RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  01-01365
                 INDEX CODE:  134.02
            COUNSEL:  NONE

                 HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

a.  His deceased daughter's nonjudicial punishment under Article 15  of  the
Uniform Code of Military Justice (UCMJ) be set aside and all  references  to
the nonjudicial punishment and special court-martial proceedings be  removed
from her records.

b.  Any and all adverse actions as a result of the nonjudicial  proceedings
be reversed.

c.  A letter of apology be sent to the decedent's daughter.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a letter addressed to  his  Senator,  the  applicant  contends  that  his
daughter was wrongfully accused of cheating on an end-of-course exam  by  an
instructor who called himself a male chauvinist and stated that females  did
not belong in the military.  She was the victim of  mental,  emotional,  and
verbal abuses as well as physical threats of bodily harm from  her  military
training instructor that were directed at her and women in general.

Her chain-of-command released everyone that was in correctional  custody  at
0800 on the day of her accident to allow for driving time in order  to  make
it home for Christmas.  However, she was  not  released  until  1300.    The
morning of her funeral, her commander called and stated that if  her  father
would send a letter agreeing not  to  pursue  matters  concerning  the  UCMJ
proceedings he would restore her rank.

In support of his appeal, the applicant  provided  documents  regarding  his
daughter's military career.  His complete submission, with  attachments,  is
at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member enlisted in the Regular Air Force on 3 Aug 83.  She  was
progressively promoted to the grade of senior airman,  having  assumed  that
grade effective and with a date of  rank  of  3  Aug  86.   On  15  Apr  87,
applicant was separated from  the  Regular  Air  Force  under  the  strength
reduction program.  She served 3 years, 8 months,  and  13  days  on  active
duty.  On 18 May 88, she enlisted in the Air Force Reserve.  On 22  Dec  89,
she was killed in an automobile accident while on leave from  her  temporary
duty location.

The remaining relevant facts pertaining to this application, extracted  from
the  deceased  member's  military  records,  are  contained  in  the  letter
prepared by the appropriate office of the Air Force at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  reviewed  applicant's  requests  and  recommends  denial.   JAJM
states that while attending Jet  Engine  Mechanic  School,  the  member  was
accused of cheating on a test.  She allegedly wrongfully transposed  on  her
test answer sheet portions of the answers to questions from Part  I  of  the
test (which was closed book)  so  that  these  portions  could  be  used  in
conjunction with technical orders made available to her during  Part  II  of
the test (open book) to assist her in answering questions in Part I  of  the
test.

On 1 Sep 89 she was offered nonjudicial punishment for violation of  Article
92, UCMJ which was modified to read that she violated AFR  30-17,  paragraph
16 by copying without proper authority on her test answer sheet portions  of
answers from a Controlled Item.   After  consulting  counsel,  she  demanded
trial  by  court-martial.   An  additional  charge  and  specification   was
referred for failure to obey a lawful order not to  erase  anything  on  her
answer sheet.  On 12 Dec 89,  applicant  changed  her  mind  and  agreed  to
accept nonjudicial punishment proceedings related to the original charge  in
violation of Article 92.  The additional charge was withdrawn.  She  made  a
personal  appearance  before  her   commander   and   provided   a   written
presentation on her own behalf.  After  reviewing  the  evidence  presented,
her commander found that she  committed  the  offense  alleged  and  imposed
punishment consisting of 14 days correctional custody to  begin  on  13  Dec
89, reduction to the grade of airman first class, and forfeiture of  $200.00
pay.  She appealed her punishment but her appeal was denied.

On 29 Dec 89,  her  commander  set  aside  the  portion  of  her  punishment
reducing her in grade to airman first class, reinstating her rank to  senior
airman.

JAJM states that the punishment imposed  was  appropriate  for  the  offense
committed and there is insufficient evidence to support the allegation  that
she was sexually harassed.  In this  case  the  commander  weighed  all  the
evidence, including the credibility of the various witnesses, and  concluded
that she committed the offense alleged.  While different  fact  finders  may
have come to a different conclusion, his findings are neither arbitrary  nor
capricious and should not be disturbed,  particularly  12  years  after  the
misconduct occurred and was resolved in a timely manner while  evidence  and
witnesses were available.

It is important to note  that  the  commander  posthumously  set  aside  the
portion of the punishment that called for reduction in  grade  and  did  not
set aside the entire nonjudicial punishment  action.   A  set  aside  should
only be granted when the evidence clearly demonstrates an error or  a  clear
injustice.  The evidence presented is insufficient to warrant setting  aside
the Article 15 action and  does  not  demonstrate  an  equitable  basis  for
relief.  Although her death  is  tragic,  there  is  no  nexus  between  her
nonjudicial punishment action and the accident.

The JAJM evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded and states that he and his wife traveled to Illinois  to
attend their daughter's graduation ceremony but instead ended up seeking  an
explanation of  the  charges  against  her.   When  he  went  to  visit  his
daughter's first sergeant, he initially ignored  their  presence  and  later
informed them of their daughter's administrative status but did not  explain
why.  When he asked  the  first  sergeant  why  no  charge  sheet  had  been
prepared, he replied that since it was late in the day, they  should  return
in the morning.  The next day they visited with their daughter's  commander.
 During the discussion it became clear that she had already been  convicted.
 Comments made by the first sergeant and the commander led the applicant  to
question the impartiality of the commander.   The  first  sergeant  informed
him that the reason the charge sheet had not been prepared  was  because  of
over-riding concern that she  be  brought  up  on  charges  in  a  fair  and
impartial manner.  He met with the Reserve  Liaison  officer  and  was  told
that the Article 15 would be served the following day.   The  following  day
they went to the orderly room at 0750 to wait for  the  first  sergeant  and
commander.  The first sergeant showed up at  1100  and  told  them  that  he
forgot he had a meeting that morning and that the Article 15  had  not  been
prepared.  The Reserve Liaison officer told  him  that  the  first  sergeant
wanted  to  wait  until  after  the  commander  was  promoted  to  major  to
accomplish the Article 15 so that it  would  be  issued  by  a  field  grade
officer.

In further support of his request, applicant provided a personal  statement,
a chronology of events, a Commander Directed  Urinalysis  letter,  documents
associated with his daughter's Article 15  punishment,  a  letter  from  his
daughter, his daughter's  score  sheet,  and  letters  from  his  daughter's
classmates.  His complete submission, with attachments, is at Exhibit E.

_________________________________________________________________
THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of an injustice that would warrant  corrective  action.   In  this
respect, after a thorough review  of  the  evidence  of  record  it  is  our
opinion that evidence has been provided which would lead us to believe  that
the decision to  impose  nonjudicial  punishment  may  have  been  based  on
factors other than the issue at hand and that  the  punishment  imposed  was
excessively  harsh.   In  this  regard,  it  appears  that  because   of   a
contentious relationship between the deceased member  and  her  instructors,
the incident was poorly handled and as  a  result,  led  to  a  sequence  of
events that culminated in nonjudicial punishment  being  issued.   Based  on
the evidence of record, we are not convinced that the applicant  cheated  on
the test in question.  In this regard, it does not appear logical  that  she
would want to cheat on an open book test.  We believe that her  actions  may
have been caused by a misunderstanding of  the  instructions  provided.   In
light of the above, it is our opinion that it would be an injustice for  her
family to  continue  to  suffer  the  adverse  and  emotional  effects  this
incident has caused.  Therefore, we believe that removal of the  nonjudicial
punishment from the former member's records  would  be  an  appropriate  and
fitting relief based on the evidence provided.

4.     Applicant's request pertaining to  court-martial  proceedings  and  a
letter  of  apology  were  noted.   Since  she  accepted   the   nonjudicial
punishment, no court-martial proceedings exist in the  record.   In  regards
to the request that a letter of apology be sent to the  decedent's  daughter
we are compelled to note that since this Board's charter extends  solely  to
the correction of records, favorable consideration of that  portion  of  the
request is not  possible.   We  do  however  want  to  express  our  deepest
sympathies to the deceased member's family and thank them  for  her  service
to the Nation.  In addition, we commend the family for bringing this  matter
to the Board, allowing us the opportunity to correct the record.

5.     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 issues  involved.   Therefore,  the  request
for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to the FORMER MEMBER be corrected to show that  the  nonjudicial  punishment
under Article 15,UCMJ, initiated on  1 September  1989  and  imposed  on  12
December 1989, be, and hereby is, set aside and expunged from  her  records,
and all rights, privileges and property of which she may have been  deprived
be restored.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  01-01365  in
Executive Session on 5 Sep 02, under the provisions of AFI 36-2603:

      Mr. Albert F. Lowas, Jr., Panel Chair
      Mr. Christopher Carey, Member
      Ms. Ann-Cecile McDermott, Member

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

     Exhibit A.  DD Form 149, dated 15 Apr 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 15 May 02.
     Exhibit D.  Letter, SAF/MRBR, dated 29 May 02.
     Exhibit E.  Letter, Applicant, not dated, w/atchs.




                             ALBERT F. LOWAS, JR.
                                             Panel Chair

AFBCMR 01-01365




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 APPLICANT, be corrected to show that the nonjudicial  punishment
under Article 15, UCMJ, initiated on 1 September  1989  and  imposed  on  12
December 1989, be, and hereby is, set aside and expunged from  her  records,
and all rights, privileges and property of which she may have been  deprived
be restored.








  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency