RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-01241
            INDEX CODE:  126.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15, Uniform Code  of  Military
Justice (UCMJ), dated 8 May 1998 be set aside.

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APPLICANT CONTENDS THAT:

He has been in the Air Force for over 17 years and has endured all that  has
been done to him.  His only mistake was  not  admitting  his  guilt  to  his
commander at the time of the incident.  He has since admitted to taking  the
$100.00 from the ATM to his commander.  At the time of the incident  he  had
no premeditated intention of stealing any money from the ATM,  he  was  only
interested in withdrawing money from his account.

At the time of his crime he did not admit  any  guilt  because  his  defense
attorney advised him not to say anything until she  had  seen  the  evidence
against him.  A day prior to the meeting with his commander he met with  his
attorney to discuss the evidence against him and was informed that  she  had
not yet seen any evidence for his case.  When he questioned  her  about  why
she had not yet seen any evidence for his case she  became  very  defensive.
He released her as his attorney and hired a civilian attorney.   He  is  not
trying to excuse his actions and  he  knows  he  should  have  admitted  his
guilt.  Since receiving the Article 15, he has been allowed  to  retest  for
staff sergeant one time to remain in the  Air  Force.   After  20  years  of
service he will retire as a staff sergeant.  This is not fair.  This is  not
supposed to be a one mistake Air Force.

In support of his request, he submits a personal statement, the Article  15,
dated 16 June 1998, 8 character reference letters, and other documentation.





Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant is currently serving in the Regular Air  Force  in  the  grade  of
staff sergeant.

On 23 April 1998, applicant  was  notified  of  his  commander's  intent  to
impose nonjudicial punishment upon him for larceny  (a  $100.00  theft  from
another individual’s ATM account).

On 4 May 1998, after consulting with counsel, applicant waived his right  to
a trial by court-martial,  requested  a  personal  appearance  and  did  not
submit a written presentation.

On 8 May 1998, he  was  found  guilty  by  his  commander  who  imposed  the
following punishment:  Reduction to the grade of senior airman, with  a  new
date of rank of 8 May 1998, a forfeiture of $617.00 pay per  month  for  two
months, and 45 days extra duty.

Applicant did appeal the punishment; however, the appeal  was  denied  on  7
June 1998.  The Article 15 was filed in  his  Unfavorable  Information  File
(UIF).

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AIR FORCE EVALUATION:

The Associated Chief, Military Justice Division,  AFLSA/JAJM,  reviewed  the
application and states that  the  applicant  was  represented  by  qualified
military defense counsel and then by civilian defense  counsel  of  his  own
choice throughout the Article 15, UCMJ proceedings before his commander  and
during the appeals process.  There is no evidence  that  the  applicant  was
misled  concerning  any  aspect  of  the  proceedings  (including  potential
punishment).   After  reviewing  the  evidence,  the  commander  found   the
applicant committed  the  offenses  alleged.   Further,  the  applicant  has
admitted his guilt herein.

Applicant asserts he suffered double punishment  because  he  was  denied  a
pending  promotion  to  technical   sergeant   following   the   nonjudicial
punishment action.  They defer to Personnel to address any  specific  issues
as to that administrative action governed by AFI 36-2502,  Airman  Promotion
Program.  They do note however,  that  Air  Force  promotion  policy  is  to
select individuals for promotion based on potential to  serve  in  the  next
higher grade.   Only  the  best  should  be  promoted  due  to  the  limited
vacancies in the higher grades.  The responsibility for a  quality  enlisted
force  rests  with  the  prudent  judgement  of  the  commanders  who   make
recommendations for promotion.  Normal practice  is  to  withhold  promotion
while an individual is under investigation for an offense.   In  this  case,
the commander concluded that the applicant’s conduct fell far short  of  the
standards the military demands of its members,  particularly  those  trusted
to serve as noncommissioned officers.  As the  commander  concluded  he  was
not fit to remain a staff sergeant, loss of his potential promotion  to  the
next higher grade was a logical and inevitable consequence of his theft.

Given the degree to which the applicant failed to meet his  responsibilities
as an NCO, his loss of NCO status by reduction to senior  airman  and  other
punishments were well within legal limits and appropriate for  the  offenses
committed.  The applicant has provided no  evidence  of  a  clear  error  or
injustice related to the nonjudicial punishment proceedings.

Set aside should only be utilized where, under all the circumstances of  the
case, the punishment has resulted in a clear injustice.   That  is  not  the
case here.  The evidence presented  by  the  applicant  is  insufficient  to
mandate the relief requested, and does not demonstrate  an  equitable  basis
for relief.  They recommend the Board deny the applicant’s request.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  reviewed  the  evaluation  and  states  that  the  evaluation
indicates he was represented by a qualified military  defense  attorney  and
by a civilian attorney  throughout  the  Article  15  proceedings.   Neither
attorney had received any of the evidence against him and  the  only  advice
the military attorney gave him was to not say anything at all; nor  did  she
make an appearance before his commander.  This is why  he  released  her  to
hire a civilian attorney.  The civilian attorney he hired did  not  make  an
appearance  before  his  commander  and  only  wrote  a  letter  asking  for
leniency.  To say that he was fairly represented  is  quite  debatable.   He
has never been through an Article 15 proceeding  and  was  quite  unfamiliar
with  the  process.   Had  he  been  more  familiar  and   understood   that
nonjudicial punishment means the commander has  complete  control  over  the
punishment imposed set within the guidelines established by AFI  51-202,  he
would have definitely done things differently.

As far as the commander reducing his rank to senior airman  was  because  he
felt he was not fit to remain a NCO, then he should have been  removed  from
a leadership position, which he was not.  He maintained  the  same  job  and
responsibilities as he did prior to the  punishment.   He  still  supervised
the same number of people.  He is not trying to  justify  what  he  did  was
right, he is trying to put this incident  into  perspective.   His  previous
commander took away eleven years of his career.  The effect  that  this  has
on his career is profound.  He has lost a huge amount of  time-in-grade  and
a considerable sum of money.  He does not understand how a mistake  such  as
this, that couldn’t possibly be perceived  as  premeditated,  could  warrant
this type of punishment.

Applicant's complete response is attached at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

The Chief, Inquiries/AFBCMR Section, Enlisted Promotion &  Military  Testing
Branch, AFPC/DPPPWB, also reviewed  the  application  and  states  that  the
applicant was tentatively  selected  for  promotion  to  technical  sergeant
(TSgt) during cycle 97E6 per Promotion Sequence Number  (PSN)  6611.0  which
would have been incremented 1 May 1998.  The projected promotion was  placed
in a withhold status.  He was reduced from staff sergeant (SSgt)  to  senior
airman (SrA) effective 8 May 1998 and again promoted to  SSgt  on  1  August
2000.

A review of  the  applicant’s  records  reflects  that  he  was  tentatively
selected for promotion  to  TSgt  during  cycle  97E6  as  indicated  above.
However, the Headquarters  Air  Force  (HAF)  Personnel  Data  System  (PDS)
indicates his Promotion Eligibility Status (PES) code was updated  in  April
1998 to a “B.”  This indicated a member whose promotion  is  in  a  withhold
status while under investigation (military/civil) in accordance with AFI 36-
2502, Airman Promotion Program,  Table  1.2,  Rule  6.   The  commander  was
within his authority to withhold the promotion until  the  investigation  or
inquiry  was  completed.   After  reviewing  the  evidence,  the   commander
determined the applicant committed the alleged offense.  On 8 May 1998,  the
applicant received the Article 15 with the reduction to the  grade  of  SrA.
It rendered him ineligible for promotion to TSgt.  AFLSA/JAJM  has  reviewed
the  case  and  determined  the  evidence  presented  by  the  applicant  is
insufficient  to  mandate  the  relief  requested.   They  defer  to   their
recommendation.  However, should the AFBCMR void the Article  15,  it  could
reinstate his promotion to TSgt for cycle 97E6.  The  applicant  would  have
been  promoted  1  May  1998,  provided  he  was  otherwise   eligible   and
recommended by his commander.  They recommend  the  applicant’s  request  to
have his promotion reinstated to TSgt be denied.  The Commander  was  acting
within his authority when he elected to  withhold  the  promotion  until  an
investigation  was  completed  and  imposing  punishment  under  Article  15
resulting in demotion.

A complete copy  of  their  evaluation,  with  attachment,  is  attached  at
Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 31 August 2001, a copy of the Air Force evaluation 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.

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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 the  punishment  imposed
upon him under Article 15, Uniform Code of Military Justice (UCMJ), dated  8
May 1998 be set aside.  Applicant’s contentions are duly noted; however,  we
find no evidence that the Article 15 action taken against the applicant  was
in error or  unjust.   In  this  respect,  the  applicant  was  offered  and
accepted nonjudicial punishment  for  larceny  for  which  he  admitted  his
guilt.  Therefore, we believe the commander was  in  the  best  position  to
weigh the evidence in the case and judge  the  applicant’s  credibility  and
demeanor throughout the proceedings before rendering  his  decision.   There
is no indication the  commander  abused  his  discretionary  authority  when
assessing the merits of the case.  In view of  our  determination  that  the
Article 15 was appropriate, the applicant’s contention that  it  was  unfair
that he lost his pending promotion is a moot issue.   In  this  regard,  the
applicant rendered himself ineligible for promotion  when  he  received  the
Article 15 with its reduction in grade to airman first class.   In  view  of
the foregoing, we agree with the opinions and  recommendations  of  the  Air
Force, in particular, the Associate Chief, Military  Justice  Division,  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.

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The following members of the Board considered this application in  Executive
Session on 4 October 2001, under the provisions of AFI 36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. William Edwards, Member
                  Mr. E. David Hoard, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 February 2001, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 20 July 2001.
   Exhibit D.  Letter, SAF/MIBR, dated 3 August 2001.
   Exhibit E.  Letter, Applicant, dated 24 August 2001, w/atchs.
   Exhibit F.  Letter, AFPC/DPPPWB, dated 23 August 2001, w/atch.
   Exhibit G.  Letter, SAF/MIBR, dated 31 August 2001.




                                RICHARD A. PETERSON
                                Panel Chair