RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  01-01609
                 INDEX CODE:  112.05
      APPLICANT        COUNSEL:  JOSEPH W. KASTIL

                 HEARING DESIRED:  YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

His court-martial punishment consisting of a reduction to staff sergeant (E-
5) be set aside and that he be allowed to retire as an  technical  sergeant
(E-6) with back pay and allowances.
___________________________________________________________________

APPLICANT CONTENDS THAT:

He received a sentence that was clearly unequal and unjust  as  compared  to
others who were punished in a series  of  promotion  test  compromises,  and
that he was the only one who lost a stripe that had  been  honestly  earned.
He was the first to be tried with  six  others  subsequently  charged.   Two
were acquitted of the cheating charge, one was granted a discharge  in  lieu
of court-martial, one was sentenced to a  one  grade  reduction,  which  was
suspended, one received a one grade reduction, 15 days confinement and  hard
labor for 15 days.  The  remaining  staff  sergeant  received  a  one  grade
reduction, two months confinement and forfeiture of $200 per month for  five
months.

The two staff sergeants, whose reductions in rank  were  approved,  obtained
their rank of staff sergeant by virtue  of  cheating  for  which  they  were
punished.  They suffered no net loss of rank.  However, he  suffered  a  net
loss of one grade since his rank of technical sergeant was not  achieved  by
virtue of cheating.  He, citing various military appellate court  decisions,
avers that the disparity of punishment was  beyond  that  permitted  by  the
needs of justice.

In support of his submission, the applicant  submits  a  brief  prepared  by
counsel, copies of several Enlisted Performance Reports (EPRs)  and  a  copy
of  a  letter  from  his  former  commander.    The   applicant’s   complete
submission, with attachments, is at Exhibit A.
___________________________________________________________________

STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant’s military records, are contained in the letters prepared  by  the
appropriate offices of the Air Force at Exhibits C, D and E.
___________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states the applicant, while assigned at  Yokota  AB,  Japan,  was
charged with one specification of violating AFI  36-2605,  paragraph  5.9.2,
by reviewing or having access to illegal study materials that  revealed  the
specific content  of  actual  or  suspected  test  material  without  proper
authority, in violation of Article 92,  Uniform  Code  of  Military  Justice
(UCMJ).  On 13 October 1998 the charges were referred to  a  special  court-
martial.  He was found guilty and sentenced to confinement  for  one  month,
45 days of hard labor without confinement and  reduction  to  the  grade  of
Senior Airman (SrA),E-4.  In a pre-trial  agreement  between  the  applicant
and the convening authority, the latter agreed not to approve a bad  conduct
discharge, or any confinement in excess of four months.   In  addition,  the
agreement provided that the convening authority could  approve  a  reduction
to E-5, but would suspend any reduction below that grade.   Accordingly,  on
11 December 1998 the convening authority  approved  the  sentenced  adjudged
except for the reduction from SSgt to SrA which was  suspended  for  twenty-
one months.   The record of trial was reviewed by 5 AF/JA and  found  to  be
legally sufficient

JAJM states the applicant asserts that there  existed  a  disparity  in  the
sentence received by him and  others  who  were  punished  in  a  series  of
promotion test compromises.  The applicant cited two  cases,  U.S.  v.  Kent
and  U.S.  v.  Olinger,  in  support  of  his  assertion.   The  burden   of
demonstrating that any cited cases are closely related to his case and  that
the  sentences  are  “highly  disparate”  lies  with  the  applicant.   JAJM
indicates he has failed to show that the above  cases  are  closely  related
except for the general nature of the charges.  Secondly, in  the  two  cases
cited for the purpose by the applicant, the most severe punishment  was  the
same as that accorded him, a reduction in grade.  Therefore, he  has  failed
to establish the most  basic  requirement  for  the  relief  requested,  the
highly disparate nature of the punishments.

JAJM indicates that the  applicant’s  argument  seems  to  center  around  a
belief that he earned his technical  sergeant  stripe  honestly  and  it  is
unfair for the court-martial to  take  it  away.   The  court  members  were
instructed that the sentence in the applicant’s case  was  a  matter  within
their discretion.  They could  adjudge  any  punishment  authorized  by  the
Manual for Courts-Martial  (MCM),  including  the  maximum  punishment,  any
lesser  punishment,  or  no  punishment  at  all.   After  considering   the
integrity offense  the  applicant  committed,  it  is  consistent  that  the
members concluded he was  not  fit  to  be  a  noncommissioned  officer  and
sentenced him to be reduced to  the  grade  of  E-4,  senior  airman.   JAJM
states that it was only his bargain with the convening  authority  that  his
reduction below staff sergeant was suspended.  The applicant overlooks  that
the reductions imposed in the other  cases  he  cites  also  rightly  remove
those individuals from the noncommissioned officer  corps.   To  answer  the
applicant’s question, “please treat me like everyone else.  That’s  all  I’m
asking”  -  he  has  been.   He  was  sentenced  to  be  reduced  from   the
noncommissioned officer ranks.

JAJM concludes that the court-martial was the correct  forum  to  deal  with
the applicant’s misconduct.   The  applicant’s  sentence  was  within  legal
limits for the offense committed.  His reduction in grade, among  the  other
punishments, was appropriate considering the serious nature of  the  offense
for which he was convicted.  He has failed to allege any injustice or  error
in his request.  Therefore, JAJM recommends the Board deny  the  applicant’s
request.  AFLSA/JAJM complete evaluation, with attachments,  is  at  Exhibit
C.

In addressing the promotion and testing issues, AFPC/DPPPWB states that  the
applicant was court-martialed per  Special  Court-Martial  Order  Number  1,
dated 11  December  1998.   The  part  of  the  sentence  extending  to  his
reduction from staff sergeant to senior airman was suspended for  twenty-one
months at which time it would be remitted without further action.   His  new
date of rank and effective date for staff sergeant  was  24  November  1998.
He pled guilty to the charged offense prior to testing for  the  97E7  cycle
promotion to master sergeant for which he was a  nonselect.   He  retired  1
September 2000 in the grade of staff sergeant based  on  maximum  length  of
service.  DPPPWB deferred to the recommendation of  AFLSA/JAJM.   AFPC/DPPWB
complete advisory is at Exhibit D.

With respect  to  the  retirement  issues,  AFPC/DPPRRP  indicates  that  in
accordance with Section 8961,  Title  10,  United  States  Code  (USC),  the
applicant was correctly retired in the grade of staff  sergeant,  which  was
the grade he held on the date of his retirement.  The law which  allows  for
advancement of enlisted members when their active service  plus  service  on
the retired list totals 30 years, is very specific in  its  application  and
intent.  On 24 March 2000, the Secretary of the Air Force Personnel  Council
(SAF/PC)  made  the  determination  that  the  applicant   did   not   serve
satisfactorily on active duty in  any  grade  higher  than  staff  sergeant.
DPPRRP states that all provisions of the pertinent laws have  been  met,  no
injustices  or  irregularities  occurred  with  the  applicant’s  retirement
process, and he was correctly  retired  in  the  grade  of  staff  sergeant.
AFPC/DPPRRP complete evaluation, with attachments, is at Exhibit E.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force Evaluations were  forwarded  to  the  applicant  for
review and response.  As of this date, this office has received no  response
(Exhibit F).

___________________________________________________________________





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  took  notice   of   the
applicant's complete submission  in  judging  the  merits  of  the  case  to
include his contentions that there was a disparity in the sentence  received
by him  and  others  who  were  punished  in  a  series  of  promotion  test
compromises; that he earned his technical stripe honestly and it was  unfair
for the court-martial to take it away.  However, we agree with  the  opinion
and recommendation of JAJM that the applicant’s sentence  was  within  legal
limits for the offense committed and adopt their rationale as the basis  for
our conclusion that the applicant has not been the victim  of  an  error  or
injustice.  Applicant, in our opinion, has failed to  substantiate  that  he
has been the victim of either an error or an injustice.  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 8 January 2002, under the provisions of AFI 36-2603:

      Ms. Peggy E. Gordon, Panel Chair
      Mr. Michael K. Gallogly, Member
     Mr. Steven A. Shaw, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Jun 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 6 Sep 01, w/atchs.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 1 Oct 01.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 22 Oct 01, w/atchs.
    Exhibit F.  Letter, SAF/MIBR, dated, 26 Oct 01.




                                   PEGGY E. GORDON
                                   Panel Chair