RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02912
            INDEX CODE:  129.00

            COUNSEL:  GREGORY ENGLISH

            HEARING DESIRED:  YES


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APPLICANT REQUESTS THAT:

His rank of Major be restored.

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APPLICANT CONTENDS THAT:

His reduction in rank to major is unfair.

In support of his appeal, the applicant provided counsel’s brief, and  other
documentation.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant's military records, 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 Chief,  Retirements  Branch,  Retirements  &  Separations  Division,  HQ
AFPC/DPPRR, reviewed this application and states that  they  cannot  presume
to know why the Personnel Council determined  that  applicant’s  service  in
the grade of Major was deemed unsatisfactory.  They  can  only  attest  that
the applicant was properly notified by his commander  and  given  sufficient
time to submit statements on his behalf.  The Personnel Council  did  render
a decision on 12 September 1997 finding that the  applicant  did  not  serve
satisfactorily in the grade of Major.  They are unable  to  review  contents
of the OGD package.  Since the  OGD  package  is  not  part  of  the  Master
Personnel  Records,  all  avenues  to  locate  the  OGD  package  have  been
exhausted.  Based on the fact that the Personnel Council was able to make  a
determination, they conclude that all procedures to present the OGD  to  the
Council were  proper.   The  applicable  statute  provides  for  Secretarial
determination concerning satisfactory service and the Personnel Council,  on
behalf  of  the  Secretary,  determined  the  applicant   had   not   served
satisfactorily in the grade of Major and directed retirement  in  the  grade
of Captain.  Applicant has not submitted  any  information  to  support  his
claim that the reduction  in  rank  was  unfair.   No  error  or  injustices
occurred during the OGD processing.  Therefore,  they  recommend  denial  of
the applicant’s request.

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

The Associated Chief, Military Justice Division, AFLSA/JAJM,  also  reviewed
this application and states that contrary to the applicant’s pleas,  he  was
convicted of some of the charges  and  acquitted  of  several  others.   The
applicant was entitled to submit, and did submit, matters for the  convening
authority’s review prior to taking action on the case.  The  accused  raised
the legal sufficiency of the conviction to the convening authority  and  the
issue was resolved  against  him.   As  the  accused  was  not  entitled  to
appellate review under Article 66,  UCMJ,  the  case  was  reviewed  by  the
Office of the Judge Advocate General as required by Article 69,  UCMJ.   The
findings and sentence were found to be supported in law  and  fact  and  the
conviction was finalized.  Additionally, any time  within  two  years  after
approval by the convening  authority  of  the  court-martial  sentence,  the
applicant was entitled to petition The Judge  Advocate  General  for  a  new
trial on the grounds of newly discovered evidence or fraud on the  court  in
accordance with Article 73, UCMJ.  The applicant did not do so.

The applicant alleges that he was denied due  process  of  law  because  the
record of trial  was  summarized  and  transcribed  by  a  government  court
reporter.  Article 64, UCMJ, sets forth the requirements  for  a  record  of
trial.  In general courts-martial, a complete (verbatim) record of trial  is
required for cases where the sentence extends to death,  dismissal,  or  the
punishment exceeds that that can be imposed by a special court-martial.   In
all other cases, the record is to contain such matters as  required  by  the
President.  Rule for Courts-Martial 1103, Preparation of  Record  of  Trial,
contains the president’s direction and authorizes  a  summarized  record  of
trial where a verbatim record is not required.  As applicant’s sentence  did
not trigger the requirements for a verbatim record,  the  summarized  record
of  trial  in  this  case  satisfies  the  statute   and   the   President’s
requirements.  Under the Rules for  Courts-Martial,  the  trial  counsel  is
required to examine  and  correct  the  record  to  ensure  it  reports  the
proceedings  accurately,  the  trial  defense   counsel   is   afforded   an
opportunity to examine the record and the military judge or  court  reporter
ultimately  authenticates  the  record,  thereby  declaring  it   accurately
reports the proceedings.  In this case,  the  military  judge  authenticated
the record on 13 March 1997 and a  copy  of  the  authenticated  record  was
provided to the accused on 24 March 1997.  If the applicant  had  a  concern
or need for  a  verbatim  record,  the  applicant  could  have  requested  a
verbatim transcription of any part of  the  court-martial  he  believed  was
necessary for clemency or review.  He could have also  requested  access  to
the court reporter’s notes and  tapes.   The  applicant’s  argument  that  a
summarized record is  a  denial  of  due  process  is  without  merit.   The
applicant’s  conviction  and  sentence  were  approved  by   the   convening
authority and found correct in law and fact on review by the Office  of  The
Judge Advocate General.   No  clear  error  or  injustice  occurred  in  the
applicant’s case.  Accordingly, the applicant’s request  for  relief  should
be denied.

A complete copy of the Air Force evaluation, with attachments,  is  attached
at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 May 2001, copies of the Air Force evaluations were  forwarded  to  the
counsel for review and response within thirty (30) days.  As of  this  date,
no response has been received by this office.

On 31 May 2001, a copy of the SAFPC Memorandum, undated, regarding  his  OGD
was forwarded to the applicant for review and response  within  thirty  (30)
days.  As of this date, no response has been received by this office

_________________________________________________________________

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  the  Air  Force  and  adopt
their rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.   Therefore,  in  the  absence  of
evidence to the contrary, we find no compelling basis to recommend  granting
the relief sought in this application.



4.    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.

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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 3 July 2001, under the provisions of AFI 36-2603:

                  Mr. Henry Romo, Jr., Panel Chair
                  Mr. Philip Sheuerman, Member
                  Ms. Olga Crerar, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 25 October 2000, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRR, dated 3 January 2001, w/atchs.
   Exhibit D.  Letter, AFLSA/JAJM, dated 17 April 2001, w/atchs.
   Exhibit E.  Letter, SAF/MIBR, dated 18 May 2001.




                                HENRY ROMO, JR.
                                Panel Chair