RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01566
            INDEX CODE:  126.00

      APPLICANT  COUNSEL:  NONE

      SSN   HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15,  Uniformed  Code  of
Military Justice (UCMJ), dated 4 May 2001, be set aside.

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APPLICANT CONTENDS THAT:

He was not given the opportunity to review all evidence  presented  to
the  commander,  which  was  a  direct  a  violation  of   Air   Force
Instructions (AFI) 51-202, para 3.4.  The  investigation  was  riddled
with  unproven  accusations  and  allegations  by  the   investigating
officer.   He  answered  every  assumption  with  logic…something  the
proceedings lacked.

Applicant's complete submission,  with  attachments,  is  attached  at
Exhibit A.

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STATEMENT OF FACTS:

The applicant, a Reservist, is currently serving on active duty in the
grade of technical sergeant.

On 14 May 2001, applicant was notified of his  commander's  intent  to
impose nonjudicial punishment upon him for altering a public form  (AF
Form 56) in violation of Article 134.

On 17 May 2001, after consulting with counsel,  applicant  waived  his
right to  a  trial  by  court-martial,  did  not  request  a  personal
appearance and submitted a written presentation.

On 4 June 2001, he was found guilty by his commander who  imposed  the
following punishment:  reduction  to  the  grade  of  staff  sergeant,
suspended until 3 December 2001, after which time it would be remitted
without further action, unless sooner vacated and a reprimand.

Applicant did appeal the punishment; however, the appeal was denied on
15 June 2001.  The Article 15 was filed in his Unfavorable Information
File (UIF).

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AIR FORCE EVALUATION:

AFLSA/JAJM states Article 15s are permitted and governed by the Manual
for Courts-Martial (MCM) and AFI 51-202.  This  allows  commanders  to
dispose of certain offenses without trial by court-martial unless  the
service member objects.  The commander,  before  imposing  nonjudicial
punishment, must notify the  service  member  of  the  nature  of  the
charged offense(s), the  evidence  supporting  the  offense,  and  the
commander's intent  to  impose  nonjudical  punishment.   The  service
member then may consult with counsel to aid in determining whether  to
accept the nonjudicial punishment or demand a trial by  court-martial.
Acceptance of the proceedings is a choice  of  forum;  it  is  not  an
admission of guilt.

The service member in accepting the nonjudicial punishment may have  a
hearing with the  commander.   He  may  have  a  spokesperson  at  the
hearing, he may have witnesses appear and  testify,  and  can  present
evidence.  The  commander  must  consider  any  information  presented
during the hearing and must be  convinced  through  reliable  evidence
that the service member committed  the  offense  before  imposing  the
Article  15.   The  service  member  may  contest  their   commander's
determination or severity of the punishment received and may appeal to
the next higher commander.  The appeal authority  may  set  aside  the
punishment, decrease its severity, or deny  the  appeal.   Nonjudicial
punishment does not constitute a criminal conviction.

The applicant alleges his commander  obtained  additional  information
after the Article 15 was issued, which he did not get  to  review  and
this is in violation of AFI 51-202.  The rule as  established  in  MCM
and repeated in the AFI, is that the offender is allowed  "to  examine
documents  or  physical  objects  which  the  nonjudicial   punishment
authority has examined in connection with the case and  on  which  the
[commander]  intends  to  rely…"   The  applicant  has  not  presented
evidence that this rule was violated.  The applicant  further  alleged
that his commander made the call after his presentation.   It  appears
the commander was seeking clarification on issues that  the  applicant
raised.  Furthermore, the applicant raised and discussed this issue in
his appeal.

The applicant denies he altered the form and that there  is  no  proof
that  he  did  alter  the  form.   The  evidence  obtained  from   the
investigation was sound and sufficient in aiding the commander in  the
determination of this case.

JAJM further states that a set aside should only be granted  when  the
evidence demonstrates an error or a clear  injustice.   The  applicant
did not submit evidence that would warrant a change in the  nonjudical
action nor has he submitted evidence that he  was  the  victim  of  an
error  or  injustice.   Based  on  evidence  to  the  contrary,   JAJM
recommends no relief be granted to have the Article 15 set aside.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the Air Force's  recommendation  to  deny
his request because their contentions are without merit.  He feels his
argument has merit and  that  this  case  was  based  on  nothing  but
allegations and suspicions.  He states throughout his response that he
did not alter the form.  He is being punished for something he did not
do.  He does agree that the form was altered, he did not  do  it.   He
disagrees with the Air Force evaluation that he was the only one  with
motive to alter the form.  He further states that a huge  irregularity
happened during the investigation because questions were not asked  to
all parties involved.  He feels that during this entire process no one
has asked the difficult questions.

Applicant's complete response is attached at Exhibit E.

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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. 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 Air Force  office  of
primary responsibility and adopt their rationale as the primary  basis
for our conclusion that the applicant has failed to sustain his burden
that he has been the victim of an error or injustice.   The  applicant
asserts that his commander violated AFI 51-202 by obtaining additional
information after the Article 15 was initiated, and that  he  was  not
given the opportunity to review this information; however, it  appears
that the commander was only seeking clarification of the  issues  that
the  applicant  raised.   It  would  appear  that  the  commander  was
affording the applicant additional  consideration  before  making  his
final  decision  regarding  the  applicant's   guilt   or   innocence.
Furthermore, these issues were considered on appeal,  and  apparently,
not only was the commander not persuaded, neither  was  the  appellate
authority.  Apparently contrary to the applicant's  assertions,  there
was sufficient evidence to support the allegation that he  did  commit
the alleged offenses.  The Board was persuaded that  deference  should
be given to those who made the decisions.  Further, the Board  is  not
persuaded by the evidence submitted that the punishment imposed on the
applicant was erroneous or unjust.  The responsibility to  decide  the
type and scope of punishment rests with the commander.  As  previously
noted, the Article 15 appellate authority  considered  his  assertions
before making his decisions to deny  the  applicant's  appeal  of  the
punishment.  In light of the above, we  find  no  basis  on  which  to
favorably consider the requested relief.

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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 AFBCMR Docket Number 02-
01566 in Executive Session on 15 October 2002, under the provisions of
AFI 36-2603:

                       Mr. Richard A. Peterson, Panel Chair
                       Ms. Marcia J. Bachman, Member
                       Mr. Grover L. Dunn, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 25 Mar 02, w/atchs.
      Exhibit B. Available Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 16 Jul 02.
      Exhibit D. Letter, SAF/MRBR, dated 2 Aug 02.
      Exhibit E. Applicant’s Response, dated 19 Aug 02.




                             RICHARD A. PETERSON
                             Panel Chair