RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-01536
            INDEX NUMBER:  126.00

      XXXXXXXXXXXXX    COUNSEL: Gary R. Meyers

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment, Article 15, imposed on him on 3 Mar  99  be
set aside or expunged from his record.

He be restored to the rank of technical sergeant (TSgt) as of the  date
of Article 15 or, in the alternative, as of the date relief is  granted
by the Board.

If his rank is restored, he be granted full back pay and allowances and
credit for time in grade for pay, promotion, and retirement purposes.

_______________________________________________________________

APPLICANT CONTENDS THAT:

His commander punished him for actions against his wife when, in  fact,
he was the victim of actions by his wife against him.

He violated a “no contact” order due to concern over the welfare of his
minor children.

The punishment imposed on him has caused an undue hardship.

The commander that imposed the Article 15  examined  and  considered  a
prior Article 15 he received and failed to provide him a copy  and  all
other evidence he considered in deciding whether to impose  nonjudicial
punishment.

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

_______________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date  is  11  Jan
82.  He has an established Date of Separation of 15 Feb 02.  On  3  Mar
99, his commander offered him nonjudicial punishment for  violating  an
order not to have any contact with his wife in violation of Article 92,
UCMJ, and for assaulting his wife by striking her in the face with  his
hand in violation of Article 128, UCMJ.  After consulting with counsel,
applicant waived  his  right  to  demand  trial  by  court-martial  and
accepted nonjudicial punishment proceedings.  He requested  to  make  a
personal appearance and indicated that  he  was  submitting  a  written
presentation.  On 11 Mar 99, the commander  found  that  the  applicant
committed the offense and imposed punishment consisting of reduction to
the grade of staff sergeant and forfeitures of $922.00 of pay per month
for two months.  The forfeitures were suspended on  the  condition  the
applicant continue attending anger management counseling.   On  16  Mar
99, the applicant elected not to appeal the punishment.  The  remaining
relevant facts pertaining to this case are found in the  advisory  done
by the Air Force Office of Primary Responsibility at Exhibit C.

_______________________________________________________________

AIR FORCE EVALUATION:

The Air Force Legal Services Agency  recommends  that  the  applicant’s
request be denied.

Applicant’s contention that  there  was  no  evidence  to  support  the
commander’s conclusion that he committed the offense is without  merit.
By electing  to  resolve  the  allegation  in  the  nonjudicial  forum,
applicant placed the responsibility to decide whether he had  committed
the offenses with his commander.  The commander had to  weigh  all  the
evidence, including the credibility of the various witnesses, and  make
his decision.

In regards to the applicant’s claim of procedural error due to his  not
being given a copy of  his  prior  Article  15,  his  military  defense
counsel was correct in stating in a memorandum supporting a  set  aside
request that the Manual for  Courts-Martial  gives  the  applicant  the
right  to  examine  documents  upon  which  the  nonjudicial  authority
intended to rely.  His service records were some  of  those  documents.
There is no evidence that the applicant or  his  defense  counsel  were
denied the right to review his records.  Indeed, the  applicant  states
that when he went to see his personnel records,  he  saw  the  previous
Article 15 and that it was given to him.   Applicant’s  counsel  is  in
error when she asserts that  the  commander  considered  an  incomplete
record.  Supporting documents for an Article 15 are only  kept  in  the
base legal office for 3 years.  After the appeal time has run, only the
Article 15 is kept.  The Article 15 that was considered is the complete
record.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB evaluated this application in regards to restoration of the
applicant’s grade.

The applicant was eligible to test for promotion to TSgt for  the  01E6
cycle (promotions effective Aug 01-Jul  02).   However,  the  Personnel
Data System indicates that the applicant refused to test in  accordance
with AFI 36-2502, Airman Promotion Program, Table 1.1,  Rule  8,  which
automatically rendered him ineligible for promotion.  If he had  tested
and became a select for promotion to TSgt, his High  Year  Tenure  date
would have been extended two more years.

The complete evaluation is at Exhibit D.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to Counsel on 7  Dec
01 for review and comment within 30 days.  To date, a response has  not
been received.

_______________________________________________________________

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  note  the  strong
support the applicant has from his present commander to set  aside  the
Article 15; however, we do not find  any  error  or  injustice  in  the
actions of the commander that imposed the punishment.   In  regards  to
the commander’s consideration of the previous Article  15  received  by
the applicant in 1993, we agree with AFLSA/JAJM and do  not  find  that
the commander acted  improperly.   We  also  note  that  the  applicant
admitted to the actions for which he was  punished  and  chose  not  to
appeal the Article 15 punishment at the time it was imposed.  While  we
acknowledge the financial impact of the Article 15 on the applicant, it
is clear that the commander fully  considered  this  in  deciding  what
punishment to impose.  Upon retirement, the applicant may  be  provided
future relief should the Secretary of the Air Force  Personnel  Council
determine that he should be advanced to the highest grade held after  a
combined 30 years of active and retired service.  If it  is  determined
that he should not be advanced in grade,  the  applicant  may  want  to
consider another appeal to this board.  Therefore, in  the  absence  of
evidence to the contrary, we find  no  compelling  basis  to  recommend
granting the relief sought in 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 issues 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 10 January 2002, under the provisions of  AFI  36-
2603:

      Mrs. Barbara A. Westgate, Chair
      Mr. Bendict A. Kausal, Member
      Mr. Thomas S. Markiewicz, Vice Chair

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 May 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 16 Oct 01.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 20 Nov 01,
                W/atchs.
    Exhibit E.  Letter, SAF/MIBR, dated 7 Dec 01.




                                   BARBARA A. WESTGATE
                                   Chair