RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-00757 (Case 2)
            INDEX CODE:  133.00, 133.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The 1998 Article 15, UCMJ, nonjudicial  punishment  imposed,  demotion
from master sergeant (E-7) to technical sergeant (E-6), be set  aside;
and, that his retired grade be immediately restored to E-7.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons the applicant believes the  records  to  be  in  error  or
unjust and the evidence submitted in support  of  the  appeal  are  at
Exhibit A.

In support of his request, the applicant submits a personal statement,
a copy of the Article 15 and additional documents associated with  the
issues cited in his contentions.  The applicant’s complete submission,
with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
26 Jun 78.  He was progressively  promoted  to  the  grade  of  master
sergeant (E-7).  However, pursuant to an Article 15, the applicant was
reduced to the grade of technical sergeant (E-6),  with  an  effective
date and date of rank (DOR) of 10 Feb 98.

On 9 Sep 83, the applicant was notified of his commander's  intent  to
impose nonjudicial punishment under Article 15, UCMJ.  The  misconduct
applicant had allegedly committed was for assaulting his then wife  by
grabbing her by the arms and pushing her, on or about 27  Aug  83,  in
violation  of  Article  128,  UCMJ.   Applicant  elected   nonjudicial
punishment under Article 15.  The applicant consulted a lawyer, waived
his right to demand trial by court-martial  and  accepted  nonjudicial
punishment.  After considering  all  matters  presented  to  him,  the
commander found that the applicant did  commit  one  or  more  of  the
offenses alleged.  The commander imposed punishment  consisting  of  a
suspended reduction in grade from sergeant (E-4) to airman first class
(E-3) and  forfeiture  of  $100.00  for  two  months.   The  applicant
appealed the nonjudicial punishment on 11 Oct  83.   His  request  was
denied on 28 Oct 83.

On 30 Jan 98, the applicant was notified of his commander's intent  to
impose nonjudicial punishment under Article 15, UCMJ.  The  misconduct
applicant had allegedly committed was for failing  to  obey  a  lawful
order, recklessly operating a motor vehicle  while  drunk,  assaulting
his estranged wife and for threatening to kill his wife, and drunk and
disorderly behavior which brought discredit upon the armed forces,  in
violation of  Articles  92,  111,  128  and  134.   Apparently,  after
considering all matters presented to him, the commander found that the
applicant did commit  one  or  more  of  the  offenses  alleged.   The
commander imposed punishment of a reduction to the grade of  technical
sergeant (E-6).   A  copy  of  the  completed  Record  of  Nonjudicial
Punishment Proceedings, AF Form 3070, is unavailable.

On 31 Aug 98, the applicant was relieved from active  duty  under  the
provisions of AFI 36-3202 (Maximum  Service  or  Time  in  Grade)  and
voluntarily retired on 1 Sep 98.  He  had  completed  a  total  of  20
years, 2 months and 5 days of active service for  retirement  and  was
serving in the grade of  technical  sergeant  (E-6)  at  the  time  of
retirement.  He received  an  RE  Code  of  2V,  which  defined  means
"Applied for retirement, or retirement has been approved."

By order of the Secretary of the  Air  Force,  dated  7  Jul  98,  the
Secretary found that the applicant did  serve  satisfactorily  in  the
grade  of  master  sergeant  (E-7)  and   directed   the   applicant’s
advancement to that grade on the Retired List effective  the  date  of
completion of all required service.

Effective 26 Jun 08, the applicant will be advanced to  the  grade  of
master sergeant (E-7) on the USAF Retired List by reason of completing
a total of 30 years of active service plus service on the Retired List
on 25 Jun 08.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letter prepared by the appropriate office of the  Air
Force at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFLSA/JAJM recommends the application be denied.  JAJM stated  that
no record of the Article 15, UCMJ, nonjudicial punishment  proceedings
can be  located  for  review.   The  applicant  provided  a  partially
completed copy of the AF Form 3070, Record of  Nonjudicial  Punishment
Proceedings, served on him on 4 Feb 98.  The  copy  provided  includes
the charges but does not reflect the subsequent course of the  action.
The applicant claims he was found guilty  of  some  but  not  all  the
offenses and was demoted one rank to E-6.   JAJM  indicated  that  the
applicant does not contend he was denied procedural or substantive due
process.  He does not contend that any error or irregularity  occurred
in the nonjudicial punishment proceedings or  the  appellate  process.
Essentially, he maintains that his commander incorrectly evaluated the
evidence against him and then imposed a  disproportionate  and  unjust
punishment for the offenses the commander determined the applicant had
committed.

JAJM stated that since a completed  copy  of  the  Article  15  action
cannot be located, it is impossible at this time  to  directly  review
the sufficiency of the evidence against the applicant.  The  applicant
does not claim, however, to have been denied  his  procedural  rights.
He apparently availed himself of his right to  counsel  and  presented
evidence in defense, extenuation or mitigation.  After  reviewing  the
evidence  before  him,  the  commander  determined  that   there   was
sufficient evidence that the accused committed  one  or  more  of  the
offenses  charged.    His  decision  was  subject  to  appeal  by  the
applicant and has  withstood  the  scrutiny  of  appellate  and  legal
review.  Absent evidence to the contrary (and none is provided by  the
applicant), the Article 15 action is  entitled  to  a  presumption  of
regularity.  JAJM indicated that, while  different  fact  finders  may
have come to a different conclusion, there is  no  evidence  that  the
commander’s findings were either arbitrary or capricious or should, at
this late date, be  disturbed.   The  mere  fact  that  the  applicant
disagrees with the commander’s assessment of  the  evidence  certainly
does not rise to that level.  Further, the applicant’s naked assertion
that  his  commander  and  “senior  leadership”  were  in   some   way
inattentive to his case is contradicted by the fact that, according to
the applicant, he was found to have committed some  offenses  but  not
others.  The burden of proof rests with  the  applicant  to  show  the
commander erred.  In JAJM’s opinion, he  has  failed  to  produce  any
evidence to carry that burden.

JAJM stated that the punishment imposed  by  the  commander  was  well
within the parameters set out  in  applicable  instructions.   On  its
face, there is no evidence that it was  unjust  or  disproportionately
harsh given all the facts  and  circumstances  before  the  commander.
Even if, as the applicant claims, he was found only to have  committed
the  alcohol-related  offenses,  those  offenses  standing  alone  are
certainly severe enough to warrant the punishment imposed.

JAJM indicated that a set  aside  should  only  be  granted  when  the
evidence demonstrates an error or a  clear  injustice.   The  evidence
presented by the applicant is not sufficient  to  mandate  the  relief
requested, and does not demonstrate an equitable basis for relief.  To
the extent that any relief is warranted,  the  applicant  has  already
received it, in that his former rank of master sergeant (E-7) will  be
restored at his thirty-year service mark by Order of the Secretary  of
the Air Force.

The HQ AFLSA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  applicant  on  9
August 2002 for review and response.  As of this date, no response has
been received by this office (Exhibit D).

_________________________________________________________________

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.    Insufficient relevant evidence has been presented to demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case.
However,  we  agree  with  the  opinion  and  recommendation  of   the
appropriate Air Force office and adopt the rationale expressed as  the
basis for our decision that the applicant has failed  to  sustain  his
burden that he has suffered either an error or an injustice.  In  view
of the above and absent persuasive evidence to the contrary,  we  find
no compelling basis to recommend granting the relief  sought  in  this
application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 24 September 2002, under the provisions of AFI 36-
2603:

                  Ms. Peggy E. Gordon, Panel Chair
                  Mr. John B. Hennessey, Member
              Mr. Albert J. Starnes, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number 02-00757.

   Exhibit A.  DD Form 149, dated 25 Feb 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFLSA/JAJM, dated 24 Jul 02.
   Exhibit D.  Letter, SAF/MRBR, dated 9 Aug 02.




                                   PEGGY E. GORDON
                                   Panel Chair