RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00452

            COUNSEL:  DAVID C. CORY

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment imposed upon her under Article 15,  Uniform  Code
of Military Justice (UCMJ), on 7 December 1997, be set aside  and  her  rank
of technical sergeant be restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She is innocent of  the  charge  that  she  signed  a  false  document,  the
reduction in grade is unduly harsh, and during the  Article  15  proceedings
she was denied her right to review all of the evidence against her.

The applicant states that she never received any disciplinary action  during
her 11 years in the Air  Force  Reserve  (AFRes).   She  has  had  no  other
problems, either on or off duty.  The commander who imposed the  Article  15
had only recently arrived at the unit, and was  not  as  familiar  with  her
positive record and achievements as her prior commanders.

In regard to the incident leading to the Article 15,  the  applicant  states
that while she did  leave  her  workplace  while  on  orders  (manday),  she
returned later that day to fulfill her obligations.  She filled in Block  46
of the AF Form 938 to reflect that  she  worked  a  six-hour  manday  on  14
September 1997, which was the accurate number of hours she worked that  day.
 In retrospect, she should have made some annotation  to  reflect  that  the
six hours were not consecutive.  Regarding Blocks 40c and 40d, she  did  not
fill in the hours she left work and arrived at home  (1600  hours  and  1630
hours respectively).  In addition, she did not ask or tell  anyone  to  fill
in those blocks.  She does not know who filled  in  this  information.   Her
former and current attorneys have shown that the commander and legal  office
at Keesler AFB, which processed the Article 15,  denied  her  the  right  to
review all of the evidence being held against her.



In support of her appeal, applicant submits a notarized statement  from  her
former defense counsel and Circuit Defense Counsel.  The applicant’s  former
defense counsel states that applicant’s due  process  rights  were  violated
when she  was  denied  the  right  to  review  the  allegedly  incriminating
evidence which the  commander  and  servicing  legal  office  had  in  their
possession.

The Circuit Defense Counsel states that he was given two  copies  of  an  AF
Form 938, along with a printout of  an  apparent  time  card  from  a  local
civilian  employer  where  the  applicant   apparently   worked   part-time.
However, he  was  given  no  other  evidence.   During  the  course  of  his
representation of  the  applicant,  he  learned  that  a  commander-directed
investigation/inquiry had apparently been completed  regarding  the  subject
allegation against the applicant; however, he never received a copy.

In  further  support  of  the  appeal,  applicant  also  submits   character
reference  letters,  certificates  of  achievements,  the  Article  15   and
counsel’s letter to the 403rd WG/JA requesting applicant’s file(s).

The applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving in the AFRes in the grade of staff  sergeant.


On 7 December 1997, the applicant was notified of her commander’s intent  to
impose nonjudicial punishment under Article  15,  UCMJ,  for  signing,  with
intent  to  deceive,  an  official  record,  AF  Form   938,   Request   and
Authorization for Active Duty Training/Active Duty  Tour,  on  14  September
1997, which was false in that she did not work at the 403rd  LSS/LGSC  until
1600 hours on such date and was then known by her to be false.

On 11 January 1998, after consulting  with  counsel,  applicant  waived  her
right to a trial by court-martial, did not  request  a  personal  appearance
and submitted a written presentation.   After  considering  the  applicant’s
written presentation,  the  commander  found  she  did  commit  the  alleged
offense and imposed punishment consisting  of  reduction  to  the  grade  of
staff  sergeant.   She  did  not  appeal  the  punishment.   An  Unfavorable
Information File (UIF) was established and the Article 15 filed therein.

_________________________________________________________________
AIR FORCE EVALUATION:

The Chief, Military Personnel Division, Directorate of  Personnel,  reviewed
the application and states that the applicant  did  not  exhaust  her  other
administrative remedies as required by AFI 36-2603, paragraph  3.3,  as  she
did not appeal her nonjudicial punishment, or request other relief from  her
commander such  as  a  mitigation  or  set-aside  action.   The  nonjudicial
punishment was imposed upon her for signing a false official record and  she
has admitted to submitting the document.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluation  and  states  that
applicant originally intended on appealing the Article 15 and later  decided
not to appeal.  The applicant indicated on the  Article  15  on  22  January
1998 that she was hereby withdrawing her decision to appeal.   However,  the
reason she chose not to appeal was because she  had  an  imminent  Permanent
Change of Station (PCS) assignment to a new duty station, and did  not  want
to jeopardize or delay the assignment while an appeal  was  processed.   The
applicant had been placed on administrative hold while the  Article  15  was
being processed.  Once she indicated she did not wish  to  appeal,  she  was
taken off administrative hold.  Upon arriving at  her  new  assignment,  the
applicant did request her new commander set aside the Article  15;  however,
her request was  denied.   Counsel  also  contends  that  at  the  time  the
applicant was being offered the Article 15, her Area Defense  Counsel  (ADC)
was not provided a copy of  the  investigation/inquiry  that  was  conducted
regarding her misconduct.

The applicant’s complete response is attached at Exhibit H.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

An affidavit was received from the 403rd AW/SJA in response to  the  Board’s
request  for  review  and  comments  concerning  counsel’s  contention  that
applicant’s ADC was not provided a copy of  the  investigation/inquiry  that
was conducted regarding the applicant’s misconduct.

The 403rd AW/SJA states that she believed the applicant’s ADC  was  entitled
to be provided with a copy of the evidence against her.  However,  she  does
not believe he was entitled to the entire report, as it was a  protected  IG
investigation under AFI 90-301, Table  2.4,  Rule  7,  involving  fraudulent
practices within  the  403rd  Logistics  Group  orderly  room.  Furthermore,
neither her nor her staff, withheld any evidence from the ADC.

A complete copy of the affidavit is attached at Exhibit L.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A complete copy of  the  evaluation  was  forwarded  to  the  applicant  and
counsel on 19 January 2001 for review and response.   However,  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.  We find no evidence of  error  in
this  case  and  after  thoroughly  reviewing  the  documentation  applicant
submitted in support of her appeal, we do not believe she has suffered  from
an injustice.  Evidence has not  been  presented  which  would  lead  us  to
believe that the nonjudicial punishment, initiated on 7  December  1997  and
imposed on 11 January 1998, was improper.  In cases of this nature,  we  are
not inclined to disturb  the  judgments  of  commanding  officers  absent  a
strong showing of  abuse  of  discretionary  authority.   We  have  no  such
showing here.  The evidence indicates that, during the  processing  of  this
Article 15 action, the applicant was offered every right to  which  she  was
entitled.  She was  represented  by  both  military  and  civilian  counsel,
waived her right to demand trial by  court-martial,  and  submitted  written
matters for  review  by  the  imposing  commander.   After  considering  the
matters she raised, the commander determined that she had committed “one  or
more of the offenses alleged”  and  imposed  punishment.   Counsel  contends
that during  the  Article  15  proceedings,  the  applicant’s  Area  Defense
Counsel was not provided  a  copy  of  the  investigation/inquiry  that  was
conducted regarding the applicant’s misconduct.  However, the  403rd  AW/SJA
has submitted an affidavit indicating that since the applicant was  not  the
subject of the investigation, she was not entitled  to  the  entire  report;
however, her ADC was provided copies of the evidence  developed  during  the
investigation that related  to  the  allegation  in  the  Article  15.   The
applicant has not provided any evidence showing that the imposing  commander
or the reviewing authority abused their discretionary  authority,  that  her
substantial rights were violated during the processing  of  the  Article  15
punishment, or that the punishment exceeded the maximum  authorized  by  the
UCMJ.  Therefore, based on the available evidence  of  record,  we  find  no
basis upon which to favorably consider this application.

4.  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 issue(s) involved.  Therefore, the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

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 8 March 2001, under the provisions of AFI 36-2603:

                       Ms. Patricia D. Vestal, Panel Chair
                       Mr. Joseph A. Roj, Member
                       Mr. Lawrence R. Leehy, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Jan 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
                  SROI, AFRC/IG, dated 21 Oct 97 (withdrawn)
    Exhibit C.  Letter, AFRC/DPM, dated 31 Mar 99, w/atch.
    Exhibit D.  Letter, SAF/MIBR, dated 25 Apr 99.
      Exhibit E.  Letter, Counsel, dated 27 Apr 99, w/atch.
      Exhibit F.  Letter, AFBCMR, dated 27 Apr 99.
      Exhibit G.  Letter, AFBCMR, dated 3 May 99.
      Exhibit H.  Letter, Counsel, dated 14 Jun 99, w/atch.
      Exhibit I.  Letter, AFBCMR, dated 10 Sep 99.
      Exhibit J.  Letter, Counsel, dated 25 Jan 00.
      Exhibit K.  Letter, Applicant, dated 5 Aug 00.
      Exhibit L.  Affidavit, Lt Col Meadows, dated 5 Jan 01.
      Exhibit M.  Letters, SAF/MIBR, dated 19 Jan 01.




                                   PATRICIA D. VESTAL
                                   Panel Chair