RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-03123
            INDEX NUMBER: 134.01;110.03;111.01

      xxxxxxxxxxx      COUNSEL:  Philip D. Cave

      xxx-xx-xxxx      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

His involuntary resignation submitted on 11 Sep 98 be annulled and that
he be reinstated as a commissioned officer in the Air Force Reserve.

The Article 15 he received on 13 Dec 98 be set aside and all  pay  that
he forfeited be restored and  any  references  to  the  Article  15  be
removed from his records.

The Letter of Reprimand (LOR) he received on 15 Oct 98  be  voided  and
all references to it be removed from his records.

His records be purged of all references to the 13 Dec 98 Article 15 and
15 Oct 98 LOR.

It appears that as a first alternative the applicant is requesting that
if the Article 15 is not set aside, it be  replaced  with  the  earlier
version dated 14 Mar 98 and that  all  references  to  the  13  Dec  98
Article 15 and 15 Oct 98 LOR be removed  from  his  records.   He  also
requests that 14 Mar 98 be established as the start date of his UIF and
that it not be reestablished should his commission be reinstated.

As a second alternative, the applicant is requesting that if the 13 Dec
98 Article 15 is not set aside and  the  15  Oct  98  LOR  voided,  the
forfeiture of pay be adjusted and  based  on  Reserve  pay  instead  of
active duty pay.  He is also requesting that the UIF established on him
be disposed of by 13 Dec 00.

The referral Officer Performance Report (OPR) rendered on him  for  the
period 13 Nov 97 through 12 Nov 98  be  voided  and  removed  from  his
records.

_______________________________________________________________

APPLICANT CONTENDS THAT:

In a 25-page statement with 26 exhibits, among the points the applicant
makes are the following:

        a.  The theft incident he was involved in was due to stress and
sleep deprivation.

        b.  He tendered  resignation  of  his  commission  after  eight
months of delays by the Reserve in administering Article 15  punishment
due to  errors  and  injustices  that  had  caused  his  civilian  work
performance, patience, and  feelings  toward  the  Air  Force  judicial
system to deteriorate.

        c.  There were  a  number  of  errors  and  injustices  in  the
processing of the Article 15 imposed on him as evidenced by  his  being
served with the action three separate  times  before  it  was  properly
finalized.  Also, the punishment imposed on him in the third version of
the Article 15 was increased in severity over that of the second.

The forfeiture of pay imposed on  him  in  the  third  version  of  the
Article 15 was improperly calculated.

The applicant’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:


The applicant  was  a  reservist  assigned  to  the  932nd  Contingency
Hospital, Scott AFB, IL.  On  17  Jan  98,  the  applicant  was  caught
shoplifting approximately $20 in merchandise at the main exchange.  The
applicant was performing reserve duty at the time.

On 31 Jan 98, the applicant was served notification  by  the  15th  Air
Force Vice Commander (15AF/CV)  that  he  was  considering  whether  to
punish the applicant under Article 15 for violation of Article  121  of
the Uniform Code of Military Justice (UCMJ), larceny.  This action  was
later withdrawn due to the 15AF/CV not being in his chain of command.

On 7 Feb 98, the applicant was again served  Article  15  notification,
this time by the 4th Air Force Commander (4AF/CC) for the same  offense
as the 31 Jan 98 action.   The  applicant  accepted  proceedings  under
Article 15.  He consulted  an  area  defense  counsel  and  provided  a
written presentation.  The applicant’s presentation was  not  forwarded
to the decision authority,  instead,  the  applicant’s  unit  commander
determined that the applicant was guilty of  the  alleged  offense  and
imposed punishment on 14 Mar 98 consisting of  a  Letter  of  Reprimand
(LOR) with establishment of an unfavorable information file (UIF).  The
Article 15 was found to be legally deficient and set aside due  to  the
fact that the decision authority, 4AF/CC, did not personally act on it.

On 11 Sep 98, the applicant tendered his resignation from the Air Force
Reserves.  On 15 Oct 98, the 4AF/CC served a LOR and established a  UIF
on the applicant for the shoplifting offense of 17 Jan 98.  On  14  Nov
98, the applicant withdrew his resignation.  On  that  same  date,  the
applicant was gain served an Article 15 for  the  shoplifting  offense.
On 13 Dec 98, the 4AF/CC imposed punishment on the applicant consisting
of forfeiture of half pay per month for two  months  and  a  reprimand.
The applicant appealed the punishment to the USAFR/CV  who  denied  the
appeal.  The applicant separated from service on 1 Jun 99.

_______________________________________________________________

AIR FORCE EVALUATION:

The Chief, Military Justice Division, Air Force Legal Services  Agency,
AFLSA/JAJM,  evaluated  this  application  and  recommends   that   the
applicant be granted partial relief.

There is no issue pertaining to the applicant’s guilt.  The  first  two
attempts  at  serving  the  applicant  Article  15s  were  procedurally
deficient.  The Manual for Court-Martial, Part V 7f(3) states that  “if
the superior authority sets aside a nonjudicial  punishment  due  to  a
procedural error, that authority may authorize  additional  proceedings
under Article 15, to be  conducted  by  the  officer  who  imposed  the
nonjudicial punishment, the commander, or a successor in  command,  for
the same offenses involved in the original proceedings.  Any punishment
imposed as a result of these additional  proceedings  may  be  no  more
severe than that originally imposed.”  Because the  punishment  imposed
in the Article 15 on 13 Dec 98 increased the severity of the punishment
imposed in the Article 15 on 14 Mar 98, the portion  of  the  increased
punishment should be set aside.

In the interests of fairness, the LOR signed by the 4AF/CC on 15 Oct 98
and served on the applicant on 17 Oct 98 should be withdrawn  from  the
applicant’s personnel file because it was for the same offense  as  the
Article 15.

The applicant has not provided evidence of a clear injustice that would
warrant setting aside the entire Article 15 punishment  imposed  on  13
Dec 98.  However, justice does warrant setting aside the portion of the
punishment  that  increased  the  severity  of  the  original   imposed
punishment on 14 Mar 98.  Thus, all forfeitures should be reimbursed to
the applicant.  Also, in the interests of fairness, the  LOR  dated  14
Oct 98 should be removed from the applicant’s personnel file.

The complete evaluation is at Exhibit C.


The Air Force Reserve Command  Military  Personnel  Division,  ARPC/DPM
evaluated this application and addressed the applicant’s request to  be
reinstated and assigned to the Inactive Reserve.  They recommend denial
of the applicant’s request.  The applicant’s tender of resignation  was
processed in compliance with applicable directives.

The complete evaluation is at Exhibit D.

The Air Force Reserve Command  Military  Personnel  Division,  ARPC/DPM
also evaluated this application to address the applicant’s  request  to
remove a referral OPR from his records.  They recommend denial  of  the
applicant’s request.

The complete evaluation is at Exhibit E.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant with the aid of his counsel provided a nine-page response
to the Air Force evaluations.  The applicant divides his response  into
three major sections and provides comments  regarding  his  request  to
annul his involuntary resignation (sic), regarding his request to annul
or set aside the nonjudicial punishments, and regarding his request  to
remove his referral OPR.

The applicant addresses the following issues in his comments  regarding
his involuntary resignation.

        a.  Attitudes/Actions Prejudiced by Constant  Errors/Injustices
and Associated Delays.  The  applicant  provides  an  overview  of  the
series of actions he went through prior to  submitting  his  tender  of
resignation (TOR) and states that,  as  a  result,  his  feelings  were
greatly  prejudiced  by  the  Reserve’s  past  and  intended   use   of
administrative/nonjudicial punishment, which were  exacerbated  by  the
constant  errors/injustices  and  associated  delays.   The   applicant
asserts that had his commander expeditiously proceeded with  the  third
nonjudicial punishment, he would  have  accepted  the  punishment,  but
would not have submitted  a  TOR.   He  further  states  that  had  his
superiors proceeded with involuntary separation without undue delay, he
would have appeared before a discharge board, if necessary,  but  still
would not have submitted a TOR.  He states that he  believes  he  could
have presented a compelling case for retention.

         b.  Undue  Command  Influence.   The  applicant  states   that
contrary to Air Force guidance contained in  AFI  51-201,  Section  1.2
(unlawful Command Influence) that  the  military  justice  system  must
operate free of unlawful command influence, command influence  appeared
to be a large factor in how his case was handled.  He states  that  the
4th Air  Force  commander  affected  the  invalidation  of  the  second
nonjudicial punishment action, issued  the  second  LOR,  and  was  the
imposing  authority  and  selected  the  punishment   for   the   third
nonjudicial punishment action.  According to the  applicant,  he  also,
apparently, influenced his final OPR and the denial of his  request  to
withdraw his TOR, both of which were under  the  direct  control  of  a
subordinate level commander.  The applicant states that not all of  the
situations  involving  command  influence  directly  pertained  to  his
decision to resign, but they all contributed to his decision to  resign
and contributed to reluctance by the subordinate commanders  under  the
4th Air Force Commander to take any actions against  his  wishes.   The
applicant provides what he calls specific examples.

The applicant states that after receiving some long awaited relief from
stress in his family  life  and  civilian  job  and  having  a  clearer
perspective,  he  realized  that  his  TOR  was  wrong.   He  therefore
submitted a request to his unit commander on 11 Sep 98 to withdraw  the
TOR.  The applicant references a provision in  AFI  36-3209,  paragraph
2.43.2.1 that a commander who receives a  request  for  withdrawal  may
take  final  action  to  approve  the   withdrawal   and   return   all
correspondence to the officer.  The applicant  states  that  since  his
unit commander had the authority to approve his  request,  but  instead
stated that it rested with a higher level commander,  this  is  further
evidence of command influence.

        c.  Lack of Objective  Clinical  Assessment  by  Reserve.   The
applicant states that at the time he admitted his  guilt,  he  did  not
recognize the extraordinary circumstances under  which  he  acted.   He
states that the stressed and sleep-deprived mental state that  prompted
his irrational act of theft also prompted  other  less-than-wise  acts,
such as confessing before seeking an attorney’s advice.  He states that
he tried to explain the extenuating factors in many correspondences  to
the commanders involved in his case; however, a review of  the  records
pertaining to his application failed to produce any evidence of command-
level investigation into the stress-related aspects  of  his  behavior.
He states that counseling is readily offered and/or provided to  active
duty Air Force members under similar circumstances,  so  the  Reserve’s
apparent  lack  of  concern  indicates  another  short-coming  in   its
policies/procedures.   The  applicant  states   that   after   he   was
discharged,  he  uncovered  a  well-established  clinical  relationship
between stress and irrational behavior such as shoplifting.

The applicant provided comments on the following issues  regarding  his
requests to annul or set-aside nonjudicial punishment:

        a.  Lack of Withholding Letter/Directive, and Lack of  Personal
Appearance.  The applicant states  that  there  were  three  commanders
between him and the 4th Air Force Commander.  The applicant states that
the 4th Air  Force  Commander  had  obviously  taken  away  nonjudicial
punishment authority from the subordinate commanders.  He states that a
review of his records failed to produce a copy of a withholding  letter
of directive.  He further states that since the 4th Air Force Commander
was stationed in another state, he was denied  a  personal  appearance.
He states that a personal appearance would have been granted  with  any
of the other commanders.

        b.  Lack of Timeliness for Third Notice of NJP.  The  applicant
states that the 4th Air Force Commander initiated the third Article  15
on 19 May 98.  He states that he was not advised by his unit  commander
until 1 Jul 98 (six weeks after the action was initiated) that  he  had
to undergo Article 15 action again.  Because he was  not  served  in  a
timely manner, his  feelings  toward  the  Reserve  and  trust  in  the
military judicial process eroded, which in turn affected his subsequent
responses to the Article 15 actions.

        c.  Lack of Appeal Review, and Lack of Prompt  Notification  of
Results.  He states that he addressed his appeal  regarding  the  third
Article 15 to the 4th Air Force  Commander  and  assumed  it  would  be
forwarded to the next highest authority.  The     4AF/CC did not  grant
the full appeal, but he did not find a copy of the written  endorsement
to the appellate authority in his record of the Article 15 action.   He
states he was also not notified of the results of his appeal until  5.5
months after the appeal was submitted.

        d.  Lack of Objective Clinical Assessment.  The applicant makes
essentially the same points as indicated under this subject above.

The applicant provided comments regarding his  request  to  remove  the
referral OPR under the following heading:

         a.  Rater’s  Comments  Prejudiced  by  Delays  in  NJP.    The
applicant states that because the Article 15 action was not  swift,  he
was  unjustly  denied  the  opportunity  to  participate  and   provide
observable work performance of a more favorable nature.

        b.  Lack of Referral Letter.  He  states  that  he  received  a
referral letter with  an  OPR  containing  two  downgraded  performance
factors from his unit commander (rater) on 26 Nov 98.  He submitted his
response on  10  Jan  99.   His  Additional  Rater  downgraded  another
performance factor on 11 May 99, yet he was not given another  referral
letter, as required by AFI 36-2402, paragraph 3.7.2.  He claims he  was
not given the opportunity to respond to the new referral comments.

        c.  Delays in Completing the OPR.  The  applicant  states  that
his OPR reflected an incorrect  number  of  days  of  supervision,  365
rather than 213 or possibly much less.  The annual OPR was  not  signed
by the final endorser, (4AF/CC)  until  11  May  99,  well  beyond  the
closeout date.  It was not placed in his personnel file until  sometime
after 1 Jun 99, so he did not become  aware  of  the  errors/injustices
until  after  he  was  discharged.   He  was,  therefore,  denied   the
opportunity to address the OPR through normal personnel channels.

The applicant states that his inappropriate behavior was  isolated  and
truly out of character.  He  states  that  his  military  and  civilian
careers were exemplary prior to the incident,  and  that  his  civilian
career continues to flourish to this date.  He states  that  he  has  a
great deal of experience and knowledge that is still  valuable  to  the
Air Force and  Reserves.   He  states  that  he  has  already  received
punishment far beyond that warranted for a $20 theft.  He asks that  in
consideration of the many extraordinary  factors  associated  with  his
case that the Board grant his requests.

The applicant’s complete response is at Exhibit G.

The applicant provided additional information in support of his  appeal
that was received after the Board’s initial consideration.   The  Board
considered this additional information that  consisted  of  letters  of
recommendation and a copy  of  an  annual  appraisal  rendered  on  the
applicant before reaching a final decision.  The additional information
is at Exhibit H.

_______________________________________________________________

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  in  regards  to  the
applicant’s requests for  reinstatement,  complete  set  aside  of  the
Article 15 imposed on 13 Dec  98,  and  removal  of  the  referral  OPR
rendered on him for the period 13 Nov 97 through 12 Nov 98.  The  Board
took notice of the  applicant's  complete  submission  in  judging  the
merits of the case; however, the majority agrees with the  opinion  and
recommendation of the Air Force office of  primary  responsibility  and
adopt their  rationale  as  the  basis  for  our  conclusion  that  the
applicant has not been the victim of an error or injustice  in  regards
to these requests.

4.  Sufficient relevant evidence has been presented to demonstrate  the
existence of probable error or injustice in regards to  the  LOR  given
the applicant on 15 Oct 98 and  the  increased  Article  15  punishment
imposed on 13 Dec 98.  The  majority  of  the  Board  agrees  with  the
opinions and recommendations of the office  of  primary  responsibility
that in the interest of justice and fairness the portion of the Article
15 punishment imposed on 13 Dec 98 that increased the severity  of  the
punishment imposed on 14 Mar 98 be set aside and that the LOR be voided
and removed from the applicant’s records.  Therefore, the  majority  of
the Board recommends that the record be corrected as indicated below.

5.  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 issues involved.  Therefore,
the request for a hearing is not favorably considered.

_______________________________________________________________

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  15  Oct  98,  be
declared void and removed from his record


      b.  That portion of the nonjudicial punishment under Article  15,
UCMJ, imposed on 13 Dec 98, that provides for forfeiture of ½  pay  per
month for two months be  set  aside  and  all  rights,  privileges  and
property of which he may have been deprived be restored.

_______________________________________________________________

The following members of  the  Board  considered  this  application  in
Executive Session on 5 September 2001 and 9  October  2001,  under  the
provisions of AFI 36-2603:

      Mr. Gregory H. Petkoff, Panel Chair
      Mr. Clarence D. Long, III, Member
      Ms. Nancy W. Drury, Member

By a majority vote, the Board  voted  to  partially  grant  applicant’s
requests.  Mr. Long voted to deny  the  applicant’s  requests  and  has
attached a minority report at Exhibit  I.   The  following  documentary
evidence was considered:

     Exhibit A.  DD Form 149, dated 20 Nov 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 4 Apr 01.
     Exhibit D.  Memorandum, AFPC/DPM, dated 17 Jul 01.
     Exhibit E.  Memorandum, AFRC/DPM, dated 17 Jul 01.
     Exhibit F.  Letter, SAF/MIBR, dated 20 Jul 01.
     Exhibit G.  Statement, Applicant, undated, w/atch.
     Exhibit H.  Letter, Applicant, 25 Sep 01, w/atchs.
     Exhibit I.  Minority Report, dated 12 Oct 01.




                                   GREGORY H. PETKOFF
                                   Panel Chair



AFBCMR 00-03123




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 XXXXXXXXXXXX, XXX-XX-XXXX, be corrected to show
that:

            a.  The Letter of Reprimand he received, dated 15 Oct
98, be, and hereby is, declared void and removed from his record.

            b.  That portion of the nonjudicial punishment under
Article 15, UCMJ, imposed on 13 Dec 98, that provides for
forfeiture of ½ pay per month for two months be, and hereby is, set
aside and all rights, privileges and property of which he may have
been deprived be restored.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency