RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-00662
            INDEX CODE:  110.03, 126.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His nonjudicial punishment under Article 15 of  the  Uniformed  Code  of
Military Justice (UCMJ) be set aside

2.  He be reinstated  to  active  duty  and  provided  retroactive  pay  and
benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 3 Mar 98, he was notified by  his  commander  of  her  intent  to  impose
punishment under Article 15, of  the  Uniformed  Code  of  Military  Justice
(UCMJ), for adultery, failure to obey a lawful order, dereliction  of  duty,
and failure to go.  He was also given a no-contact order.  He  soon  learned
that unlawfully recorded telephone conversations, which  were  made  without
the consent of either party being recorded, were being used as evidence  for
the alleged adultery charge.  The recordings were made by  SSgt  A----,  who
suspected that his wife was  having  an  extramarital  affair  with  another
individual, SSgt F----.   The  recordings  were  also  used  in  nonjudicial
punishment  proceedings   against   SSgt   F----.    SSgt   A----   recorded
conversations between his wife and Mrs. L----, and between his wife and  the
applicant.  After listening to the  recordings,  SSgt  A----  was  convinced
that the applicant was having an affair  with  Mrs.  L----  and  turned  the
tapes over to the Security Forces.

He and his counsel responded to the  Article  15  proposal  and  provided  a
statement from Mrs. L---- in which  she  denied  the  adultery  allegations.
His counsel also addressed the Federal and State Wire Tapping Statutes  that
were violated and asked that the allegation be  stricken  from  the  Article
15.  He asked that he be allowed to review the recordings  but  his  request
was refused.  Throughout the Article 15 proceedings,  his  commander  denied
his attorney and himself  access  to  the  tapes,  in  direct  violation  of
nonjudicial punishment procedures.

Applicant filed an inspector general (IG) complaint.  The IG  responded  and
stated that he was advised that his counsel was permitted to review any  and
all evidence related to his case, which was impossible because  his  counsel
was stationed in Idaho and he was in Washington.  The IG  also  stated  that
the rules of evidence, other than with respect to privileges, do  not  apply
to nonjudicial proceedings.  However, what the IG failed  to  point  out  is
that in accordance with the Manual for Court-Martial (MCM)  interception  of
wire and oral communications must be excluded under the Fourth Amendment  as
applied to members of the armed forces.

In his appeal to the Article 15 punishment, his counsel made it  clear  that
after speaking to Mrs. L---- and her husband, confirmation  was  given  that
he had not spoken to  her,  in  violation  of  his  no-contact  order.   His
commander responded to the appellate authority and  informed  him  that  she
personally listened to the recorded conversations and was convinced  he  was
having an affair.  His commander had advised both of SSgt F----'s  attorneys
that she never personally listened to the tapes.  In actuality, she did  not
listen to the recordings, but relied upon a memorandum written by the  first
sergeant after he listened to them, thus violating wiretapping  statutes  by
listening to and disclosing the content of the  tapes.   The  applicant  was
subsequently discharged from the Air Force.

On 10 Nov 98, due to the nature of the unlawfully obtained evidence, SSgt F-
---'s Article 15 punishment was set-aside by the  wing  commander,  however,
the applicant's Article 15 was not.  He filed  a  lawsuit  against  the  Air
Force but was prohibited by the Ferres Doctrine  from  filing  suit  against
the military or petitioning for the reversal of his discharge.  The  Federal
judge ruled that the military did in fact violate  both  Federal  and  State
wire  tapping  statutes  and  his  constitutional  rights;  and,  that   his
commander had violated those same statutes, but  was  given  immunity  in  a
quasi-judicial manner.

In support of his request applicant provided documents associated  with  his
Article 15 punishment, excerpts from the MCM, documents associated with  his
IG complaint, extracts of documents associated with U.S. District Court  for
the Eastern District of Washington proceedings, a memorandum from his  first
sergeant, copy of a U.S. Court of Appeals decision, extract from a  Security
Police Report of Investigation, set aside  of  Article  15  memorandum,  and
documents  associated  with  his  congressional  inquiries.   His   complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air  Force  on  4
Oct 85.   He  continually  served  on  active  duty  and  was  progressively
promoted  to  the  grade  of  staff  sergeant,  having  assumed  that  grade
effective and with a date of rank of 1 Nov 94.

On 3 Mar 98, applicant was notified  by  his  commander  of  her  intent  to
impose nonjudicial punishment under Article 15, UCMJ.  The specific  reasons
for this action were that on 12 Feb 98, he was derelict in  the  performance
of his duties in that  he  negligently  failed  to  secure  patient  related
paperwork and straighten up his work station; on or  about  20  Feb  98,  he
failed to obey a no-contact order; on or about 9 Feb 98, he failed to go  to
his appointed place of duty; and, on or about 1 Jan 98 and on  or  about  15
Feb 98, he wrongfully had sexual intercourse with a married woman,  not  his
wife.  He was advised of his rights in  this  matter  and  after  consulting
counsel; he waived his right to demand  trial  by  court  martial,  accepted
Article  15  proceedings,  and  provided  written   presentations   to   the
commander.  On 9 Mar 98, the commander found that he did commit one or  more
of the  offenses  alleged  and  imposed  punishment  on  him  consisting  of
reduction in grade to the rank of senior airman, forfeiture of $100 pay  per
month for 2 months, and 14 days  of  extra  duty.   Applicant  submitted  an
appeal to his Article 15 punishment.  After consideration of the  facts  and
the applicant's appeal, the appellate authority  suspended  the  portion  of
his punishment, which consisted of forfeiture of 2 months pay for 2 months.

On 14 Apr 98, the applicant was notified  by  his  commander  that  she  was
recommending he be discharged from the Air Force  under  the  provisions  of
AFPD 36-32 and AFI  36-3208,  for  unsatisfactory  duty  performance  and  a
pattern of misconduct consisting of conduct prejudicial to  good  order  and
discipline.  The specific reasons for this action  were  the  aforementioned
Article 15 punishment; on 12 Apr 96, he received Article 15  punishment  for
stealing 25 Erythromycin  tablets,  property  of  the  U.S.  Government  and
unlawful possession and distribution of a legend drug without  prescription;
he received letters of counseling on 7 Mar 96, 17 Sep 96, 28 Feb 97,  6  May
97, and three on 16 May 97; and, he received a letter  of  reprimand  on  16
May 97.  He was advised of  his  rights  in  this  matter  and  acknowledged
receipt of the notification on that same date.  After consulting counsel  he
elected not to waive his right to an administrative  discharge  board.   The
administrative discharge board found that he did commit all of the  offenses
alleged and recommended that he be discharged from  the  Air  Force  with  a
general  (under  honorable  conditions)  discharge  without  probation   and
rehabilitation.  In a legal review of the case file, the acting staff  judge
advocate (JAG) found the case legally sufficient.  On 7  Aug  98,  applicant
was  discharged  from  the  Air  Force  with  a  general  discharge  without
probation and rehabilitation.  He served 12 years, 10 months, and 4 days  on
active duty.

The following is a resume of the  applicant's  Enlisted  Performance  Report
(EPR) profile:

      PERIOD ENDING          PROMOTION RECOMMENDATION

            25 Dec 97        2 - Referral Report
            25 Dec 96        3 - Referral Report
            26 Dec 95        4
            26 Dec 94        4
            29 Mar 94        4
            14 Jun 93        4
            14 Jun 92        4
            01 Nov 91        3
            01 Nov 90        5
            16 Apr 90        4

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request 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 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.  There was sufficient evidence for  the  commander  to  determine
that he committed the offenses alleged.  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.

He claims that the particular evidence of  the  adultery  allegation  should
not have been considered.  He filed suit against the Air Force  and  several
individuals alleging that in using and disclosing  the  information  of  the
tapes, the Air Force violated the Federal Wiretap Act  and  are  liable  for
damages.  The Federal District Court dismissed all claims  against  the  Air
Force,  although  claims  are  pending  against  certain  individuals.   The
Department of Justice has appealed the failure  of  the  District  Court  to
dismiss all  claims.   The  position  of  the  Department  of  Justice,  the
Department of Defense (DoD) and the Air Force is that the  opinions  of  the
Ninth Circuit Court of Appeals  are  not  applicable  to  military  criminal
practice.  The primary issue is whether military criminal  law  is  governed
by the UCMJ and the judicial rulings of the U.S. Supreme Court,  U.S.  Court
of Appeals for the Armed  Forces,  and  the  Air  Force  Court  of  Criminal
Appeals; or, is it subject  to  the  differing  interpretations  of  various
district courts and courts of appeal.  The  issue  is  highlighted  in  this
particular case as federal law in this area is not settled  as  the  circuit
courts of appeal conflict in their holdings.

No one disputes that the military member had  no  authority  to  tape  phone
conversations without either participant's permission.  The  dispute  arises
as to whether that evidence may be used to support  nonjudicial  punishment.
Military Rules of Evidence (MRE 317) do not apply to nonjudicial  punishment
as claimed by the applicant and if they did apply it is far  from  clear  if
they would have required the suppression of the evidence.   Federal  circuit
courts of appeal are split on whether a government  agency  which  does  not
participate in the illegal taping may use the recordings  for  other  proper
purposes.  It is clear that by direction of  the  President,  the  rules  of
evidence applicable to court-martials  do  not  apply  to  procedures  under
Article 15.  Article 15 punishment is a proceeding denominated  by  Congress
as "nonjudicial," which provides only for rather modest penalties and  which
does not constitute a criminal conviction, rather nonjudicial punishment  is
an administrative method of handling minor offenses and is  not  a  criminal
prosecution.  Since it is not considered a conviction of a crime it  has  no
connection with the military court-martial system.   The  Court  of  Appeals
for the Armed Forces recognized that Article 15 punishment  may  be  imposed
without the essential attributes of a criminal trial, such as  confrontation
of adverse witnesses, representation by  counsel,  and  reliance  of  formal
rules of evidence.  This is a classic case of an individual seeking to  have
the benefits of disposition of criminal  offenses  in  a  nonjudicial  forum
with limited powers of punishment, but seeks to have the full protection  of
a full criminal trial.  Because the investigators acted  properly  and  with
"clean  hands"  the  applicant's  commander  appropriately  considered   the
matters on the tapes.  The JAG does  not  recall  specifically  whether  his
attorney listened to the tapes, but recalls making  them  available  to  any
defense counsel who wished to listen to them.  He elected not to  relinquish
control of the tapes but made  them  available  and  at  least  one  counsel
listened to them.

The  applicant  overlooks  the  other  allegations  disposed  of   by   this
nonjudicial punishment, even if the adultery allegation is disregarded,  the
commander also found he  had  committed  the  offenses  of  failure  to  go,
dereliction of duty, and failure to obey the  no-contact  order.   While  he
restates  his  innocence,  his  arguments  were  unpersuasive   before   the
commander and the appellate authority and they are  unpersuasive  now.   The
evidence without the adultery allegation, or even if the entire  Article  15
were set aside, is sufficient to uphold his administrative  discharge.   The
JAJM evaluation is at Exhibit C.

AFPC/DPPRS  reviewed  applicant's  request  and  recommends  denial.   DPPRS
states  that  the  discharge  was  consistent  with   the   procedural   and
substantive requirements of the discharge  regulation  and  was  within  the
sound discretion of the discharge authority.  The  DPPRS  evaluation  is  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that the allegation that he disobeyed  a  no-contact  order
is completely false.  SrA R---- of the Security Forces interviewed Mrs. L---
- and stated "L---- does not recall G----  mentioning  a  no-contact  order"
not that he had received one.  This  was  collaborated  by  SSgt  F----  who
witnessed him contacting Mrs. L---- prior to the no-contact order.  Mrs. L--
-- provided the same information to his ADC and stated in an affidavit on  8
Jul 98 prior to his board hearing and in a Declaration she wrote along  with
his civil suit.  All of this information as made available to his  commander
prior to any actions being taken  against  him.   He  did  not  have  sexual
intercourse with Mrs. L----.  The allegation was  not  only  false  but  was
never proven or established.  Mrs. L----  denied  the  allegation  as  well.
The only evidence that  was  used  against  him  for  the  alleged  adultery
allegation  was  the   unlawfully   intercepted   and   recorded   telephone
conversations, in which he was not speaking to Mrs. L----, but to a  friend.
 A Federal judge has ruled in two summary judgments that the  evidence  used
against him during the Air  Force's  nonjudicial  actions  violated  Federal
wiretapping  statutes  and  was  unconstitutional  and  that  the  illegally
obtained evidence is clearly inadmissible in any way to include its  use  by
the Air Force.  The judge ruled that SSgt  A----  clearly  violated  Federal
wiretapping statutes and that the JAG also committed violations  of  Federal
wiretapping  statutes  when  he  used,  disclosed,  and  allowed  others  to
disclose the contents of the recorded conversations.   SSgt  A----  admitted
to the Security Forces that he knew that his actions were  in  fact  illegal
when he recorded the conversations and handed them over to them.  SSgt F----
, who after repeatedly challenging the use of the  evidence  that  was  used
against him received a set aside from the  wing  commander.   When  the  set
aside was granted, the applicant had already been discharged  from  the  Air
Force.  The Air Force failed to inform either  himself  or  his  counsel  of
this action.  Prior to his discharge, he attempted  to  speak  to  the  wing
commander but he received a phone call from his counsel who was informed  by
the JAG that the wing commander did not wish to meet with him.

The allegation that he was derelict in the  performance  of  his  duties  by
failing to secure patient paperwork  and  straighten  his  workstation,  was
also false.  In his rebuttal he explained to his commander that one or  more
Primary Care physicians had  stayed  late  and  failed  to  properly  secure
patient charts.  His rebuttal included an email response  from  the  Officer
in Charge of the Primary Care Clinic, to an  email  from  the  primary  care
superintendent that "the late  technician  is  not  the  janitor...clean  up
after  yourselves."   After  learning  of  his  punishment  an   email   was
circulated indicating that late technicians were getting blamed for  primary
care providers leaving patient charts in the return chart  box  after  close
of the duty day.  This problem had obviously been  occurring  prior  to  his
Article 15 and continued afterwards.

His failure to go allegation is  the  only  allegation  that  is  true.   He
overslept because of a power failure at his  residence  on  9  Feb  98.   He
accepts full responsibility for his actions but being  late  for  work  does
not normally warrant Article 15 punishment.  Because he was late  for  work,
he felt like his hands were tied.  That was the only reason  he  decided  to
accept Article 15 proceedings.   The  Air  Force  states  that  without  the
Article 15 action he still would have been  discharged  at  that  time.   He
admits that at times he used poor judgment due  to  personal  problems.   He
feels that some of the administrative measures used  against  him  were  not
used to help him but were unfairly carried out to discriminate  against  him
because of his overwhelming personal problems.  Without the  Article  15  he
would have remained on active duty and been honorably discharged at the  end
of his enlistment.

The Air Force knowingly violated Federal Electronic  Communications  Privacy
Act and Washington State wiretapping  statutes  as  well  as  Department  of
Defense  (DoD)  regulations  and  the  Rules  of  Evidence  under  the  MCM.
According  to  AFI  31-206,  the  Office  of  Special  Investigations  (OSI)
Security Investigations Program is the sole Air Force agency  authorized  to
conduct interceptions of communications for law  enforcement  purposes.   In
deciding whether or not he had committed the  offenses  alleged  during  his
Article 15 proceedings, his commander completely ignored the  evidence  that
he and his counsel submitted which supported his innocence.   His  commander
severely abused the authority entrusted in her by  the  Air  Force  and  has
totally disgraced the term  "Commander's  Discretion"  in  this  case.   DoD
policy and the  MCM  clearly  forbid  the  use  of  any  illegally  obtained
evidence.  A November 1997  newsletter  reminds  all  JAG  officers  of  the
inadmissibility of unlawful wiretapping to include  its  use  in  any  court
martial, nonjudicial punishment, or board of inquiry.  The fact that SSgt A-
--- recorded the conversations not under  any  official  capacity,  but  for
personal gain to aid  him  in  his  divorce  does  not  excuse  his  blatant
disregard for Federal and State wiretapping statutes.   The  Air  Force  has
condoned his actions  by  refusing  to  take  action  against  him  for  his
unlawful behavior.  His commander wrote a Letter of Counseling for SSgt A---
-  and  simply  ordered  him  to  cease  and  desist  any  further  unlawful
recordings because it was illegal, which also proves that she knew that  her
own actions were illegal by use of the unlawful evidence.  She stated in  an
affidavit in a civil proceeding that she knowingly used  and  disclosed  the
contents of the unlawful  recordings  that  she  used  against  him  in  the
Article 15 proceeding.

In a class action civil suit filed against SSgt  A----,  the  Federal  judge
ruled that he had in fact violated Federal wiretapping statutes.  He  stated
that the JAG who allowed the unlawful evidence to be  used  against  him  in
his Article 15 proceeding also violated Federal wiretapping  statutes.   The
civil suit he and four other plaintiffs filed was settled out of  court  for
monetary damages.  If the Air Force was able to use the  unlawful  evidence,
why did the Air Force settle for monetary damages.

Federal and State wiretapping statutes clearly apply to  all  State  Federal
government, and military entities.  The military cannot  rewrite  and  apply
the law to fit their needs and apply as they see fit.  The statute is  clear
and does not leave room for interpretation by a military  commander  or  JAG
to enforce, change, or ignore the statutes in an  attempt  to  apply  it  to
nonjudicial punishment or other  administrative  proceeding  and  be  exempt
from the consequence of their actions.  This is the  reason  for  the  civil
suit and the reason that the other Air Force  member  accused  of  the  same
adultery allegations has received a set aside.

Regarding the Air Force position that even without the use of the tapes  and
disregarding  the  adultery  allegation,  the  remaining  allegations   were
sufficient to support nonjudicial punishment, the applicant states  that  in
a sworn affidavit for federal court his commander stated that if  it  hadn't
been for the tapes she would not have known about  the  applicant  and  that
she was not considering Article 15 punishment for any other reason.

In  support  of  his  request,  applicant  provided  a  personal  statement,
additional copies of documents  previously  submitted,  witness  statements,
and additional documents associated with District  Court  proceedings.   His
complete submission, with attachments, is at Exhibit F.

_________________________________________________________________

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 find no evidence of error in this  case
and after thoroughly reviewing the documentation provided in support of  his
appeal, we do not believe he has suffered an injustice.  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  of  record  indicates  that  during  the
processing of the Article 15  action,  the  applicant  was  afforded   every
right to which he was entitled, he was represented by  counsel,  waived  his
right to demand trial by court-martial, and submitted matters for review  by
the imposing commander  and  appellate  authority.   After  considering  the
matters raised by the  applicant,  the  commander  determined  that  he  had
committed "one or more of the  offenses  alleged"  and  imposed  punishment.
After consideration  of  the  matters  presented,  the  appellate  authority
suspended a portion of his punishment.  Persuasive  evidence  has  not  been
provided which would lead us to believe that the imposing commander  or  the
reviewing  authority  abused  their  discretionary   authority,   that   his
substantial rights were violated during the processing  of  the  Article  15
punishment, or that the punishment exceeded the maximum  authorized  by  the
UCMJ.  With respect to his request that he be reinstated onto  active  duty,
evidence has not been provided which would  lead  us  to  believe  that  the
action taken to affect  his  discharge  was  improper  or  contrary  to  the
provisions of the governing regulations at the time; or, that  the  decision
to discharge him was based on factors other than his own documented  pattern
of misconduct.  Therefore, we agree with the Air Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not been the victim of an  error  or  injustice.   In
the absence of persuasive 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  01-00662  in
Executive Session on 26 Feb 03, under the provisions of AFI 36-2603:

      Ms. Charlene M. Bradley, Panel Chair
      Mr. Frederick R. Beaman III, Member
      Mr. Albert J. Starnes, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Feb 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 18 Oct 01.
    Exhibit D.  Letter, AFPC/DPPRS, dated 7 Dec 01.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Dec 01.
    Exhibit F.  Letter, Applicant, dated 1 Sep 02, w/atchs.




                                   CHARLENE M. BRADLEY
                                   Panel Chair