RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03509
            INDEX NUMBER:  126.00
      XXXXXXXXXXX      COUNSEL:  Anthony W. Walluk

      XXX-XX-XXXX      HEARING DESIRED:  Yes

______________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on her on 30 Apr 02 be set aside.

______________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel, in a five-page brief with attachments, indicates the
offense for which the applicant was charged did not warrant an Article 15
and even if it did the punishment imposed was unduly severe.

Counsel argues that the punishment imposed upon the applicant for a first
time offense was out of line.  Counsel also argues that it is very  clear
that there was no intent to make a “false official statement with  intent
to deceive” as the applicant was charged.  It would be extremely  foolish
for anyone to deceive a commander about the type of surgery taking  place
at a location that they had disclosed, by a doctor they had identified in
the same building that you and your supervisor worked.

Counsel provides a statement from the applicant  giving  her  summary  of
events.  He has also attached a copy of the Article  15,  which  includes
the applicant’s  written  presentation  and  appeal  of  the  Article  15
punishment.

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

______________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 17 Apr  96  and  is  presently
serving on active duty in the grade of senior airman.  The applicant  was
promoted to the grade of staff sergeant effective 1 Dec 01.   On  23  Apr
02, the applicant was offered proceedings under Article 15 for  violation
of the Uniform Code of Military Justice  (UCMJ),  Article  107,  for  the
offense of making a false official statement with intent to deceive.  The
applicant was accused of  making  the  statement  “it  is  a  nasal  type
surgery” or words to that effect, when she was undergoing surgery  for  a
Bilateral Augmentation Mammoplasty RT  Mastopexy.   On  26  Apr  02,  the
applicant consulted counsel, accepted proceedings under Article  15,  and
submitted  a  written  presentation.   On  30  Apr  02,  the  applicant’s
commander determined that she  had  committed  the  offense  charged  and
imposed punishment consisting of a reprimand and a reduction to the grade
of E-4, senior airman.   The  applicant  appealed  the  punishment.   The
appellate authority denied the applicant’s appeal.

A resume of the applicant’s enlisted performance reports (EPRs) follows:

      Closeout Date                     Overall Rating

        16 Dec 97                            4
        06 Feb 99                            4
        01 Nov 99                            5
        01 Nov 00                            5
        14 Apr 01                            5
        14 Apr 02                            3

Additional relevant facts pertaining to this application are contained in
the evaluation prepared by the appropriate offices of the Air Force found
at Exhibits C and D.

______________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  The applicant’s
personnel records indicated that she  had  been  involved  in  misconduct
prior  to  receiving  the  Article  15.   The   applicant   received   an
administrative letter of counseling on  5 Jan 01 for failure to  obey  an
order in violation of Article 92, UCMJ.  She received a second letter  of
counseling on     30 Nov 01 for again failing to  obey  an  order  and  a
letter of reprimand on 25 Feb 02 for another failure to  obey  an  order.
Misconduct is commonly addressed in a graduated manner, with more  severe
action in response to  continued  misconduct.   More  serious  action  is
normally appropriate in cases where previous rehabilitative efforts  have
failed.

The applicant acknowledges in her application, as well as  her  responses
to the Article 15, that she told her supervisor that she was having nasal
surgery that, at the time, she knew was false.  The applicant should  not
prevail here absent clear error or injustice.  By electing to resolve the
allegation  in  the  nonjudicial  forum,   the   applicant   placed   the
responsibility to decide whether she had committed the offense  with  her
commander.  Likewise, the  commander  was  given  the  responsibility  to
determine an appropriate punishment if she determined the  applicant  had
committed the offense.  A set aside  should  only  be  granted  when  the
evidence demonstrates an  error  or  a  clear  injustice.   The  evidence
submitted by the applicant is insufficient to warrant setting  aside  the
Article 15 action, and  does  not  demonstrate  an  equitable  basis  for
relief.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation  of  AFLSA/JAJM.   They  provide
information regarding the applicant’s original date of rank  as  a  staff
sergeant should the Board want to grant the relief requested.

The complete evaluation is at Exhibit D.

______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant  on  14
Mar 03 for review and comment within 30 days.  To date,  a  response  has
not been received.

______________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law  or
regulations.

2.  The application was timely filed.

3.  After reviewing the complete evidence of record, we are not persuaded
that the  applicant  has  been  the  victim  of  an  error  or  injustice
warranting the relief requested.  Although the applicant has  an  overall
good record of performance, we note that prior to the  contested  Article
15, she was involved in other disciplinary infractions, which resulted in
administrative action against her.  This  directly  challenges  counsel’s
argument that the Article 15 action  was  too  severe  for  a  first-time
offense.  The applicant indicates  that  she  was  not  candid  with  her
supervisor regarding her scheduled  surgery  because  she  considered  it
personal and that she pointed at her nose in jest when pressed  for  more
information.  Unfortunately, she does not indicate that she ever provided
a direct and honest response to what was a reasonable question  from  her
supervisor.  Consequently, given the circumstances, we do  not  find  her
commander’s  decision  to  punish  her  under  Article  15  arbitrary  or
capricious.  Therefore, we find no basis to recommend granting the relief
requested.

4.  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 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 BC-2002-03509
in Executive Session on 15 April 2003, under the provisions  of  AFI  36-
2603:

      Mr. Robert S. Boyd, Panel Chair
      Mr. David W. Mulgrew, Member
      Ms. Kathleen F. Graham, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 3 Feb 03.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 26 Feb 03.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Mar 03.




                                   ROBERT S. BOYD
                                   Panel Chair