  used  if  he
refused to immediately retire.  The other was a forfeiture of  pay  in
the amount of $2000  with  his  rank  left  intact  if  he  agreed  to
immediately submit his retirement papers.  He followed the  advice  of
his defense counsel and agreed to retire.

He has no memory of the events underlying the military justice  action
and that he was not responsible for his actions. He was diagnosed with
“depression” and had been treated at the Mental Health Clinic, and  he
has suffered recurring episodes of moderate to severe depression  over
several years.

In support of his appeal the applicant provided an expanded  statement
and extracts from his military personnel and medical records.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant's EPR profile since 1990 follows:

      PERIOD ENDING    EVALUATION

      16 Aug 90        5
      16 Aug 91        5
      16 Aug 92        5
      16 Aug 93        5
      16 Aug 94        5
      16 Aug 95        5
      16 Aug 96        5
      16 Aug 97        5
  *   16 Aug 98        3 (Referral)

* Contested report.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letters prepared by the appropriate  offices  of  the
Air Force.  Accordingly, there is no need to  recite  these  facts  in
this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and recommended denial.  JAJM noted that on 29 Sep 98,  the  applicant
was punished under  Article  15,  Uniform  Code  of  Military  Justice
(UCMJ), for the theft of two compact disks programs (Microsoft  Office
97, valued at $425, and Microsoft Front Page 98, valued at $139)  from
the Tinker Air Force Base  Exchange.   The  applicant  consulted  with
military defense counsel, accepted nonjudicial punishment  proceedings
rather  than  demand  trial  by   court-martial,   made   a   personal
presentation, and submitted written matters.  His commander determined
that  the  applicant  committed  the  offense  alleged   and   imposed
punishment consisting of a forfeiture  of  $1000  per  month  for  two
months and a reprimand.  The applicant did not appeal the action.

JAJM indicated that there was no evidence supporting  the  applicant’s
allegation  that  he  was  shown  two  Article  15's  which  presented
different punishments.  However, it is within the realm of reason, and
not improper, that the commander may have  somehow  indicated  to  the
applicant that if the applicant were to choose  to  remain  on  active
duty that harsher action may be required in  order  to  maintain  good
order and discipline within the unit, whereas if the applicant were to
choose to retire, that the commander could be a little  more  lenient,
as he would not  want  to  so  severely  impact  the  member  and  his
retirement.

Though  no  specific  standard  of  proof  applies   to   Article   15
proceedings, JAJM stated that there is no  question  that  fundamental
fairness requires that the military member understand  the  nature  of
his actions and the wrongfulness of such.   While  the  applicant  was
ultimately discharged for a  disability  due  to  a  major  depressive
disorder with psychotic features, there was nothing to  indicate  that
the applicant was unaware of his actions at the time of  the  offense.
Though the doctor's discharge summary indicated that he may have  been
in a psychotic state before being admitted to the hospital, he did not
indicate that the applicant might have been in  this  state  when  the
larceny was committed.  The evidence of  the  larceny,  consisting  of
statements by store detectives and recovery of the stolen merchandise,
indicated behavior  that  a  reasonable  individual  might  engage  in
(attempting to allude  the  detectives  and  get  rid  of  the  stolen
merchandise) when confronted with the theft.  It was only after  being
detained by security forces that the abnormal behavior was  mentioned.
It is highly possible that being  confronted  with  his  criminal  act
brought on this episode.

JAJM stated that if the applicant believed he was unable to understand
the ramifications of his actions at the time of the offense, he  could
have demanded trial by court-martial and a sanity board.  He chose  to
leave this matter in the nonjudicial punishment forum.  The  commander
was in the best position  to  evaluate  the  evidence,  determine  the
credibility of the witnesses, and  resolve  the  significance  of  the
disputed facts.  There was no evidence that the commander  abused  his
discretion when he determined that the  applicant  had  committed  the
offense charged.

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

The Evaluation Programs Branch, AFPC/DPPPE, reviewed this  application
and recommended denial.  DPPPE indicated that the  applicant  has  not
provided any supporting documentation that the contested report was in
error.  The rater only  documented  that  the  applicant  showed  poor
judgment  and  displayed  unprofessional  military  values  by   being
arrested for shoplifting.  This was not a prohibited  statement.   For
an evaluator to document unsatisfactory behavior and  the  results  of
that behavior are completely in  line  with  the  Enlisted  Evaluation
System (EES).   In  DPPPE’s  view,  the  applicant  has  not  provided
documentation to prove the invalidity of the contested report.   Thus,
his request is without merit.

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

The Physical Disability Division, AFPC/DPPD, reviewed this application
and recommended denial.  DPPD noted  that  the  applicant  received  a
permanent disability  retirement  on  3  Jun  99  due  to  a  physical
disability under the provisions of AFI 36-3212.  At the  time  of  his
retirement, the applicant had completed 21 years,  9  months,  and  21
days of active Federal military service.

DPPD indicated that the disability records reflected the applicant was
referred before an Medical Evaluation Board (MEB) on 15 Dec 98 and the
results forwarded to the Informal Physical Evaluation Board (IPEB) for
their review.  The Board subsequently found the  applicant  unfit  for
continued  military  service  for  a  diagnosis  of  major  depressive
disorder, severe, with psychotic features, considered to be in partial
remission at the time.  His medical conditions  for  hypertension  and
peptic ulcer disease were also considered, however, it was  felt  that
these conditions were not unfitting at the time of the MEB.  Following
their review, the IPEB recommended that he be permanently retired with
a 30 percent disability rating.  On 25 Jan 99, the member agreed  with
the findings of the IPEB.  Shortly thereafter,  officials  within  the
Office of  the  Secretary  of  the  Air  Force  directed  that  he  be
permanently retired with a disability rating of 30 percent  under  the
provisions of Title 10, United States Code (USC), Section 1201.

According to DPPD,  the  applicant’s  contention  that  his  commander
interfered  in  the  MEB/PEB  process  which  eventually  led  to  his
retirement  becoming  effective  shortly  before  his   over   22-year
longevity pay raise was unfounded and coincidental.  DPPD stated  that
after a thorough review of the case file, they concluded the applicant
was  treated  fairly  throughout  the   entire   military   disability
evaluation  process,  that  he  was  properly  rated   under   Federal
disability guidelines, and that  he  was  afforded  a  full  and  fair
hearing as required under military disability laws and policy.   Their
review of the case revealed no errors  or  irregularities  that  would
justify a change  to  his  military  records.   In  DPPD’s  view,  the
applicant has not submitted any material or documentation to  show  he
was improperly rated or processed under the provisions of the military
disability laws and policy at the time  of  his  permanent  disability
retirement.

A complete copy of the DPPD evaluation is at Exhibit E.

The  Medical  Consultant,  AFBCMR,  reviewed  this   application   and
recommended denial.  The Medical Consultant indicated  that,  although
the applicant  was  apparently  treated  in  1980  for  mental  health
problems, his career continued with advancement to the rank of  master
sergeant.   The  records  also  indicated  he  received   Article   15
punishment in 1980 for possession of  a  small  amount  of  marijuana,
action that he appealed unsuccessfully.  There was no  other  evidence
that he suffered from significant mental health problems prior to  the
shoplifting incident, and then only after he was apprehended  for  the
theft.  The records from his hospitalization were sparse  as  to  what
was really thought to have been his mental state prior to and  at  the
time of the theft, and it would seem that the  only  psychotic  action
appeared upon his apprehension, not  before.   From  the  evidence  at
hand, the Medical Consultant stated he  was  not  convinced  that  the
applicant suffered from incapacitating mental  health  issues  at  the
time of his shoplifting incident that would have clouded his  judgment
of right and wrong, and that it was the realization of what  this  was
going to have on his career that triggered his later behavior that led
to his being hospitalized.  Favorable consideration  of  this  request
cannot be justified  from  the  records  available  for  review.   The
Medical Consultant was of the opinion that no change  in  the  records
was warranted and the application should be denied.

A complete copy of the Medical Consultant’s evaluation is  at  Exhibit
G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinions and furnished a response  and
additional documentary evidence, including a Microsoft Office  compact
disk (CD), which are 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 regarding the applicant’s
requests that the Article 15 imposed on 29 Sep 98  be  set  aside  and
removed from his records, and the EPR closing 16 Aug 98 be voided  and
removed from his records.  The Board took notice  of  the  applicant's
complete submission in judging the merits of  the  case.   However,  a
majority of the Board does not find  it  sufficient  to  override  the
rationale provided by the Air Force offices of primary  responsibility
(OPRs).  Therefore, in the absence of evidence to  the  contrary,  the
Board majority agrees with the recommendations of the OPRs  and  adopt
their rationale as the basis for its decision that the  applicant  has
failed to sustain his burden of  establishing  that  he  has  suffered
either an error or an injustice.  Accordingly, a majority of the Board
finds no basis  to  recommend  favorable  action  on  the  applicant’s
requests.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  probable  error  or   injustice   concerning   the
applicant’s  request  that  the  effective  date  of   his   permanent
disability retirement be changed from 3  Jun  99  to  15 Jun 99.   The
applicant’s complete submission was thoroughly reviewed.  However,  we
do not find it sufficient to override the rationale  provided  by  the
Air Force offices of primary responsibility (OPRs).  Therefore, in the
absence of evidence of evidence to the  contrary,  we  adopt  the  Air
Force rationale and conclude that no basis  exists  to  recommend  the
applicant’s request.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice regarding the  applicant’s  requests  that  the  Article  15
imposed on 29 Sep 98 be set aside and removed from  his  records,  and
the EPR closing 16 Aug 98 be voided and removed from his  records  and
recommends the application be denied.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of  probable  material  error  or  injustice
concerning the applicant’s request that  the  effective  date  of  his
permanent disability retirement be changed from 3 Jun 99 to 15 Jun 99;
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 19 Apr 01, under the provisions of AFI 36-2603:

      Mr. Teddy L. Houston, Panel Chair
      Mr. Laurence M. Groner, Member
      Ms. Barbara J. White-Olson, Member

By a majority vote, the Board voted to deny the  applicant’s  requests
that the Article 15 imposed on 29 Sep 98 be set aside and removed from
his records, and the EPR closing 16 Aug 98 be voided and removed  from
his records.  Mr. Houston voted to grant  the  requests  but  did  not
desire to submit a minority report.  The Board  unanimously  voted  to
deny the applicant’s request that the effective date of his  permanent
disability retirement be changed from 3  Jun  99  to  15 Jun 99.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 25 Oct 00.
    Exhibit D.  Letter, AFPC/DPPPE, dated 5 Jan 01.
    Exhibit E.  Letter, AFPC/DPPD, dated 16 Jan 01.
    Exhibit F.  Letter, SAF/MIBR, dated 26 Jan 01.
    Exhibit G.  Letter, Medical Consultant, dated 7 Feb 01.
    Exhibit H.  Letter, AFBCMR, dated 12 Feb 01.
    Exhibit I.  Letter, applicant, undated, w/atchs.




                                   TEDDY L. HOUSTON
                                   Panel Chair



AFBCMR 00-02029






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

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice regarding
the applicant’s requests that the Article 15 imposed on 29 Sep 98 be
set aside and removed from his records and the EPR closing 16 Aug 98
be voided and removed from his records 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