RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-00406
            INDEX CODE:  126.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The punishment imposed upon him under Article 15, Uniform Code  of
Military Justice (UMCJ), dated 23 June 2000 be removed.

2.  He be reinstated to the grade of staff sergeant (SSgt) (E-5), with
the original date of rank of 1 December 1997, and with back pay.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 23 May 2000, he was served an Article 15 with a suspended reduction
to the rank of senior airman.  It was to have a Termination Date of 22
November 2000.  Later he was called into the 1st Sergeant’s office and
was given a paper that had a vacation of suspended reduction,  but  it
states that on 19 May 2000 he did deceive the Shop Chief at Kunsan AB.
 He did not know anything about this  until  he  was  in  the  Shirt’s
office.  The 1st Sergeant told him that he could  not  reply  to  this
action until 4 months had passed to allow time for him to  be  a  good
troop.  The date that  is  in  question  is  before  he  received  his
suspended reduction and therefore is  not  a  valid  reason.   He  has
checked his U.I.F. along with his personnel records and  there  is  no
record of any letter’s of  counseling  or  any  letters  of  reprimand
stating that he had deceived the Shop Chief.

The 4 months that would have passed by put him into  September,  which
was when he PCS’d from Kunsan AB, Korea back to the USA.  He  took  30
days leave enroute and arrived at Dyess AFB, TX in late October.   His
household goods arrived just before Christmas so he waited until after
all the holidays to bring  this  up  to  the  Area  Defense  Counsel’s
attention.  He was then told to type out all the circumstances and how
it happened.

He states that he is approaching his high year of  tenure  for  senior
airman in August, and the result of this board will have an  important
decision as to whether or not he is allowed to stay in the  USAF.   In
his almost 12 years of active duty he feels as though  he  has  helped
out many new airmen coming into today’s Air Force and  would  like  to
continue this.  He is proud to be a member of the world’s top fighting
force and feels, if given the chance to prove this, he could  make  up
for this injustice in leaps and bounds.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular  Air  Force  in  the
grade of senior airman.

On 4 May 2000, applicant was served with an Article 15  for  violating
Article  121  of  the  Uniform  Code  of  Military   Justice   (UCMJ),
specifically  for  larceny.   On  9  May  2000,   applicant   accepted
nonjudicial punishment proceedings in lieu of trial by  court-martial.
He consulted  a  lawyer,  made  a  personal  presentation  before  his
commander and submitted a  written  presentation.   On  23  May  2000,
applicant’s commander imposed punishment consisting of  a  one  stripe
reduction, forfeiture of $150 pay per month for two months, seven days
 extra duty and a reprimand.  The reduction in grade was suspended for
six months.  The applicant did not appeal the punishment.  On 19  June
2000, the applicant was given notice  of  his  commander’s  intent  to
vacate the suspended portion of the Article 15 based  upon  misconduct
committed by the applicant.  The misconduct that formed the  basis  of
the vacation was a false official statement, in violation  of  Article
107, UCMJ, made on 19 May 2000.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  reviewed
the application and states that it is not clear from  the  applicant’s
petition whether he considers the original Article 15 or the  vacation
or both to be an injustice.  As to the original Article 15 action, the
applicant  provided  no  additional   information   or   evidence   to
substantiate the allegation of  injustice.   The  applicant  presented
matters  to  the  commander  and  it  is  clear  from  the   reprimand
administered as part of the punishment  that  the  commander  did  not
believe the applicant.  The commander was in the best position at  the
time to assess the credibility and weight to be given to the  evidence
before him and concluded adversely to  the  applicant.   There  is  no
basis in law  or  fact  to  conclude  the  commander’s  imposition  of
punishment was clearly erroneous or unjust.

Notwithstanding the appropriateness of the original Article 15 action,
the vacation action is erroneous and should be set-aside.  The  Manual
for  Courts-Martial,  Part  V,   Nonjudicial   Punishment   Procedure,
paragraph 6a(5), indicates that vacation of suspension  may  be  based
only on a violation of  the  conditions  of  suspension  which  occurs
within the period of a suspension.  The punishment and suspension went
into effect on 23 May 2000.  The misconduct that forms  the  basis  of
the vacation action occurred on 19 May 2000.  Although this misconduct
could have been the basis for a new nonjudicial punishment action,  it
was not properly the basis for the vacation action.  It is clear  that
this is an error.

The applicant has provided no evidence of a clear error  or  injustice
related  to  the  initial,  4   May   2000,   nonjudicial   punishment
proceedings.  They recommend  the  Board  deny  that  portion  of  the
applicant’s request to have the original nonjudicial punishment action
removed from his records.  However, they recommend the  19  June  2000
vacation action be removed from the applicant’s record  and  that  all
rights affected by the vacation action be restored.

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

The  Chief,  Inquiries/AFBCMR  Section,  AFPC/DPPPWB,   reviewed   the
application and states that if the  Board  voids  the  Article  15  or
removes the vacated action, the date of rank and  effective  date  for
staff sergeant  would  revert  to  the  original  date  of           1
December 1997.

The applicant received a referral EPR closing  1  June  2000  with  an
overall rating of “2”.  The  referral  EPR  would  have  rendered  him
ineligible for promotion consideration in accordance with AFI 36-2502,
Airman Promotion Program, Table 1.1,  Rule  22  for  the  00E6  cycle.
Promotion eligibility is regained only after the  member  receives  an
EPR with a rating of “3” or higher that closed out on  or  before  the
Promotion Eligibility Cutoff Date (PECD) for the next cycle.  The PECD
for the next cycle, 01E6, was  31  December  2000.   As  a  matter  of
information, the applicant would not have been selected for  the  00E6
cycle had he been eligible.  Selections were made on 8 June  2000,  he
was reduced to SrA on   23 May 2000, and  received  the  referral  EPR
closing 1 June 2000.  He would have  missed  selection  for  the  00E6
cycle by 70.50 points had he been considered.

If the AFBCMR sets aside the Article 15 or the  vacated  action  which
resulted in the reduction, the  applicant  will  not  be  entitled  to
supplemental promotion consideration for the  01E6  cycle  because  he
received a referral EPR  closing  1  June  2000.   In  order  for  the
applicant to be eligible for supplemental consideration for  the  01E6
cycle, the AFBCMR would have to void the referral  report  or  upgrade
the overall rating to a “3” or higher and remove the  portion  of  the
report that makes it a referral, providing he  is  otherwise  eligible
and recommended by his commander.

A complete copy of their evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 June 2001, a complete copy  of  the  Air  Force  evaluation  was
forwarded to applicant for review and response within 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 warranting removal of the
Article 15  be  removed  from  his  records.     After  reviewing  the
evidence of record, we find no evidence of error or injustice  related
to the nonjudicial punishment proceedings.  In absence to the evidence
to the contrary, we find no compelling basis upon which  to  recommend
removal of the Article 15, dated 23 May 2000, from his records.

4.   Notwithstanding  the  above  determination,  we  note  that   the
Associate  Chief,  Military  Justice  Division,  indicates  that   the
vacation action is  erroneous  and  should  be  set  aside.   In  this
respect, they note that his misconduct occurred before  the  contested
Article 15 was  issued.   Therefore,  to  remove  any  possibility  of
injustice to the  applicant,  we  recommend  that  the  19  June  2000
vacation action be removed from the applicant’s record  and  that  all
rights affected by the vacation action be restored.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show  that  the  19  June  2000
vacation of the suspended portion of the  punishment  imposed  on  the
applicant under Article 15, Uniform Code of Military Justice (UCMJ) on
23 May 2000 which provided for reduction in grade from staff  sergeant
(E-5) to senior airman (E-4) 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 29 August 2001, under the provisions of  AFI  36-
2603:

              Mr. Frederick R. Beaman III, Panel Chair
                  Mr. Roscoe Hinton, Member
              Mr. E. David Hoard, Member

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

   Exhibit A.  DD Form 149, dated 5 Feb 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 18 Apr 01.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 17 May 01, w/atch.
   Exhibit E.  Letter, AFBCMR, dated 15 Jun 01.




                                   FREDERICK R. BEAMAN III
                                   Panel Chair








AFBCMR 01-00406
INDEX CODE:  126.00



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 the 19 June 2000 vacation
of the suspended portion of the punishement imposed on the applicant
under Article 15, Uniform Code of Military Justice (UCMJ) on 23 May
2000 which provided for reduction in grade from staff sergeant (E-5)
to senior airman (E-4) 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