RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  00-03277
      INDEX CODE 126.02  131.09  129.04
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to the grade of E5/staff sergeant (SSgt) and promoted
to E6/technical  sergeant  (TSgt)  by  setting  aside  the  punishment
imposed on him by Article 15, Uniform Code of Military Justice (UCMJ),
dated 31 Oct 95, and the vacation of that punishment on 29 Apr 96.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was under a great  deal  of  personal  stress  and  his  supervisor
(rater) harassed both him and his wife. The supervisor  was  heard  to
comment that she wanted to get rid of him.  In Feb 95, she hit him  on
the back of the head while he was at a computer and called him stupid.
In Jun 95, his mother died of leukemia  and  angina.  He  had  chronic
respiratory infections  and  his  wife  had  asthma.   Then  his  wife
developed severe abdominal pain, required surgery and needed care.  He
was sometimes short with patients, told his supervisor (rater) that he
was  having  difficulties  coping  and  asked  for  understanding.  He
requested leave and was refused, even when his wife  needed  care  and
support.  His wife required more surgery and he put in a  leave  slip.
She was to be discharged on 29 Sep 95; however, she was  discharged  a
day earlier than he’d requested. He told his  rater  he’d  change  his
leave slip when he got back but his wife’s discharge was delayed until
well after noon on the 28th. When he returned to duty, he signed  back
in from leave but totally forgot to change the start date. No one said
anything at the time. He has a letter from the  doctor  regarding  his
wife’s delayed discharge from the hospital. He received  a  letter  of
reprimand due to patient  complaints,  for  which  he  apologized  and
explained his actions were not intentional. He received a message that
his father had called and that it was an emergency.  He did not have a
calling card,  panicked  and  called  his  father  back.  However,  he
specifically logged the use of the phone to contact his father. He was
not trying to avoid any responsibility and thought he would be  billed
for the call.  He was not asked for any clarification.  The  reporting
to  duty  issue  and  his  statement   to   his   supervisor   was   a
misunderstanding  that  was  blown  out  of  proportion.   After   his
demotion, he contacted the Inspector General  (IG);  however,  he  was
told no evidence of wrongdoing could be found and the hitting incident
was not a matter coming under their purview.

He provides, in part, a 12-page statement, a letter from his  wife  to
the Secretary  of  the  Air  Force,  a  doctor’s  statement,  numerous
character references and performance  feedback  sheets.  His  complete
submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

During the period in question, the applicant was a SSgt with a date of
rank of 23 May 86.  He was assigned to the  319th  Aerospace  Medicine
Squadron (319 AMS) at Grand Forks AFB, ND, as an optometry technician.

Prior to arriving at the 319 AMS, the applicant’s performance  reports
from 1975 to 1994 were: 8, 9, 9, 9, 9, 9, 9, 8, 9,  8,  8,  9,  3 (New
System), 4, 5, 5, and 5.  His performance reports  with  the  319  AMS
from 1995 to 1998 were: 3, 2 (Referral), 3,  and  3.   The  rater  and
indorser were the same for both the  referral  EPR  and  the  previous
report, which had an overall rating of “3.”

On 17 Oct 95, the applicant was notified of the  319  AMS  commander's
intent to impose nonjudicial punishment upon him for being derelict in
the performance of his duties on  16  Aug  95  by  willfully  using  a
government telephone to make a personal long-distance phone call  and,
on 11 Oct 95, in willfully failing to complete  a  new  AF  Form  988,
Leave Request/Authorization, reflecting the change in his leave  start
date.

On 25 Oct 95, after consulting  with  counsel,  applicant  waived  his
right to a trial by court-martial, requested a personal appearance and
submitted a written presentation.  On 26 Oct 95, his  commander  found
him guilty  of  the  alleged  misconduct  and  imposed  punishment  of
forfeiture of $50.00 pay per month for two months and reduction to the
grade of senior airman (SRA). However, the reduction and forfeiture of
$50.00 pay for the second month were suspended until 25 Apr 96,  after
which time it would be remitted without further action, unless  sooner
vacated. Applicant did not appeal the punishment.

The  Article  15  rendered  the  applicant  ineligible  for  promotion
consideration to TSgt for cycle 96E6.

On 22 Apr 96, the commander notified the applicant of  his  intent  to
vacate the suspended portion of the  Article  15  punishment  for  two
offenses committed on 17 Apr 96. The  applicant  allegedly  failed  to
obey a direct order to report to his duty section at the  proper  time
upon completing 8 hours of sleep and made a  false  statement  to  his
supervisor, with intent to deceive, causing her to believe he had just
gotten off night shift work 20 minutes prior,  which  he  knew  to  be
false.  The applicant requested a personal appearance and submitted  a
written presentation on 25 Apr 96.

On 29 Apr 96, the commander found the applicant guilty and vacated the
suspended nonjudicial punishment.  As  a  result,  the  applicant  was
reduced to SRA, with a date of rank (DOR) of 26 Oct 95.

On 16 May 96, the Enlisted Performance Report (EPR) for the period  16
May 95 through 15 May 96 was referred to the  applicant.   Performance
factors pertaining  to  compliance  with  standards  and  on/off  duty
conduct were marked to the extreme left side, and the  overall  rating
was “2,” or not recommended for promotion at this time. The rater  and
indorser  made  negative  comments  with  regard  to  the  applicant’s
leadership,  manner  with  patients,   performance,   self-confidence,
judgment  and  personal  responsibility.   The  applicant  provided  a
rebuttal, contending there was no correlation between the EPR and  the
performance feedback he received.

On 15 Apr 98, a grade determination by the Secretary of the Air Force,
Personnel Council (SAF/PC) concluded that  the  applicant  had  served
satisfactorily in the higher grade of SSgt within the meaning of Title
10, USC, Section 8964, and directed that he be advanced to that  grade
on the Retired List effective the date of completion of  all  required
service.

An SRA or SSgt reaches high year of tenure at 20 years.  As a  result,
the applicant was retired on 1 Feb 99 in the  grade  of  SRA  with  20
years and 9 days of active service.  When the applicant’s service  and
retirement time totals 30 years  (around  1  Dec  2009),  he  will  be
advanced to the grade of SSgt.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Military Justice Division, AFLSA/JAJM, reviewed the  appeal
and  noted  that  the  portion  of  the  applicant’s  nonjudicial  was
suspended until 25 Apr 96. The commander did not vacate the suspension
until 29 Apr 96.  Accordingly, the vacation action is a nullity.  With
regard to the nonjudicial punishment action, the evidence presented by
the applicant was sufficient to support the allegations. Although  the
evidence presented by the applicant  might  be  deemed  sufficient  to
demonstrate an equitable basis for relief, this would only be the case
should the applicant’s version of the facts be found to be believable.
 Apparently, the commander did not find  the  equities  sufficient  to
discontinue the nonjudicial punishment proceedings.

A complete copy of the evaluation is at Exhibit C.

The Chief, Inquiries/AFBCMR Section, HQ  AFPC/DPPPWB,  also  evaluated
the case and notes that the referral EPR rendered him  ineligible  for
promotion consideration for the 96E6 cycle even if he had not received
the suspended reduction, in accordance with AFPC/DPMA 9 Jul 95 message
and AFI 36-2502.  Should  the  Board  set  the  reduction  aside,  the
applicant’s effective date and DOR to SSgt was 23 May  86.  The  Chief
notes the AFLSA/JAJM determination that the  vacation  is  a  nullity.
Since the applicant never served in the grade of  TSgt,  there  is  no
basis or valid reason to authorize a promotion to this grade.

A complete copy of the evaluation, with attachments, is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 15 Jun 01 for review and comment within 30 days.   As  of
this date, this office has received no response.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Upon further review, the Chief, Military Justice Division, AFLSA/JAJM,
concluded that portion of their original advisory  pertaining  to  the
vacation being a nullity  was  erroneous.   As  a  result,  the  Chief
submitted a revised advisory on 9 Jul  01.   Essentially,  AFI  51-202
clearly states that to vacate a suspension, the commander must present
the offender with AF Form 366 before the end of the suspension period.
 The suspension  is  stayed  if  the  probationer  has  been  properly
notified via AF Form 366 during the suspension period.  The  applicant
was notified of his commander’s intent to vacate the suspension of the
previously imposed punishment on 22 Apr  96,  three  days  before  the
suspension period was to expire. That notification served to stay  the
suspension; accordingly, the action to vacate was timely  and  legally
sufficient.

A complete copy of the amended advisory is at Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

A complete copy of the amended advisory was forwarded to the applicant
on 10 Jul 01 for review and comment within 30 days.  As of this  date,
this office has received no response.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of  probable  error  or  injustice  to  warrant  partial
relief.  With regard to the Article 15,  the  applicant,  by  his  own
admission, did make a personal long  distance  call  on  a  government
phone and neglected to change his leave start date. While his mistakes
may have been the  result  of  stress  as  he  contends,  he  has  not
demonstrated that the nonjudicial punishment for  these  offenses  was
the result of supervisory harassment as alleged or that  the  imposing
commander abused his discretionary authority. Although  the  suspended
reduction did  not  result  in  a  lost  stripe,  it  did  render  him
ineligible for promotion consideration for the  96E6  cycle.   He  was
further rendered ineligible for that and the following  cycle  by  the
“2” referral EPR.   The  performance  report  did  not  refer  to  the
offenses contained in either the Article 15 or  the  vacation  action,
but commented instead on the applicant’s poor  judgement,  manner  and
personal responsibility. The applicant’s submission has not  persuaded
us that both the Article 15  with  its  suspended  reduction  and  the
referral EPR with its nonrecommendation for promotion to TSgt  are  in
error and should be voided.  However, we are  uncomfortable  with  the
vacation of suspended punishment action, particularly in view  of  its
long-term repercussions.  The available documentation presents a  very
confusing picture as to when the applicant and his supervisor believed
he did, or was supposed to, report  back  to  duty.   Given  the  real
possibility that both parties misunderstood the situation,  the  muddy
circumstances surrounding the vacation action, and the fact  that  the
“hard bust” continues nearly 10 years into the applicant’s retirement,
we believe any doubt in this respect should be resolved in his  favor.
Therefore, we recommend the nonjudicial punishment imposed  on  29 Apr
96 be voided, his grade of SSgt with a DOR of 23 May 86  be  restored,
and he  be  retired  in  that  grade.   The  applicant’s  request  for
promotion to TSgt was noted but not favorably considered. We  did  not
recommend that the impediments to the 96E6 and 97E6 cycles be  removed
and the applicant has not demonstrated that even if he  were  eligible
for promotion consideration his selection to TSgt was  guaranteed.  In
view of the above, the applicant’s records should be corrected to  the
extent 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 vacation  of  suspended  nonjudicial  punishment,  which
provided for the reduction in grade  from  staff  sergeant  to  senior
airman and forfeiture of $50.00 pay under the  provisions  of  Article
15, UCMJ, initiated on 22 April 1996 and imposed on 29 April 1996,  be
set aside and expunged from his records, and  all  rights,  privileges
and property of which he may have been deprived be restored.

      b.  On 1 Feb 99, he was retired in the grade of staff  sergeant,
rather than senior airman.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 Aug 2001 under the provisions of AFI 36-2603:

                 Mr. Patrick R. Wheeler, Panel Chair
                 Mr. Philip Sheuerman, Member
                 Ms. Martha Maust, Member

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

   Exhibit A.  DD Form 149, dated 23 Nov 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 29 Mar 01.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 30 Apr 01, w/atchs.
   Exhibit E.  Letter, SAF/MIBR, dated 15 Jun 01.
   Exhibit F.  Letter, AFLSA/JAJM, dated 9 Jul 01.
   Exhibit G.  Letter, AFBCMR, dated 10 Jul 01.




                                   PATRICK R. WHEELER
                                   Panel Chair




AFBCMR 00-03277




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         , be corrected to show that:

           a.  The vacation of suspended nonjudicial punishment, which
provided for the reduction in grade from staff sergeant to senior
airman and forfeiture of $50.00 pay under the provisions of Article
15, UCMJ, initiated on 22 April 1996 and imposed on 29 April 1996, 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.

           b.  On 1 February 1999, he was retired in the grade of
staff sergeant, rather than senior airman.






   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency