RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  02-02168
                                        INDEX CODE:  126.04
                                        COUNSEL:  NONE

                                        HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonjudicial punishment under Article 15 and any  reprimands  be  removed
from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The charges were false and were brought against him as  retaliation  for  an
EEO complaint he previously filed.  These false  allegations  and  injustice
have had an adverse affect on his current federal employment.

The applicant does not provide any supporting  documents.   His  application
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 18 October 1985.  He  was
progressively promoted to the grade of sergeant (E-4).  He performed  duties
in the Air Force Specialty Code (AFSC) X1A251,  Loadmaster.   He  served  in
this capacity until 31 October 1995, when he  was  honorably  released  from
active duty, having served 10 years and 13 days in the  Regular  Air  Force.
After having been released from active duty, he was transferred to  the  Air
Force Reserve  and  assigned  to  the  Nonobligated  Nonparticipating  Ready
Section (NNRPS).  He was honorably discharged from  the  Air  Force  Reserve
effective 31 October 1998.

On 22 May 1995, the applicant’s commander imposed nonjudicial punishment  on
the applicant, who was then serving in the grade of sergeant  for  violation
of Article 92; for failing to check the light to  the  aft  ramp  and  door,
failing to check to see if everyone was  strapped  in,  and  not  wearing  a
restraining harness on or about 26 January  1995,  and  derelection  in  the
performance of his  duty  in  that  he  willfully  failed  to  refrain  from
drinking alcoholic beverages while on alert on or  about  2  February  1995.
The punishment consisted of a reduction in  grade  to  airman  first  class,
suspended until 19 October 1995 unless sooner vacated, it would be  remitted
without further action, forfeiture of $250.00 pay per  month  for  2  months
and 30 days of extra duty.   He  appealed  the  punishment  and  a  superior
commander denied his appeal.  The foregoing proceedings  were  reviewed  and
found legally sufficient by the Assistant Staff  Judge  Advocate  on  6 June
1995.

The remaining relevant facts pertaining to his  nonjudicial  punishment  are
contained in the letter prepared by the appropriate office of the Air  Force
at Exhibit C.

_________________________________________________________________

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 submitted no evidence to justify his  assertion  of  innocence
and to support his charge of retaliation for filing an EEO  compliant.   The
applicant  argues  that  his  medical  records  show  no  trace  of  illegal
substance  or  alcohol  use.   This  statement  is  aimed  at   the   second
specification of the Article 15 that he  failed  to  refrain  from  drinking
alcoholic beverages while on  alert.   Even  if  a  requirement  existed  to
address alcohol use in medical records, it  is  irrelevant  to  whether  the
applicant  was  guilty  of  dereliction  of  duty  for  drinking   alcoholic
beverages while on alert.  Regarding  the  reprimands  the  applicant  would
like removed from his records, the applicant provides no  information  about
the nature of the reprimands and none are in his record.  When  evidence  of
an error or injustice is missing, it is clear that the BCMR process  is  not
intended to simply second-guess the  appropriateness  of  the  judgments  of
field commanders.  Commanders “on  the  scene”  have  first-hand  access  to
facts and a unique appreciation for the needs of morale  and  discipline  in
their command that even  the  best-intentioned  higher  headquarters  cannot
match.  JAJM concludes that  there  are  no  legal  errors  exist  requiring
corrective action and do not recommend relief.  The JAJM  evaluation  is  at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was  forwarded  to  the  applicant  on  6
September 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.  Evidence  has  not  been  presented  which
would lead us to believe that the nonjudicial punishment, imposed on 22  May
1995, was 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  this  Article  15,  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  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  15  be
removed from his records.  As to the applicant’s request  that  any  letters
of reprimand be removed from his records, since his records contain no  such
letters, action by the Board on this request is not required.

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 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 AFBCMR Docket No. 02-02168  in
Executive Session on 6 February 2003 under the provisions of AFI 36-2603:

      Mr. Thomas S, Markiewicz, Vice Chair
      Mr. Mike Novel, Member
      Ms. Rita S. Looney, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 July 2002.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 26 August 2002.
    Exhibit D.  Letter, SAF/MRBR, dated 6 September 2002.





                                   THOMAS S. MARKIEWICZ
                                   Vice Chair