RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01793
            INDEX NUMBER:  126.00
      XXXXXXXXXXXXXXXX COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 he received on 26 Jan 01 be set aside and removed from
his records.

The Enlisted Performance Report (EPR) rendered on him for the  period
7 Nov 00 through 6 Nov 01 be voided and removed from his records.

He be awarded as a minimum an Air Force Commendation  Medal  for  his
assignment to Naval Air Station Keflavik.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The individual  that  called  the  police  didn’t  follow  Air  Force
procedures for resolving complaints in the dormitory.

Navy Security overacted because he was intimidated by the applicant’s
size.

His commander didn’t listen to advice from  his  first  sergeant  and
superintendent.

The incident was racially motivated.  He was never asked by his  next
door neighbor to turn down his music.

In support of his appeal, applicant  provided  copy  of  an  unsigned
memorandum from his Operations Superintendent, a copy of the findings
of an Inspector General (IG) complaint, and copies of his  appeal  of
the Article 15.

The applicant submitted an addendum memorandum to his initial  appeal
requesting that he receive an end of tour decoration.  The  applicant
contends that he was denied an end of  tour  decoration  due  to  the
unjust Article 15 and EPR that he received.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active duty  in  the  grade  of
master sergeant.  According to information provided  by  AFPC/DPPPWB,
the applicant became a select for master sergeant during  cycle  02E7
with a date of rank of 1 Sep 02.

On 16 Jan 01, while serving in the grade of technical sergeant (E-6),
proceedings under Article 15 were initiated against the applicant for
the violation of Article 95 of the Uniformed Code of Military Justice
(UCMJ), “Resisting Arrest,” and Article 134, “Disorderly Conduct  and
Drunkenness.”  On 19 Jan 01, the applicant accepted proceedings under
Article 15 and waived his right to trial by court martial and elected
to make a personal appearance  before  his  commander  and  submit  a
written presentation.  On 26 Jan 01, the applicant’s commander  found
that the applicant committed one or more of the offenses charged.  He
imposed punishment of reduction to the grade of staff sergeant (E-5),
suspended for six months, forfeiture of $1,003.00 pay, suspended  for
six months, and a reprimand.  The applicant appealed the  punishment.
On 21 Feb 01, the appellate authority denied the applicant’s appeal.

A resume of the applicant’s last ten EPRs follows:

      Closeout Date                     Overall Rating

        05 Feb 93                            5
        30 Aug 94                            5
        30 Aug 95                            5
        25 Jun 96                            5
        25 Jun 97                            5
        25 Jun 98                            5
        25 Jun 99                            5
        25 Jun 00                            5
        06 Nov 00                            5
       *06 Nov 01                            4

*  Contested Report

The remaining relevant facts pertaining to this application are found
in the evaluations prepared by the appropriate  offices  of  the  Air
Force found at Exhibits C, D, and E.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to set  aside
the Article 15 he received on 26 Jan 01.

According to the  complainant  involved  in  the  incident  with  the
applicant, he asked the applicant to turn down his music or he  would
call Navy Security.  Applicant, who is black, started screaming  that
the complainant was a racist and pushed him.  Applicant  bumped  into
the complainant chest to chest and knocked the phone out of his  hand
and stepped on it.  The complainant then went to his room and  called
Navy Security from another phone.   The  complainant's  wife  made  a
statement that tracked with that of her husband.

When Navy Security arrived, the patrolman stated he  found  applicant
in the hallway and  asked  him  for  identification.   The  patrolman
detected the odor of alcohol coming from the applicant (his  BAT  was
.157% 3 hours after the incident).  Applicant refused  several  times
to give the patrolman his ID and  was  informed  that  he  was  being
apprehended for assault.  He was ordered several times to  place  his
hands behind his back and refused.  The patrolman reported  that  the
applicant stated that he was  not  going  to  be  handcuffed  and  he
grabbed the patrolman’s arm.  The patrolman ordered the applicant  to
comply with his orders or he would be sprayed with pepper spray.  The
applicant refused and was sprayed.   He  was  then  wrestled  to  the
ground  and  handcuffed.   The  other  patrolman  dispatched  to  the
dormitory confirmed the major details.   Another  witness  also  gave
essentially the same story.

At the time of the incident, applicant initially declined to  give  a
statement but did provide a memo for record the  next  day.   In  the
memo, he stated  that  the  patrolman  assaulted  him  and  he  never
assaulted the complainant in the  dorm.   He  states  that  he  fully
cooperated with the patrolman and after he  was  handcuffed,  he  was
thrown to the ground and sprayed with pepper spray.  In his  response
to the Article 15, applicant stated that the complainant’s  statement
was not true and he never assaulted him.  He further states  that  he
was never asked for his ID, never resisted arrest, and never  grabbed
the patrolman’s arm.  He also stated that  the  witnesses’  statement
was not true.

Applicant’s contentions are without merit.  Whatever  procedures  may
have existed for handling incidents in the dormitory have no  bearing
on the matters for which the applicant was  punished  nor  would  the
existence of such procedures confer  any  rights  to  the  applicant.
Navy Security was called and the  incident  occurred.   There  is  no
evidence that the call  to  Navy  Security  was  racially  motivated.
Naval authorities  investigated  applicant’s  IG  complaint  and  the
allegations found to be unsubstantiated.

By accepting proceedings  under  Article  15,  applicant  placed  the
responsibility to decide whether he had committed the  offenses  with
his  commander.   The  commander  had  to  weigh  all  the  evidence,
including the credibility of the various  co-workers,  and  make  his
decision.  The applicant’s arguments failed to  convince  either  the
commander who imposed punishment or the appellate  authority.   While
different fact finders might come  to  a  different  conclusion,  the
commander’s findings are neither arbitrary nor capricious and  should
not be disturbed.

The complete evaluation is at Exhibit C.

AFPC/DPPPE recommends denial of the applicant’s request to  void  the
EPR rendered on him closing 6 Nov 01.  The applicant did not  provide
any  specific  arguments  against  the  EPR  in   question   and   no
documentation to suggest the report was  erroneous  or  unjust.   The
report does not mention the Article 15 or the incident  that  led  to
it.

The complete evaluation is at Exhibit D.

AFPC/DPPPWB evaluated the effect a set aside of the Article 15  would
have on the applicant’s promotion opportunity.  If the Board  decides
to remove the  Article  15,  the  applicant  would  be  eligible  for
supplemental promotion consideration for cycle 01E7.  If only the EPR
is removed, the  applicant  would  remain  ineligible  for  promotion
consideration during cycle 01E7.

The complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air  Force  evaluation  by  indicating
that he has done everything possible to prove that he was singled out
and  discriminated  against  because  he  is  African  American.   He
provides information about other incidents that occurred at his  unit
that he contends were handled differently based on the  race  of  the
individuals  involved.   He  contends  that  out  of  three   alcohol
incidents under the same commander, only the African  Americans  were
punished.  He indicates that he is willing to take a polygraph and to
testify before the Board if necessary.  The applicant also provides a
copy of a statement from an eyewitness to the incident that he claims
told him that the commander wanted to make an example out of him.

The applicant’s complete response, with attachment, is at Exhibit G.

_________________________________________________________________

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 are not persuaded that the applicant has been the  victim
of  an  error  or  injustice.   The  applicant   has   not   provided
corroborating evidence for his version of events.  Also, we note that
none of the allegations filed by the applicant  in  an  IG  complaint
were substantiated.  Finally,  we  find  the  actions  taken  by  the
applicant’s commander to be within his discretionary authority and do
not find  any  evidence  that  they  were  arbitrary  or  capricious.
Therefore, in the absence of 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 Docket Number  02-01793
in Executive Session on 5 November 2002, under the provisions of  AFI
36-2603:

      Mr. Joseph G. Diamond, Panel Chair
      Ms. Kathleen Graham, Member
      Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 May 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 20 Aug 02
    Exhibit D.  Memorandum, AFPC/DPPPE, dated 19 Sep 02.
    Exhibit E.  Memorandum, AFPC/DPPPWB, dated 20 Sep 02.
    Exhibit F.  Letter, SAF/MIBR, dated 4 Oct 02.
    Exhibit G.  Memorandum, Applicant, undated, w/atch.




                                   JOSEPH G. DIAMOND
                                   Panel Chair