RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-03341
            INDEX NUMBER: 126.00

      XXXXXXXXXXXXX    COUNSEL:

      XXX-XX-XXXX      HEARING DESIRED:  No

_______________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 he received on 18 May 2000 be set aside.

He be restored to the grade of sergeant (E-4) with a date of rank (DOR)
of 11 Feb 96 and granted all backpay.

He be allowed to retain his selection for promotion to  staff  sergeant
which he earned prior to being punished by Article 15.

_______________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s appeal is presented  in  a  nine-page  memorandum  with  15
attachments.  He states that the punishment he received  under  the  18
May 00 Article 15, reduction in grade from sergeant (E-4) to airman (E-
2) with a six-month suspended reduction to airman  basic  (E-1)  and  a
letter of reprimand, was extremely severe and unfairly prejudicial.

He also states that he is innocent of the offenses  for  which  he  was
punished.  He asks the board to review the following points, for  which
he provides rebuttal or clarification, in weighing his appeal:

        A.  Letters of reprimand (LOR)  were  given  to  two  NCOs  for
failure to stop him from sexually  harassing  Airman  (Amn)____________
prior to his accepting punishment under Article 15 and  submitting  his
rebuttal.  The applicant states that  the  commander  by  administering
these LORs before reviewing his response to the Article 15  shows  that
he was prejudiced in his thoughts of what happened.

        B.  The Investigating Officer (IO)  stated  in  the  Report  of
Investigation  (ROI)  that  there  was  substantiated  proof  that  the
applicant and  two  other  Air  Force  members  had  sexually  harassed
Amn_________.  The applicant states that he believes it was unfair  for
him to be the only individual punished under Article 15.

         C.  The  individual  he  was  accused  of  sexually  harassing
prepared a letter stating that the whole ordeal had gone  down  a  road
that was not intended and that the punishment  given  to  him  was  too
severe.

D.  He has an e-mail from TSgt_________ refuting  comments  paraphrased
by the IO attributed to SMSgt___________ in the ROI.

        E.  The charge for violation for Article 92  that  stated  “You
having knowledge of a lawful order issued by  TSgt___________  to  stop
bothering Amn__________, an order which it was your duty to  obey,  did
at Sarajevo, Bosnia Herzegovina, from about 15 Aug 99 to  about  9  Dec
99, fail to obey the same… was dropped because he had  proved  that  it
was not true.  The applicant states that since this was brought  up  in
the ROI it proves the inconsistencies that existed  in  the  ROI.   The
applicant states that he would also like to know how he could have been
charged with disobeying an order from  TSgt_______  to  stop  harassing
Amn__________ and TSgt__________receive a LOR  for  not  attempting  to
stop him.

        F.  His past service record.  The applicant states that due  to
the severity of the punishment imposed on him, he does not believe that
his commander took into consideration his service record over the  past
seven and one-half years.

         G.  Character  Letters.   The  applicant  provides   character
letters that were included with his original rebuttal  to  the  Article
15.  The applicant states that these character letters will  attest  to
his character, past and present, and show that he  is  not  the  person
portrayed by the ROI.

        H.  The applicant states that due to his service record,  based
on guidance contained in the  Manual  for  Courts  Martial,  punishment
under Article 15 was not appropriate in his case.

        I.  At the time the decision was made regarding his punishment,
his commander was on convalescent leave due to being heavily  medicated
after having surgery.  The applicant states that he  makes  this  point
because his commander may not have  been  able  to  be  objective  when
making a decision as to what punishment he should receive.

        J.  He was selected for promotion to SSgt  prior  to  receiving
punishment by Article 15.

        K.  He was not properly represented by the Area Defense Counsel
(ADC).

        L.  Signed statements of testimony  by  all  of  the  witnesses
interviewed by the IO are missing.

The applicant further states that he filed an  inspector  general  (IG)
complaint based on two issues: that he  did  not  receive  all  of  the
evidence used against him and the investigation  done  was  flawed  and
that the IO paraphrased or “summarized” witness  statements  in  a  way
that was misleading in order to make a case against him.  The complaint
of  not  receiving  all  of  the  evidence   used   against   him   was
substantiated.

_______________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted  from  the
applicant’s military records, are contained in the letter  prepared  by
the appropriate office of the Air Force.

_______________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  evaluated
this application and recommends denial of the applicant’s requests.

After  reviewing  the  evidence,  the  commander  found  the  applicant
committed two of the three offenses alleged.   The  applicant  contends
that he was denied his  right  to  view  all  statements  and  evidence
available to the commander  and  thus,  he  was  unable  to  prepare  a
complete rebuttal and proof of his  claims.   The  applicant  indicates
that he was given the opportunity to review the complete statements six
months after being given the  Article  15,  yet  he  has  presented  no
evidence to indicate that anything in these statements  exonerated  his
guilt.

The applicant argues that there are no witnesses to attest to either of
the charges.   Therefore,  the  applicant  concludes  he  is  innocent.
However, he overlooks the fact that the victim provided sworn testimony
that he had touched her in an offensive  manner  without  her  consent.
She also testified that the applicant made indecent  comments  to  her.
The victim presented a letter during  the  Article  15  appeal  process
requesting the command reduce the applicant’s punishment.  However, she
did not say that he was innocent of the allegations.  Contrary  to  the
applicant’s claim that  no  one  witnessed  any  unlawful  touching  or
indecent language,  two  NCOs  gave  sworn  testimony  supporting  both
incidents.  The commander weighs the credibility of the  witnesses  and
determines if the alleged offender committed the offenses.

The applicant argues that  because  he  had  no  adverse  action  taken
against him previously, the  nonjudicial  punishment  was  prejudicial,
unfair, and did not fit the situation.  The applicant failed to examine
the complete authority in  the  Manual  for  Courts-Martial,  Part  IV,
Nonjudicial Punishment Procedure,  paragraph  1d(1)  (2000  ed.),  that
states  “nonjudicial  punishment   is   ordinarily   appropriate   when
administrative corrective measures are inadequate due to the nature  of
the minor offense or the record of the service  member,  unless  it  is
clear that only trial by court-martial will meet the needs  of  justice
and discipline.  Nonjudicial  punishment  shall  be  considered  on  an
individual basis  .”   The  commander  was  in  the  best  position  to
determine whether this case was appropriate for trial by  court-martial
or nonjudicial  punishment  proceedings  without  prior  administrative
corrective measures.

The complete evaluation is at Exhibit C.

The  Chief,  Inquiries/AFBCMR  Section,  AFPC/DPPPWB,  evaluated   this
application in regards to the issue of promotion.  If  the  Article  15
were voided as requested, the applicant would have “lost” the tentative
promotion based on the referral EPR.  He is not eligible to be promoted
to SSgt for the 00E5 cycle unless the  Article  15  is  voided  or  the
reduction and suspended reduction are removed, and the referral EPR  is
either voided in its entirety or that portion that makes it referral is
removed.  He would also have to be recommended by his commander and not
be ineligible for any of the other ineligible reasons outlined  in  AFI
36-2502, Table 1.1.

The complete evaluation is at Exhibit D.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant  on
15 June 2001 for his  review/comments  within  30  days.   To  date,  a
response has not been received.

_______________________________________________________________

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 opinions  and  recommendations  of  the  Air
Force offices 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.  Therefore, in the absence of evidence to the
contrary, we find no compelling basis to recommend granting the  relief
sought in this application.
_______________________________________________________________

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 2 August 2001, under the  provisions  of  AFI  36-
2603:

      Mr. Henry Romo, Jr., Panel Chair
      Mr. Clarence D. Long, III, Member
      Mr. Christopher Carey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated, 12 Dec 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 26 Apr 01.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 25 May 01,
                w/atch.
    Exhibit E.  Letter, SAF/MIBR, dated 15 Jun 01.




                                   HENRY ROMO, JR.
                                   Panel Chair