RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01262
            INDEX CODE:  126.04
            COUNSEL:  MR. TOM HOLLAND

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His two nonjudicial punishments under Article 15 of the  Uniformed  Code
of Military Justice (UCMJ) and all relevant information  i.e.,  OSI  Reports
and First Sergeant’s Letter, be permanently and completely removed from  his
records.

2.  He be reimbursed for all  his  legal  expenses  involved  in  his  fight
against the Article 15s.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Both Article 15s were issued out of bad  judgment  and  highly  questionable
evidence.  The punishment  far  outweighed  the  crimes  that  he  allegedly
committed.  He is positive  that  there  have  been  more  serious  offenses
committed by  military  members  who  received  little  or  no  disciplinary
actions.

He has just been able to gather the mental strength to attempt  a  rebuttal.
The mental anguish that he  has  suffered  has  caused  him  to  receive  VA
disability.   He believes that if  his  oral  and  written  testimonies  are
heard/viewed, the sheer amount of flaws in the  handling  of  his  case  and
irrelevancies to the charges will warrant his case to be heard.  In  support
of his case, he is willing to accept a lie  detector  test  administered  by
the AFBCMR. He hopes that the evidence he has presented will  be  viewed  as
legitimate evidence that  warrants  the  correction  of  his  records.   His
personal history before and after his service in  the  Air  Force  has  been
beyond reproach.  He is sure that the Board will see  that  he  has  been  a
person of unquestionable character.  In  fact,  his  environment  wanted  to
label him something he wasn’t and was the cause  for  his  problems.   Since
his discharge from the Air Force, he has obtained his Associates  Degree  in
computers and is  currently  working  Air  Force  contracts.   He  has  been
married for over 3 years and has three children.  He  has  had  no  dealings
with local or federal authorities and attends church regularly.  He  doesn’t
smoke nor do any drugs and seldom drinks.  He is the same upright person  he
has always been.

His commander and first sergeant took  a  personal  commitment  to  downsize
personnel by using anything and everything  at  their  disposal.   Both  his
commander and first sergeant were indeed guilty of falsely accusing him  and
were not acting in the best interests of the Air Force.  He  would  like  it
to be known that copies of his application along with other legal  documents
will be sent to both congressional members, news agencies and  civil  rights
organizations pending the outcome of this case.  This is not a threat but  a
responsible measure as an American citizen to  insure  that  other  enlisted
members do not go through the same ordeal he has.  Of  all  the  individuals
mentioned in the report, he  is  indeed  the  most  honest  and  forthcoming
person.

In  support  of  his  request,  applicant  provides  a  personal   statement
elaborating on the foregoing contentions and documents associated  with  the
events and issues raised in his application.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  30
April 1986.  He continually served on  active  duty  and  was  progressively
promoted to the grade of sergeant.

On 20 July 1992, the Mental Health Clinic, Ellsworth AFB,  SD,  performed  a
mental health evaluation on the applicant due to suicidal  ideas  or  plans.
The mental health evaluation diagnosed him as having an adjustment  disorder
with depressed mood.  The examiner advised the commanding officer  that  the
applicant  had  no  medical  disorder  warranting  medical  action  and  was
medically qualified for worldwide duty.

On 23 September 1993, a  mental  health  evaluation  was  performed  on  the
applicant after a referral for  evaluation  was  requested  because  of  his
misconduct in July and August 1993 (2 instances  of  wrongful  communication
of a threat to injure).  The mental health evaluation contained a  diagnosis
of narcissistic personality traits.  Psychological  testing  revealed  scale
elevations which were indicative of individuals  who:   react  to  criticism
with  feelings  of  rage,  shame   or   humiliation;   are   interpersonally
exploitative: take advantage of others to  achieve  his  own  ends;  require
constant attention and admiration;  and  have  a  grandiose  sense  of  self
importance.  The recommendation to the commanding officer  was  to  consider
administrative separation based on his pattern of  misconduct,  even  though
no “formal” mental disorder existed.

On 5 October 1993, he was charged with wrongfully communicating a threat  to
injure on or about 30 July 1993 and 3 August 1993.  For these incidents,  an
Article 15, Uniform Code of Military Justice was imposed.   He  was  reduced
to the grade of airman first class.

On 30 December 1993,  he  was  charged  with  failure  to  go  at  the  time
prescribed to his appointed place  of  duty.   For  this  incident,  he  was
reduced to the grade of airman.

On 26 January 1994, the applicant was notified by his commander that he  was
recommending he be discharged from the Air Force  under  the  provisions  of
AFR  39-10,  for  a  pattern  of  misconduct  involving  minor  disciplinary
infractions.  The specific reasons for this action were  the  aforementioned
Article 15 punishments. He was advised of his  rights  in  this  matter  and
acknowledged  receipt  of  the  notification  on  that  same  date.    After
consulting counsel he elected  to  waive  his  right  to  an  administrative
discharge board but submitted a statement in his own  behalf.   In  a  legal
review of the discharge  case  file,  the  staff  judge  advocate  found  it
legally sufficient and recommended that the  applicant  be  discharged  from
the Air Force with an under other than honorable  conditions  discharge  and
that  the  discharge  not  be  suspended  for  a  probationary   period   of
rehabilitation.  On 23 March 1994, the  discharge  authority  directed  that
the applicant be discharged from the Air Force under the provisions  of  AFR
39-10, Chapter 5, Section H, with a general discharge.   The  applicant  was
discharged on 4 April 1994.  He served 7 years, 11  months,  and  5 days  on
active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the application  and  recommends  denial.   JAJM  states
that nonjudicial  punishment  provided  commanders  with  an  essential  and
prompt means of maintaining good order and discipline for violations of  the
law and also  to  promote  positive  behavior  changes  in  service  members
without  the  stigma  of  a   court-martial   conviction.    Accepting   the
proceedings is simply a choice of forum, not  an  admission  of  guilt.   By
electing to resolve the allegation in the nonjudicial forum, he  placed  the
responsibility  to  decide  whether  he  committed  the  offenses  with  his
commander.   The  applicant   was   offered   two   nonjudicial   punishment
proceedings by his commander to resolve  allegations  he  had  threatened  a
civilian and that he was absent without  leave.   While  the  applicant  has
made claims of injustice, he has not  provided  evidence  to  support  these
claims.  The allegations he claims should have been raised at  the  time  of
the incidents so that it would be possible  to  resolve  them.   It  is  not
possible to do so after that fact.  JAJM states that the evidence  presented
by the applicant  does  not  mandate  the  relief  requested  and  does  not
demonstrate an equitable basis for relief.

The JAJM evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation was forwarded  to  the  applicant  on  19
July 2002 for review and response 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 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 find no evidence of error in this  case
and after thoroughly reviewing  the  documentation  applicant  submitted  in
support of his appeal, we do not believe he has suffered from an  injustice.
 Evidence has not been presented which would lead us  to  believe  that  the
nonjudicial punishments, imposed on 21 September 1993 and  30 December  1993
respectively, were 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 these Article 15  actions,
the applicant was offered every right to which  he  was  entitled.   He  was
represented by counsel, 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 these  Article  15
punishments, or that the punishments exceeded the maximum authorized by  the
UCMJ.  Therefore, based on the available evidence  of  record,  we  find  no
basis upon which to favorably consider his request that the Article  15s  be
removed from his records to include the OSI  reports  and  First  Sergeant’s
letter.

4.  We have noted the applicant’s request for reimbursement  for  the  legal
fees he has incurred.  The law under which this  Board  operates  authorizes
the payment of monies due as a result of  a  correction  of  the  record  to
rectify an error and/or an injustice.   Therefore,  favorable  consideration
of this request would not be possible under any circumstances.

5.  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 13 November 2002, under the provisions of AFI 36-2603:

      Mr. Edward H. Parker, Panel Chair
      Mr. Mike Novel, Member
      Ms. Martha Maust, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 April 2002 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 21 June 2002.
    Exhibit D.  Letter, SAF/MRBR, dated 19 July 2002.





                                   EDWARD H. PARKER
                                   Panel Chair