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AF | BCMR | CY2003 | 0202600
Original file (0202600.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  02-02600
                                        INDEX CODE:  126.04
                                        COUNSEL:  NONE
                                        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 was  given  because  of  racial  prejudice.   The  airman  in
question apologized  and  admitted  to  him  that  he  was  at  fault.   The
commander threw the book at him.

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 14  June  1965.   He  was
progressively promoted to the grade of sergeant (E-4).

On 4 November 1968, nonjudicial punishment  was  offered  to  the  applicant
under Article 15, UCMJ for committing an  assault  upon  another  airman  by
striking him on the shoulder  with  his  hand.   On  5  November  1968,  his
commander imposed punishment with a  suspended  reduction  to  airman  first
class and forfeiture of $40 of his pay.

On 13 December 1968, he was honorably  released  from  active  duty,  having
served 3 years and 6 months in the Regular Air  Force.   After  having  been
released from active duty, he was transferred to the Air Force  Reserve  and
remained there until 6 April 1970.  On 7 April  1970,  he  enlisted  in  the
California Air National Guard and remained there until 22 May 1986  when  he
was honorably released and  transferred  to  the  California  Army  National
Guard.  He had served 15 years, 3 months and 24 days in the CA ANG.   As  of
the Retirement Year Ending 5 August 1986, he was credited with 19  years,  4
months and 1 day of satisfactory federal service.

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’s assertion that the victim later  claimed  that  the  assault
was the victim’s fault is  unsupported.   Likewise,  there  is  no  evidence
presented to support the applicant’s  claim  that  the  punishment  was  the
result of racial prejudice.  Due to the untimely filing of the  application,
supporting documentation is  no  longer  available.   However,  there  is  a
presumption  that  the  applicant’s  nonjudicial   punishment   action   was
conducted in the normal manner and the Board  may  presume  that  there  was
sufficient evidence for the commander to  determine  the  offense  had  been
committed.  The JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On behalf of the applicant, a pastor submits a  character  reference  letter
and requests that the Article 15 be  removed  from  the  applicant’s  files.
The incident occurred over 34 years  ago.   A  copy  of  the  letter  is  at
Exhibit E.

_________________________________________________________________

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.  The applicant's  complete  submission  was
thoroughly reviewed and his contentions were duly  noted.   However,  we  do
not find the applicant’s uncorroborated assertions  sufficiently  persuasive
to override the rationale provided  by  the  Air  Force  office  of  primary
responsibility (OPR).  The evidence of record indicates that  the  applicant
received nonjudicial punishment under Article  15  for  wrongfully  striking
another airman  on  the  shoulder.   Other  than  his  own  assertions,  the
applicant has provided no evidence, which would lead us to  believe  he  did
otherwise or that the actions taken to effect  this  nonjudicial  punishment
were improper.  Therefore, the Board is not inclined to remove this  Article
15 from the applicant’s records absent a strong showing that  the  commander
who   imposed   the   punishment   abused   his   discretionary   authority.
Accordingly, the Board concludes that no basis exists 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 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 02-02600  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 9 August 2002.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 20 September 2002.
    Exhibit D.  Letter, SAF/MRBR, dated 4 October 2002.
    Exhibit E.  Character Reference Letter, dated 6 November
                2002.





                                   THOMAS S. MARKIEWICZ
                                   Vice Chair

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