RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  02-03180
                                        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:

He did not violate Article 95 (resisting arrest) of the UCMJ.  At  the  time
of the incident, he had complete confidence that his former commander  would
dismiss  the  Article  15  after  listening  to   his   oral   and   written
presentation.  Consequently, the number of security  forces  statements  may
have forced his former commander to impose punishment on him  regardless  of
whether he was telling the truth.  He  pleaded  with  his  former  commander
that he did not commit any violation.  Regardless of the outcome,  he  feels
ashamed that his integrity, reputation, and good name were tarnished in  the
15-minute incident.  While he was assigned to the MPF at Osan,  he  was  the
base Personnel Reliability Program  manager,  Special  Duty  Assignment  Pay
manager and focal point for all arrivals to Osan.  He  was  responsible  for
managing the most critical personnel program in the  MPF.   Because  of  his
leadership  drive,  he  was  one  of  a  few  staff  sergeants  who  held  a
supervisory rating position.  Due to his  position  he  was  well  known  to
leadership and his reputation as an exemplary NCO was important to him.   He
sought every opportunity to  excel  and  volunteer.   He  can  honestly  say
without a doubt that he was the hardest and most  deserving  worker  in  the
MPF.  He went to complete a full 12 months’  duty  with  no  break,  nonstop
work, to include working on Saturdays and Sundays.  At  times,  it  was  not
uncommon for him to work 20 hours a day.  His date of separation is  6  June
2003.  He has to decide if the Air Force is right for him or if  he’s  right
for the Air Force.  He loves being in the Air Force and would be  privileged
to continue his career, however, he is also concerned with  progression  and
feels that this Article 15 will surely sink his  chances  of  achieving  the
grades of senior and chief master sergeant.

In  support  of  his  appeal,  applicant  provides  a  personal   statement,
documents associated with his Article  15,  a  copy  of  a  Security  Forces
Incident Report, supporting statements and character references;  copies  of
his  Letters/Certificates  of  Appreciation,  Enlisted  Performance  Reports
(EPRs) for the period beginning 7 June 1995 and ending 1 April  2002  and  a
listing of his  awards  and  decoration.   His  complete  application,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 7 June 1995, the applicant enlisted  in  the  Regular  Air  Force  for  a
period of 4 years.  He was progressively promoted to  the  grade  of  senior
airman (E-4).  On 7 June 1999, he  reenlisted  and  has  been  progressively
promoted to the grade of staff sergeant (E-5), effective and with a date  of
rank of 1 February 2001.  He has a current date  of  separation  of  6  June
2003.

      PERIOD ENDING    PROMOTION RECOMMENDATION

        18 Feb 97                 5
        04 Oct 97                 4
        28 Sep 98                 NOT RATED - REPORT REMOVED
                       BY ORDER OF THE SECAF
        28 Sep 99                 5
    01 Jul 00                                5
    01 Apr 01                                5
    01 Apr 02                                4

On 17 April 2002, the applicant’s commander imposed  nonjudicial  punishment
on the applicant for violation of Article 95, for  resisting  arrest  on  or
about 10 March 2002.  The punishment consisted of a reduction  in  grade  to
senior airman, suspended until 14 May 2002 when, unless sooner  vacated,  it
would be remitted without further action, forfeiture of $876.00 pay  and  30
days of restriction to Osan Air Base, Republic of Korea.  On 23 April  2002,
after  considering  the  applicant’s  appeal,  the  commander  modified  the
punishment of forfeiture of pay to $438.00 and restriction  to  base  to  23
days.  The foregoing proceedings were reviewed and found legally  sufficient
by the Assistant Staff Judge Advocate on 24 April 2002.

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 this case  illustrates  the  difficulties  in  addressing  the  factual
issues involved in nonjudicial  punishment.   By  electing  to  resolve  the
allegation in the nonjudicial forum, he placed the responsibility to  decide
whether he had committed the offense  with  his  commander.   Likewise,  the
commander  was  given  the  responsibility  to  determine   an   appropriate
punishment if the commander  determined  the  applicant  had  committed  the
offense.  The commander had to weigh all the evidence before him,  including
the credibility of  the  various  witnesses,  to  make  his  decision.   The
commander ultimately resolved the issue of the  alleged  misconduct  against
the applicant.  The applicant appealed only the severity of the  punishment,
not the nonjudicial punishment action  itself.   The  applicant  got  relief
once when the commander  reconsidered  his  determination  and  granted  the
applicant’s appeal from the Article 15 punishment by reducing its  severity.
 The applicant has provided no  evidence  of  a  clear  error  or  injustice
related to the nonjudicial punishment action.  The  JAJM  evaluation  is  at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that  he  believes  his  case  is  with  merit  because  he
contends that he did not commit any violation of the UCMJ and his  character
and demeanor should support his contention.  He feels confident that he  has
provided a  complete  and  accurate  written  testimony  of  his  case  with
details.  He admits that he cannot prove that the  security  forces  omitted
and exaggerated the truth.  However, he contends  that  they  did.   He  can
honestly state that he did not grab a security forces member  or  any  other
member by the shirt or otherwise and that he did walk away after giving  his
I.D. card to a security force.  This  is  an  incident  that  got  blown  up
bigger than it needed to be.  He believes the security forces’  inexperience
and inability to diffuse the situation caused undue and unnecessary  action.
 He respectfully asks with dignity the Board review and judge his case  with
compassion and decide in the best interests of the Air Force.

The applicant’s letter, with attachments, is at Exhibit E.

On  24  April  2003,  the  applicant  submitted  two  additional   character
references and a copy of his latest EPR (See 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.  Evidence  has  not  been  presented  which
would lead us to believe that the  nonjudicial  punishment,  imposed  on  17
April 2002, was improper.  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 indicates that  during  the  processing  of
this Article 15, the applicant was offered  every  right  to  which  he  was
entitled.  He  consulted  with  counsel,  and  submitted  written  and  oral
matters for review by the imposing commander and was given  the  opportunity
to present his  arguments.   The  imposing  commander  determined  that  the
applicant did commit the offense  and  imposed  punishment.   The  applicant
appealed the punishment and after considering  the  matters  raised  by  the
applicant in his appeal, the commander  modified  his  original  punishment.
There is nothing in  the  evidence  provided,  other  than  the  applicant’s
assertions, which would lead us to believe that the actions by the  imposing
commander were inappropriate or that he did not have access to  all  of  the
appropriate information necessary  on  which  to  base  his  decision.   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  this  Article  15
punishment, or that the punishment exceeded the maximum  authorized  by  the
UCMJ.  Therefore, we defer to the opinion of legal authority regarding  this
issue and find no evidence of error or injustice.  Accordingly, we  find  no
basis upon which to favorably consider his request.

_________________________________________________________________

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 in  Executive  Session  on  30
April 2003 under the provisions of AFI 36-2603:

      Mr. Wayne R. Gracie, Panel Chair
      Mr. Frederick R. Beaman, III, Member
      Ms. Brenda L. Romine, Member

The following documentary  evidence  for  AFBCMR  Docket  No.  02-03180  was
considered:

    Exhibit A.  DD Form 149, dated 5 Oct 02 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 13 Jan 03.
    Exhibit D.  Letter, SAF/MRBR, dated 31 Jan 03.
    Exhibit E.  Letter, Applicant, dated 5 Feb 03 w/atchs.
    Exhibit F.  Letter, Applicant, dated 24 Apr 03 w/atchs.





                                   WAYNE R. GRACIE
                                   Panel Chair