RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  02-01516
                 INDEX CODE: 126.02  126.04  105.01  110.00
                       COUNSEL:  None

                       HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 punishment imposed on 15 Nov 01 and the summary  court-
martial (SCM) received on 19 Dec 01 be set aside  [and  his  9 Jul  02
general discharge be upgraded to honorable].

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15, with its extremely harsh punishment, and the SCM  were
unjust  because  the  insufficient  evidence  did  not   support   the
government’s findings. Regarding the  Article  15,  the  complainant’s
claim could not be substantiated and interviewed parties indicated she
had a tendency to lie and exaggerate.  The  commander’s  decision  was
based on the credibility of himself and his accuser. As for  the  SCM,
the government presented absolutely no evidence to support the  guilty
finding. His counsel proved the store manager’s  allegations  that  he
had placed an additional discount sticker  on  a  vacuum  cleaner  was
unfounded. Further, he was not given an opportunity  to  consult  with
civilian counsel because  the  legal  office  expedited  the  case  to
accommodate their Christmas schedule. He was given only  two  days  to
consult with military counsel due to his  taking  emergency  leave  to
attend his sister’s funeral. He served honorably for over 17 years and
wants these miscarriages of justice removed from his records.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 3  Jan  85.  During
the period in question, he was a staff sergeant assigned  to  the  3rd
Operations Support Squadron at Elmendorf AFB, AK  as  an  air  traffic
controller.  His performance reports from 3 Jan 85 through 15  Jan  02
reflect the following overall ratings: 9,  9,  9,  9,  9,  8,  4  (new
system), 4, 4, 4, 4, 4, 5, 5, 5, 5, 5, 4 and 2 (referral).

On 7 Aug 00, the applicant received a Letter of  Reprimand  (LOR)  for
making an inappropriate sexual  comment  on  2  Aug  00  to  a  female
enlisted member and making additional comments not heard by her but by
others. He did not provide rebuttal comments.

On 7 Sep 01, an investigating officer (IO) was appointed as  a  result
of allegations of sexual harassment made  by  a  female  airman  first
class (A1C). She claimed the applicant  made  sexual  comments  and  a
comment about her weight, grabbed her  buttocks,  repeatedly  massaged
her shoulders and legs, and on one occasion sucked her  toes.  The  IO
indicated the applicant admitted to massaging the A1C’s  shoulders  on
two occasions but the other allegations could  not  be  substantiated;
the applicant was not considered a “touchy-feely” individual; and many
coworkers believed the  complainant  was  unreliable  and  exaggerated
illnesses to avoid work. The IO concluded the applicant  had  harassed
the A1C because he found her credible and because  the  applicant  had
received an LOR for a sexual comment made earlier to another female.

On 2 Nov 01, the applicant was notified of his commander's  intent  to
impose nonjudicial punishment on him for dereliction of duty between 6
Jun and 31 Aug 01 by failing to maintain a work  environment  free  of
sexual harassment and by wrongfully engaging in  verbal  and  physical
conduct of a sexual  nature  that  created  a  hostile  and  offensive
working environment. On 7  Nov  01,  after  consulting  with  counsel,
applicant waived his right to a trial by  court-martial,  requested  a
personal appearance and submitted a written presentation.  On  15  Nov
01, his commander found him guilty and imposed punishment of reduction
to senior airman, suspended until 14 May 02, and forfeiture of $826.00
in pay per month for two months. The applicant’s appeal was denied  on
21 Nov 01 and the Article 15 was filed in his Unfavorable  Information
File (UIF).

On 4 Dec 01, the  applicant  was  charged  with  stealing  merchandise
valued at about $284.25 from the Base Exchange on 14 Nov  01.  He  was
alleged to have put an additional, higher discount sticker from a  box
of shoes onto a box containing a vacuum cleaner. The identifier number
on the top discount sticker was also questionable. However, no one had
observed the applicant place any  type  of  discount  sticker  on  the
vacuum box. The applicant was represented  by  counsel  and  pled  not
guilty. He was found guilty by SCM on 19 Dec 01  and  reduced  to  the
grade of senior airman. The sentence was adjudged on 20 Dec 01.

On 18 Jan 02, the Enlisted Performance Report (EPR) closing 15 Jan  02
was referred to the applicant. The overall rating was  2  and  he  was
marked “Unacceptable” in on/off duty conduct. The rater also  referred
to the Article 15  and  the  SCM.  The  additional  rater  noted  that
comments from the applicant were requested but not received within the
required period.

On 12 Feb 02, the applicant was notified of his  squadron  commander’s
intent  to  recommend   an   other-than-honorable-conditions   (UOTHC)
discharge for a pattern of misconduct based on the  SCM  finding,  the
Article 15 and the LOR. On 14  Feb  02,  the  applicant  requested  an
administrative discharge board and lengthy  service  consideration  by
the Secretary of the Air Force (SAF).

On 6 Mar 02, the applicant submitted a conditional waiver of his right
to an administrative board contingent upon receiving no  less  than  a
general discharge, but did not waive  his  right  to  lengthy  service
consideration by the SAF.  The squadron commander recommended a  UOTHC
discharge on 15 Feb 02. The case was found legally sufficient on 6 Mar
02; however,  the  Assistant  Staff  Judge  Advocate  recommended  the
applicant’s conditional waiver be accepted and he be separated with  a
general  discharge.  The  applicant’s  area  defense   counsel   (ADC)
submitted materials for consideration; however, on 25 Mar 02, the 11th
Air Force (11AF)  vice  commander  recommended  that  lengthy  service
probation  be  denied,  the  waiver  be  accepted  and  the  applicant
separated with a general discharge. HQ PACAF/JA found the case legally
sufficient on 30 Apr 02.

After considering the case on 21 Jun 02,  the  SAF  Personnel  Counsel
recommended on 24 Jun 02 that lengthy service probation be denied.

On  25  Jun  02,  the  Secretarial  designee  denied  lengthy  service
probation and approved the applicant’s administrative discharge.

The applicant was discharged for misconduct in  the  grade  of  senior
airman on 9 Jul 02 with a general characterization. He had 17 years, 6
months and 6 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM notes that by electing to resolve the harassment allegation
in the nonjudicial forum, the applicant placed the  responsibility  to
decide whether he had committed the offenses with his commander.   The
incident was not the first sexual harassment  complaint  made  against
the  applicant.  The  Article  15  punishment  was  well  within   the
commander’s authority to impose and was not unduly harsh based on  the
prior similar offense  and  the  reduction  was  suspended.   While  a
different fact finder may have come to  a  different  conclusion,  the
commander’s findings are neither arbitrary nor capricious  and  should
not be disturbed.  Trial  by  SCM  provides  a  simple  procedure  for
resolution of charges involving minor  incidents  of  misconduct.  The
maximum punishment imposable is considerably less than  a  special  or
general court-martial. A summary court follows substantially the  same
rules and procedures  which  apply  in  general  and  special  courts-
martial. The  Board  does  not  have  the  authority  to  expunge  the
applicant’s court-martial conviction.  The  applicant  has  failed  to
substantiate any injustice or error in his  request.  His  ability  to
meet with civilian counsel  is  his  own  responsibility  and  he  was
informed of his right to request an extension or decline the  SCM  and
demand a trial at a special court martial.  He  did  not  provide  any
evidence that he requested an extension from the convening authority’s
staff judge advocate.  Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ  AFPC/DPPRS  believes  the  discharge  was  consistent   with   the
procedural and substantive requirements of the  discharge  regulation.
The applicant did not submit any new evidence or  identify  errors  or
injustices in the discharge processing. Additionally, he  provided  no
facts warranting an upgrade of the discharge he received. The  request
should be denied.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 20 Sep 02 for review and comment within 30 days.   As  of
this date, this office has received no response.

_________________________________________________________________

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 error or injustice. After a thorough  review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded that the Article 15 and SCM punishment should be  set  aside
and his discharge upgraded to honorable. The  applicant’s  contentions
are duly noted; however, we do not find these assertions,  in  and  by
themselves, sufficiently persuasive to override the rationale provided
by the Air Force. By electing to resolve the harassment issues in  the
nonjudicial forum, the applicant placed the responsibility  to  decide
whether he had committed the offenses with his commander.  He has  not
shown that the commander’s  findings  were  arbitrary,  capricious  or
should be overturned. As for the SCM, we do not have the authority  to
expunge the conviction and the applicant has not convinced us  of  his
innocence or that the adjudged punishment was unjustified. Finally, he
waived his right to an administrative discharge board but did  receive
lengthy service consideration. The  applicant’s  submission  does  not
establish that the Secretarial designee’s denial  of  lengthy  service
probation should be overturned.  In  view  of  the  above  and  absent
persuasive evidence to the  contrary,  the  applicant  has  failed  to
sustain his burden of having suffered either an error or an injustice.
Therefore, we find no  compelling  basis  to  recommend  granting  the
relief sought.

_________________________________________________________________

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 29 October 2002 under the provisions of  AFI  36-
2603:

                                  Ms. Peggy E. Gordon, Panel Chair
                                  Mr. Christopher Carey, Member
                                  Mr. Billy C. Baxter, Member

The following documentary evidence relating to AFBCMR Docket Number 02-
01516 was considered:

   Exhibit A.  DD Form 149, dated 15 Apr 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 15 Jul 02.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 6 Sep 02.
   Exhibit E.  Letter, SAF/MRBR, dated 20 Sep 02.




                                   PEGGY E. GORDON
                                   Panel Chair


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