RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-00307
            INDEX CODE:  131.09

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement pay grade be changed from E-6 to E-7.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reduction in his rank was based on unsubstantiated allegations  of
improprieties regarding his  use  of  government  properties  for  his
personal use and in connection with his legitimate off-duty employment
as a police officer.  Therefore, it was unjust.

In support of his appeal, the applicant provided a personal statement,
and a copy of his nonjudicial punishment under Article 15 and  related
documentation, to include supportive statements.

Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted his initial enlistment  in  the  Regular  Air
Force on 4  Nov  76.   Prior  to  the  events  under  review,  he  was
progressively promoted to the grade of master sergeant.

Applicant's  Airman  Performance  Report/Enlisted  Performance  Report
(APR/EPR) profile since 1987 follows:

      PERIOD ENDING    EVALUATION
       2 Aug 87        9
       2 Aug 88        9
       2 Aug 89        9
       2 Aug 90        5 (EPR)
      10 Jun 91        5
      29 Jan 92        5
      29 Jan 93        5
      29 Jan 94        5
      29 Jan 95        5
      29 Jan 96        5
      29 Jan 97        5

On 10 Oct 97, the applicant’s  commander  notified  him  that  he  was
considering whether he should be punished under  Article  15,  Uniform
Code  of  Military  Justice  (UCMJ)  based  on  allegations  that  the
applicant violated Article 92, in that he  did,  on  divers  occasions
between on or about 1 Nov 96, and on or  about  28 Feb 97,  violate  a
lawful general regulation, to wit:  Department of  the  Defense  (DOD)
Directive 5500.7-R, paragraph 2635.704(a),  by  wrongfully  using  and
allowing the use of government property, to  wit:   computers,  office
supplies,    data    processing    and     reproduction     equipment,
telecommunications equipment, in connection with his employment by the
Sugar Creek Police Department; he did, on divers occasions between  on
or about 1 Dec 95, and on or about 20 Feb 97, violate a lawful general
regulation, to wit:  Department of the Defense (DOD) Directive 5500.7-
R, paragraph 2635.704(a), by wrongfully using government property,  to
wit:  a router, tenets,  mallets,  sledge  hammers,  cordless  drills,
battery chargers, drill  bits,  a  palm  stapler,  iron  tent  stakes,
leather gloves, a Porter-Cable belt sander, a Skil orbital sander  and
cargo straps for his personal use or in connection with his employment
by the Sugar Creek Police Department;  he  did,  on  divers  occasions
between on or about 1 Sep 96, and on or about 31  Dec  96,  violate  a
lawful general regulation, to wit:  Department of  the  Defense  (DOD)
Directive 5500.7-R, paragraph  2635.705(b),  by  wrongfully  directing
and/or  coercing  subordinates  to  use  official  time   to   perform
activities not required in the performance of  their  official  duties
nor authorized by law or regulation, to wit:   directing  a  technical
sergeant to use his official duty time to perform  computer  work  for
the Sugar Creek Police Department, and directing two  staff  sergeants
to use their official duty time  to  design,  acquire,  transport  and
assemble furniture for  the  Cincinnati,  Ohio,  office  of  the  Drug
Enforcement Administration; he did, on diverse occasions between on or
about 1 Sep 96, and on or about 28 Feb 97, violate  a  lawful  general
regulation, to wit:  Department of the Defense (DOD) Directive 5500.7-
R, paragraph 2635.705(a), by wrongfully using official time to perform
activities not required in the performance of his official duties  nor
authorized by law or regulation to wit:  using his official duty  time
to engage in activities associated with his employment with the  Sugar
Creek Police Department, and using his official duty time  to  design,
acquire, transport and assemble furniture for  the  Cincinnati,  Ohio,
office of the Drug Enforcement  Administration;  he  was,  on  diverse
occasions between on or about 1 Jan 93, and on or  about  31  Dec  96,
derelict in the performance of his duties in that he willfully  failed
to perform official duties during his military duty hours  as  it  was
his duty to do, to wit:  that he willfully performed work  related  to
his employment with the Sugar Creek Police Department during  military
duty hours, willfully  slept  during  his  military  duty  hours,  and
willfully engaged in frequent, protracted,  personal  telephone  calls
during his military duty hours; he did, on divers occasions between on
or about 1 Aug 95 and on or about 30 Jun 97, fail  to  obey  a  lawful
general regulation, to wit:  AFI 31-207, paragraph 2.11, by carrying a
concealed firearm without proper authorization; and, that he  violated
Article 128, in that he did, between on or about 1 Aug 94  and  on  or
about 31 Dec 94, unlawfully push a staff sergeant on the upper part of
his body with his hands causing the staff sergeant to  fall  backwards
over a chair and onto the floor.

The applicant  was  advised  of  his  rights  in  the  matter.   After
consulting legal counsel, the applicant waived  his  right  to  demand
trial by court-martial, accepted  the  nonjudicial  proceedings  under
Article 15, and submitted written comments for review.  On 27 Oct  97,
after  considering  the  matters  presented  by  the  applicant,   the
commander found that the applicant had committed one or  more  of  the
offenses alleged and imposed punishment consisting of a reduction from
the grade of master sergeant  to  the  grade  of  technical  sergeant,
forfeiture of $1020.00 pay per month for two months, and  20  days  of
extra duty.  The applicant appealed the punishment.  An AF Form  3212,
Record of Supplementary Action Under Article 15, UCMJ, dated 3 Nov 97,
indicated that the punishment of forfeiture of $1020.00 pay per  month
for two months was mitigated to forfeiture of $250.00  pay  per  month
for two months.  The applicant  acknowledged  that  he  had  seen  the
action taken on his appeal.  On 3 Nov 97, legal authority  found  that
the nonjudicial proceedings under Article 15 were legally sufficient.

On 6 Jan 98, the Secretary of the Air Force found that  the  applicant
did not serve  satisfactorily  in  any  higher  grade  than  technical
sergeant and that he would not be advanced  under  the  provisions  of
Section 8984, Title 10, United States Code.

On 31 Jan 98, the applicant was relieved from active duty and  retired
for length of service, effective 1 Feb 98, in the grade  of  technical
sergeant.  He was credited with 21 years, 2 months,  and  27  days  of
active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  indicated  that  with  the  exception  of   amending   two
specifications and deleting the assault specification, they  recommend
denial.  According to AFLSA/JAJM, the Article 15 was well founded  and
there  was  more  than  sufficient  material  to  hold  the  applicant
accountable for his actions.  Even though  the  applicant  appealed  a
portion of the punishment, he did not  appeal  the  reduction  or  the
factual   determination   that   punishment   was   appropriate.    In
AFLSA/JAJM’s view, he should not be heard  to  do  so  now  three-plus
years after the fact.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPRRP  recommended  denial.   AFPC/DPPRRP  indicated   that   in
accordance with Section  8961,  Title  10,  United  States  Code,  the
applicant was correctly retired in the  grade  of  technical  sergeant
(TSgt), which was the grade he held on the date of his retirement.

According to AFPC/DPPRRP, the law  which  allows  for  advancement  of
enlisted members of the Air Force,  when  their  active  service  plus
service on the retired list totals 30 years, is very specific  in  its
application and intent.  On 6 Jan 98, the SAFPC made the determination
that the applicant did not serve satisfactorily on active duty in  any
grade higher than TSgt.  This determination is final for all  purposes
of law.  There are no other provisions of law  that  would  allow  for
advancement of enlisted members.  All criteria of the  pertinent  laws
(Sections 8961 and 8964) have been met in this regard and no error  or
injustices  occurred  in  his  retirement   grade   determination   or
advancement action.

A complete copy of the AFPC/DPPRRP evaluation, with attachments, is at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  15
Nov 01 for review and response.  As of this date, no response has been
received by this office (Exhibit E).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice.

      a.  The  evidence  of  record  reflects  that  as  a  result  of
nonjudicial punishment under Article 15,  the  applicant  was  reduced
from the grade of master sergeant to technical  sergeant.   Subsequent
to his receipt of the Article 15, the Secretary of the Air Force found
that he had not served satisfactorily in any higher  grade  and  would
not be advanced to the highest grade he held.  With the  exception  of
the recommendation by JAJM to amend the portions  of  the  Article  15
pertaining to the fifth and six specifications under Article 92 and to
delete the portion of the Article 15 pertaining to  the  specification
under Article 128,  we  find  no  evidence  which  has  shown  to  our
satisfaction that the Article 15 punishment was improper or  an  abuse
of discretionary authority.  Therefore, we are not inclined to disturb
the discretionary judgment of the commanding officer by  removing  the
Article 15 from the applicant’s records.  Accordingly, the applicant’s
request that his retirement pay grade be changed from E-6  to  E-7  is
not favorably considered.

      b.  Because of the nonjudicial punishment under Article 15  that
reduced him in grade, the applicant has had to retire in the grade  of
technical sergeant rather than master sergeant.  As a result,  it  has
already cost him $7,818 in retired pay since 1998.  Excluding any cost
of living increases that he may be entitled  to,  he  will  lose  over
$10,000 by the time he reaches 30 years  of  service,  and  more  than
$60,000 over  a  normal  lifetime.   Furthermore,  we  note  that  the
applicant had an  outstanding  Air  Force  career  and  prior  to  the
Secretarial finding, with the exception of the infractions  which  led
to the imposition of the Article  15,  he  had  performed  his  duties
faithfully and well in the grade of master sergeant for  eight  years.
In view of all these considerations, we believe that the  Article  15,
which  is  intended  to  be  corrective  in  nature,  was   sufficient
punishment for the applicant’s misconduct.  Therefore,  to  not  allow
the applicant to at least advance to the highest grade he  held  after
he completes the required service, would, in our view, be  excessively
harsh, and therefore, unjust.  Such action,  in  our  view,  would  be
proper and fitting relief.  Further, we accept  JAJM’s  recommendation
to amend two  specifications  under  Article  92  and  to  delete  one
specification under Article 128.  Accordingly, we recommend  that  the
applicant’s records be corrected as set forth 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 portion of the nonjudicial punishment under  Article 15,
imposed on 27 Oct 97, pertaining  to  the  fifth  specification  under
Article 92 be amended to read “on divers occasions between on or about
10 Oct 95,” rather than “1 Jan 93.”

      b.  The portion of the nonjudicial punishment under  Article 15,
imposed on 27 Oct 97,  pertaining to  the  sixth  specification  under
Article 92 be amended to read “on divers occasions between on or about
10 Oct 95,” rather than “1 Aug 95.”

      c.  The portion of the nonjudicial punishment under  Article 15,
imposed on 27 Oct 97, pertaining to the  specification  under  Article
128 be deleted.

      d.  The  Secretary  of  the  Air  Force  found  that  he  served
satisfactorily in the higher grade of master sergeant (E-7) within the
meaning of Section 8964, Title 10, United States  Code,  and  directed
the member’s advancement to that grade on the retired  list  effective
the date of completion of all required service.

_________________________________________________________________


               The following members  of  the  Board  considered  this
application in Executive Session on 9 Jan 02, under the provisions  of
AFI 36-2603:

      Mr. Gregory H. Petkoff, Panel Chair
      Mr. Thomas J. Topoloski, Member
      Mr. Clarence D. Long III, Member

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

     Exhibit A.  DD Form 149, dated 29 Jan 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 18 Sep 01.
     Exhibit D.  Letter, AFPC/DPPRRP, dated 13 Nov 01, w/atchs.
     Exhibit E.  Letter, SAF/MRBR, dated 15 Nov 01.




                                   GREGORY H. PETKOFF
                                   Panel Chair









AFBCMR 01-00307




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 portion of the nonjudicial punishment under
Article 15, imposed on 27 Oct 97, pertaining to the fifth
specification under Article 92 be amended to read “on divers occasions
between on or about 10 Oct 95,” rather than “1 Jan 93.”

                       b.  The portion of the nonjudicial punishment
under Article 15, imposed on 27 Oct 97,  pertaining to the sixth
specification under Article 92 be amended to read “on divers occasions
between on or about 10 Oct 95,” rather than “1 Aug 95.”

                       c.  The portion of the nonjudicial punishment
under Article 15, imposed on 27 Oct 97, pertaining to the
specification under Article 128 be deleted.

                       d.  The Secretary of the Air Force finds that
he served satisfactorily in the higher grade of master sergeant (E-7)
within the meaning of Section 8964, Title 10, United States Code, and
directs the member’s advancement to that grade on the retired list
effective the date of completion of all required service.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency