RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-01547
            INDEX CODE:  100.03, 126.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonjudicial punishment under Article 15 of the Uniform Code of  Military
Justice (UCMJ) be set aside.

In his rebuttal to the Air Force evaluations, applicant amended his  request
to include that his grade  of  technical  sergeant  be  reinstated  and  his
reenlistment eligibility (RE) code 2X be changed to reflect 1J.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He received Article 15 punishment as a result of allegations made by SSgt E-
--- that he sexually harassed her.  When he was notified  by  his  commander
of his intent to impose Article 15 punishment, he was initially  accused  of
violations under Article 93 and Article 134 of the  UCMJ,  specifically  for
cruelty,  maltreatment,  and  solicitation  of  sexual  favors.   After   he
presented his evidence before the commander, it was determined that  he  was
not guilty of the Article 93 violations but his commander found  him  guilty
of the Article 134 violations.

Evidence he provided to his commander supported his argument that the  dirty
emails, conversations, and jokes were in jest. They were not  one-sided  nor
unwelcomed.  He provided emails that she sent to him that  proved  that  she
was not offended by the joking around.  The Article 134  violation  was  for
an accusation that he  asked  her  to  participate  in  a  threesome.   They
exchanged emails and jokes but  not  once  did  he  or  his  wife  make  any
attempts to carry out this act.  SSgt E---- made her accusations only  after
he had several run-ins with her concerning her repeated disrespect  whenever
he would ask her to do something.  The last of which he made it  clear  that
he was no longer going to be party to her disrespect.   At  that  moment  he
decided that he would discontinue the joking around at work.   She  made  it
appear that he discontinued communicating with her because she rejected  his
advances.  She made it appear that he totally ignored her at work, which  is
not the truth.  He was a 3-level retrainee and she  was  a  skilled  7-level
that he relied on daily for her expertise.  There is no  way  he  could  not
have interacted with her from a professional level.  She failed  to  mention
that he had explained to her that he was not upset with her when  she  asked
him if he was.  He told her that he simply had a lot of work  on  his  plate
and that he was busy preparing for an Article 6 visit and  a  Quality  Force
Review Board, all on top of having to deal with the  fact  that  his  father
was diagnosed with cancer.

Applicant believes that  the  punishment  he  received  is  too  harsh  when
compared to  punishments  received  for  similar  offenses.   Usually  these
offenses  result  in  a  letter  of  reprimand  (LOR)  and  an   unfavorable
information file (UIF) as punishment.  He has served his country  faithfully
and honorably for over 14 years.  As a result of the Article  15  punishment
he became ineligible to reenlist.  His career is a steep price  to  pay  for
not knowing if a person who was  not  offended  to  start  with,  was  later
offended.

In  support  of  his  request  applicant  provided  a  personal   statement,
documents  associated  with  his  Article  15  proceedings,  copies  of  his
performance reports, a printout from the AETC website, an excerpt  from  the
UCMJ, U.S. Army Court of Military Review an  Air  Force  pamphlet,  military
justice statistics; and, an extract from AFI 36-2606, Reenlistment.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force  on
22 Jan 87.   He  was  progressively  promoted  to  the  grade  of  technical
sergeant, having assumed that grade effective and with a date of rank  of  1
Dec 00.

On 1 May 01, applicant was notified  by  his  commander  of  his  intent  to
impose punishment under Article 15 of the UCMJ  for  alleged  violations  of
Articles 93 and 134 of the UCMJ.  Specifically that he on  divers  occasions
maltreated SSgt E---- by  making  deliberate  and  repeated  comments  of  a
sexual nature (Article 93) and that he wrongfully solicited to  SSgt  E-----
to commit an indecent sexual act by engaging in sexual activities  with  him
and his spouse with the intent to gratify his sexual desires (Article  134).
 He was advised of his rights in this matter  and  acknowledged  receipt  on
that same date.  After consulting counsel, he elected not  to  demand  trial
by court-martial and submitted a presentation  on  his  own  behalf  to  his
commander.  After considering  all  the  matters  presented,  his  commander
determined that he did not commit the Article 93 violations but that he  did
commit the Article 134 violations.  His punishment imposed  consisted  of  a
suspended reduction to the grade of staff sergeant, forfeiture of  $227  pay
per month for 2 months, and reprimand.  Applicant  submitted  an  appeal  to
the Article 15 proceedings.  On 17 May 01, the  appellate  authority  denied
his appeal.

On 26 Jul 01, the applicant was notified by his commander of his  intent  to
vacate the suspended reduction  to  staff  sergeant.   The  basis  for  this
action was that he was arrested by local authorities for allegedly  striking
his wife in the face several times with his hand causing her nose  to  bleed
and holding her by the throat against a wall, in violation of  Article  128;
and, on that same date, disorderly, in violation of Article 134.  On 31  Jul
01, after consulting counsel he submitted  a  written  presentation  to  his
commander.   After  reviewing  the   evidence   presented,   the   commander
determined that he had  committed  the  alleged  offenses  and  vacated  the
suspended reduction.

On 24 Aug 01, applicant's supervisor prepared an AF Fm 418  and  recommended
that he not be selected for reenlistment.   The  specific  reasons  for  his
action was that he had received an Article 15 in May 2001, and in  July  his
suspended reduction was vacated for violations of Articles 128  and  134  of
the UCMJ; he had not completed all the requirements for  upgrade  to  his  5
skill level as a Paralegal; and that his misconduct  occurred  on  duty,  in
uniform, and in his duty section.  On 9  Feb  01,  his  commander  concurred
with the recommendation and rendered him ineligible for reenlistment.

On 17 Sep 01, applicant was separated from the Air Force for  completion  of
required serviced with service characterized as honorable.   He  was  issued
and RE code of "2X."  He completed 14  years,  7  months,  and  26  days  of
active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant’s request and recommends denial.  JAMJ  states
that he argues that there is no evidence that he specifically intended  that
they engage in a threesome with him and  his  wife  and  that  it  could  be
inferred that he was only  joking.   However,  there  is  evidence  that  he
approached the airman on several different occasions, gave her his  personal
email account to contact him, assured another airman that his wife  actively
engaged in threesomes, enjoyed woman-to-woman sex, that  threesomes  were  a
blast, and requested that the airman get  permission  from  her  husband  to
participate.

The applicant’s commander, after weighing all the evidence,  concluded  that
he had  not  committed  the  maltreatment  offense  but  had  solicited  the
sergeant to commit an indecent sex act.  Arguments failed  to  convince  the
commander or the appellate authority otherwise.  He  complains  that  others
have received an LOR for  similar  offenses.  Even  within  the  article  he
provided it is noted that others  have  received  Article  15s  for  similar
conduct.  Furthermore, it  is  impossible  to  make  meaningful  comparisons
between  punishments  in  different  cases.   The  law  requires  that  each
military member receive individualized consideration on  punishment.   Also,
appellate courts have held that  sentence  comparison  is  only  appropriate
when there is a direct correlation between the  accused  persons  and  their
respective offenses, when their sentences are  highly  disparate,  and  when
there is no good  and  cogent  reason  for  the  substantial  difference  in
punishment.  Such is not the case here.

A set aside should only be granted when the evidence demonstrates  an  error
or a clear injustice.  The applicant has provided no  evidence  of  a  clear
error or injustice related to the nonjudicial punishment  proceedings.   The
JAJM evaluation is at Exhibit C.

AFPC/DPPPWB reviewed applicant’s request, concurs with the JAJM  evaluation,
and recommends denial.  The DPPPWB evaluation is at Exhibit D.

AFPC/DPPAE  reviewed  applicant’s  request  and  recommends  denial.   DPPAE
states that he received an RE code 2X, “First-term airman,  second-term,  or
career airman considered but not selected under the  selective  reenlistment
program (SRP)”.  On 24  Aug  01,  his  commander  signed  an  AF  From  418,
Selective Reenlistment Consideration, denying him  reenlistment  because  of
disorderly conduct, misconduct, and aggravating circumstances that  occurred
on duty and in uniform.  The DPAAE evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded and states  that  the  Air  Force  did  not  handle  his
Article 15 and the vacation  of  his  punishment  appropriately.   After  he
proved to his commander that he did  not  commit  the  offenses  alleged  he
still received Article 15 punishment.  Then on 24 Jul 01,  he  was  arrested
for  domestic  battery  against  his  wife.   As  a  result  his   suspended
punishment was vacated.  His commander erred in  not  letting  his  case  go
through the State of Idaho District Courts  before  finding  him  guilty  of
this offense.  He made his determination of guilty without  having  all  the
facts.   The  Air  Force  never  investigated  this  matter.   He  told  his
commander that he did not hit his wife as indicated on  the  police  report.
He was arrested even after he  told  the  police  that  his  wife  had  been
drinking and was the aggressor.  She  was  the  one  who  was  throwing  and
hitting him with objects.  Her statements made to the police were  false  as
a result of her being angry with him.  The only force he  used  against  his
wife was the result of trying to restrain her.  In a hearing on  9  Aug  01,
the Judge dropped the no-contact order because she did not  feel  he  was  a
threat to his wife.  At the pre-trial hearing,  the  Prosecutor  offered  to
dismiss the case if he and his wife both  sought  counseling.   He  and  his
wife agreed.  On 15 Jan 02, the  case  was  dismissed.   Applicant  believes
that his commander should have waited to see the outcome of the case  before
finding him guilty.  How can his commander find him guilty of battering  his
wife when the State did not determine that he was guilty.

In his advisory, JAJM omits that he submitted three emails as evidence  that
this accuser participated  in  their  conversations.   JAJM  also  fails  to
mention that none of the accuser's statements were  sworn  statements  given
under oath.  He also fails to mention that he had his accuser’s  home  email
address but never once emailed her at home or spoke to her outside of  work.


Applicant asks that the Board follow the decision of the District  Court  of
the State of Idaho, who did not  find  him  guilty  of  battering  is  wife,
reinstate his grade of technical sergeant and amend his RE code  to  reflect
1J.

In support of his  request  applicant  provided  a  personal  statement  and
copies of the State of  Idaho  District  Court  proceedings.   His  complete
submission, with attachments, is at Exhibit G.

_________________________________________________________________

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 that would  warrant  set  aside  of
his Article 15 action, restoration to the grade of technical sergeant, or  a
change to his RE code.  We find no evidence of error in this case and  after
thoroughly reviewing the documentation provided in support  of  his  appeal,
we do not believe he has suffered  an  injustice.   Evidence  has  not  been
presented which would lead us to believe that  the  nonjudicial  punishment,
initiated on 1 May 01 and imposed on 10 May 01 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 he was entitled.  He was represented by counsel, waived  his  right
to demand trial by court-martial, and submitted written matters  for  review
by the imposing commander.  After considering  the  matters  raised  by  the
applicant, the commander determined that the applicant  had  committed  "one
or more of the offenses alleged" and imposed punishment  on  the  applicant.
The applicant has not  provided  any  evidence  showing  that  the  imposing
commander or the reviewing authority abused their  discretionary  authority,
that his 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.

_________________________________________________________________

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  Docket  Number  01-01547  in
Executive Session on 7 Aug 02, under the provisions of AFI 36-2603:

      Mr. Vaughn E. Schlunz, Panel Chair
      Mr. E. David Hoard, Member
      Mr. Clarence D. Long III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 May 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 7 Nov 01.
    Exhibit D.  Letter, AFPC/DPPPWB. dated 9 Jan 02
    Exhibit E.  Letter, AFPC/DPPAE, dated 4 Jun 02
    Exhibit F.  Letter, SAF/MRBR, dated 14 Jun 02.
    Exhibit G.  letter, Applicant, dated 9 Jul 02, w/atchs




                                   VAUGHN E. SCHLUNZ
                                   Panel Chair