RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-01078
            INDEX CODE:  111.02, 126.03

            COUNSEL:  JOSEPH W. KASTL

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Enlisted Performance Report (EPR) rendered for the  period  16 Sep
00 through 5 Mar 01 be declared void and removed from his records.

His EPR rendered for the period 6 Mar 01 through 30 Sep 01 be declared
void  and  removed  from  his  records;  and,  that  the   report   be
reaccomplished with the evaluation  rewritten  and  considered  for  a
senior-level indorsement by the wing commander.

The nonjudicial punishment under Article 15 imposed on 29  Dec  00  be
set aside and removed from his records.

All allied  derogatory  actions  and  comments  be  deleted  from  his
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

After he stopped a dangerous driver, he accidentally struck him.   The
driver then stabbed him. The Article 15 he received for this  incident
was not appropriate because he did not instigate the attack.

He was under stress which might have caused him  to  make  poor  value
judgments.

He was promised that no disciplinary action would be taken.

He was blindsided by the lack of a timely official notification of the
group commander's intent to place the  Article  15  in  his  selection
folder.

He was the victim of selective punishment.

The group commander exerted inappropriate pressure  on  him  regarding
the Article 15.  She delayed the decision on filing the Article 15  in
his selection folder until after he exercised his option to appeal  or
not appeal.

He was not given the opportunity to respond to the additional referral
remarks made later by additional raters of the EPR closing 5 Mar 01.

He was denied the wing commander's indorsement on his EPR  closing  30
Sep 01 because of the Article 15.

He was not provided sufficient time to reply to the Article 15,  which
was highly unfair to a career noncommissioned officer (NCO).

The Unfavorable Information File (UIF) was not initiated in  a  timely
manner because of a lack of communication between the group  commander
and the squadron commander.

The incident was one minor error in judgment in an  otherwise  stellar
career, and no civil charges were filed against him.

In support of his appeal, the applicant provided  a  counsel's  brief,
copies of  documentation  pertaining  to  the  Article  15,  contested
reports, and other documents associated with the matter under review.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently serving on active duty in the grade of
master sergeant, having been promoted to that grade on 1 May 98.   His
Total Active Federal Military Service Date (TAFMSD) is 2 Aug 83.

Applicant's EPR profile since 1992 follows:

     PERIOD ENDING                            EVALUATION

       8 Feb 92        5
       8 Feb 93        5
       8 Feb 94        5
       8 Feb 95        5
       8 Feb 96        5
       8 Feb 97        5
       8 Feb 98        5
       8 Feb 99        5
       8 Feb 00        5
      15 Sep 00        5
  *    5 Mar 01        4 (Referral)
  *   30 Sep 01        5
      30 Sep 02        5

* Contested reports.

On 29 Dec 00, the  applicant  received  nonjudicial  punishment  under
Article 15 for unlawfully striking another  individual  (civilian)  in
the mouth with his hand on 24 Nov 00.  He was reduced from  the  grade
of master sergeant to technical sergeant, which was suspended until 28
Jun 01, after which it was remitted, and was ordered to  forfeit  $500
per month  for  two  months.   The  applicant  did  not  appeal.   The
appellate authority indicated that the Article 15 would  be  filed  in
the applicant's UIF.

On 5 Jan 01, the group  commander  notified  the  applicant  that  she
intended to place the record of  his  Article  15  punishment  in  his
Senior Noncommissioned Officer (SNCO) Selection Record.  The applicant
acknowledged receipt and, on 9 Jan 01, provided  a  statement  on  his
behalf.

On 10 Jan 01, the group commander determined that the Article 15 would
be filed in the SNCO Selection Record.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial noting the applicant's contentions  that
he was promised that no action would be taken  against  him  regarding
the incident, and that the punishment he  received  was  selective  in
nature.  According to AFLSA/JAJM, no such promise was made nor did the
applicant’s submission make out  such  a  promise.   Even  if  such  a
“promise” had been made, all commanders in the  applicant’s  chain  of
command possessed authority to impose nonjudicial punishment upon  him
and a decision by a lower commander  is  not  binding  upon  a  senior
commander.  In addition, one important factor  has  not  been  pointed
out.  To reduce a  master  sergeant  in  an  Article  15  action,  the
commander must  be  at  least  a  lieutenant  colonel.   Although  not
specified, they noted that the squadron commander who signed  the  EPR
is a major.  It is common practice to defer Article  15  action  to  a
commander who has the authority to impose an  appropriate  punishment.
In this case, the first eligible commander in the chain of command was
the group commander, a colonel, who in  fact  was  the  commander  who
imposed punishment and did impose a reduction.  The imposition  of  an
Article 15 was within the group commander’s authority and it  was  not
clear how this punishment could be considered selective.

AFLSA/JAJM noted the argument that the Article 15's placement  in  the
applicant's selection folder was done in an untimely manner  and  that
the process took a month and a half.  In their view, the timeframe was
incorrect.  The  Article  15  process  was  begun  on  20 Dec  00  and
punishment  was  imposed  on  29  Dec  00.   The  New  Year's  holiday
intervened.  On 5 Jan 01, a  memorandum  was  sent  to  the  applicant
informing him the Article 15 would be placed in his selection  folder.
On 9 Jan 01, the applicant responded.  On  10 Jan  01,  the  commander
made the final decision to file the  Article  15  in  the  applicant’s
selection folder.  The arguments of untimeliness are unfounded,  given
the timeline described.

According to AFLSA/JAJM, no inappropriate pressure was placed  on  the
applicant regarding the decision to appeal or not appeal  the  Article
15.  The decision to file the action in a selection  folder  was  made
essentially contemporaneous with the decision  to  impose  punishment.
Because the commander imposing punishment was  not  a  general  court-
martial convening authority, the  decision  to  file  was  subject  to
review by the next senior  commander  under  any  circumstances.  This
reviewing commander was also the same commander to whom the appeal  of
the Article 15 action would have been made.  There  was  no  advantage
gained  by  the  commander  or  lost  by  the  applicant  under  these
circumstances.  Similarly, any  UIF  action  was  also  mandated.   An
Article 15 action where the punishment is  not  executed  immediately,
i.e., where the punishment is suspended or forfeiture of  pay  extends
for more than one month, is a mandatory UIF entry.  UIF  placement  of
an Article 15 with punishment that takes effect immediately is at  the
discretion of the commander.

The applicant asserts that he was denied an extension to consult  with
counsel before accepting the Article 15.  On the AF Form 3070 that the
applicant signed, he  initialed  he  understood  his  rights  and  had
consulted with a lawyer.  Additionally, there was no evidence that the
applicant  requested  an  extension  from  the   squadron   commander.
Applicant should not be heard now to contradict his statements at  the
time of the proceeding.

 The applicant stated that as the UIF was not initiated  until  Mar 01
and was backdated, this was unfair.  The commander directed the UIF be
established on 29 Dec 00.  The interim disposition date was  the  date
the punishment or suspension period was completed (28 Jun 01  in  this
case).  This is the date before which the  entry  cannot  be  removed.
The actual disposition date is two years from the date  the  commander
imposed the punishment (28 Dec 02 in this case).  This  is  the  date,
when absent any other entry, the UIF entry would be removed.   In  the
applicant’s case, even though the UIF was backdated,  the  calculation
of time of the UIF would not change despite initiation  in  March  01.
There was no harm to the applicant.

 AFLSA/JAJM indicated that the applicant’s complaint about the  result
was also unwarranted.  He made his election to resolve the  allegation
in the nonjudicial forum after having been advised that his  commander
would make the decision whether he had  committed  the  offenses.   He
placed  the  responsibility  with  his  commander  to  weigh  all  the
evidence, including the credibility of the various witnesses, and make
a decision, instead of demanding his right to trial by  court-martial,
with all its attendant rights and formal procedure.  He chose  instead
to handle the issue in the less formal nonjudicial  punishment  forum,
with its much less severe consequences.  There was sufficient evidence
for the commander to determine the offense had  been  committed.   The
applicant’s arguments clearly failed to  convince  the  commander  who
imposed punishment and he chose not to appeal.  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.

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.  In the case  of
nonjudicial punishment, Congress (and the Secretary  via  AFI  51-202)
have  designated  only  two  officials  with  the  responsibility  for
determining the appropriateness of  an  otherwise  lawful  punishment:
the commander and the appeal authority.  So long as they are  lawfully
acting within the scope  of  authority  granted  them  by  law,  their
judgment should not be disturbed just because others  might  disagree.
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.
Applicant has not shown an error or irregularity in the process of the
Article 15 proceedings.

In AFLSA/JAJM's view, a set aside of the Article  15  should  only  be
granted when the evidence demonstrates an error or a clear  injustice.
The evidence presented by the applicant was  insufficient  to  warrant
setting aside the Article  15  action,  and  did  not  demonstrate  an
equitable basis for relief.  The applicant has provided no evidence of
a clear error or  injustice  related  to  the  nonjudicial  punishment
action.  AFLSA/JAJM indicated that  they  defer  to  AFPC  as  to  the
question of the  appropriateness  of  the  removal/alteration  of  the
applicant’s EPR.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPE recommended denial.  They  indicated  that  the  5  Mar  01
report was referred and processed in accordance with AFI  36-2406.   A
report is a referral when an evaluator places a mark in the  far  left
hand block of any performance factor in Section III (reference AFI 36-
2406, paragraph 3.9.1.1) or comments are ".... derogatory  in  nature,
imply/refer to behavior  incompatible  with  or  not  meeting  minimum
standards of personal or professional conduct, character, judgment  or
integrity, and/or refer to disciplinary actions,” (reference  AFI  36-
2406, paragraph 3.9.1.2).  The additional rater’s mark in Section III,
Item 3, Leadership, is in the second to the left block and  is  not  a
referral mark.  Further, although the comment in  question  is  not  a
positive one, it clearly indicates standards were met.   It  does  not
meet the standards for a referral.  It appears to be  a  clarification
of  the  additional  rater’s  mark  in  Section  III,  Item 3.    More
importantly, an  evaluator  must  address  downgraded  markings,  thus
meeting the intent of the AFI.

Regarding  the  applicant's  contention  that  he  was  not  given  an
opportunity for senior rater indorsement  on  his  30  Sep  01  report
because of the  Article  15,  AFPC/DPPPE  stated  that  there  was  no
evidence the decision to close out the report at  the  senior  rater’s
deputy was based on either the Article  15  or  the  actual  incident.
Therefore, even if the AFBCMR voids the  Article  15,  the  report  is
still valid as written.

According to AFPC/DPPPE, it is Air Force  policy  that  an  evaluation
report is accurate as written when it  becomes  a  matter  of  record.
They contend that once a report is accepted  for  file,  only  strong,
clear evidence to the contrary warrants correction or removal from  an
individual’s  record.   The  applicant  did  not  provide   convincing
evidence to show the evaluations to be erroneous or unjust or that the
lack of a senior rater indorsement on his 30 Sep 01 report was due  to
the Article 15.

A complete copy of the AFPC/DPPPE evaluation is at Exhibit D.

AFPC/DPPPWB  indicated  that  they  defer  to  the  recommendation  of
AFLSA/JAJM.  However, should the AFBCMR grant his  request  to  remove
the 5 Mar 01 referral report and void the Article 15, providing he  is
otherwise eligible, the applicant would be  entitled  to  supplemental
promotion consideration beginning with cycle 0lE8.  As  stated  by  HQ
AFPC/DPPPE, there was no evidence to show the lack of a  senior  rater
indorsement on the 30 Sep  01  report  was  due  to  the  Article  15;
therefore, the report is valid as written.

A complete copy of the AFPC/DPPPWB evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant  on  4
Oct 02 for review and response.  By  letter,  dated  23  Oct  02,  the
applicant requested that his case be  temporarily  withdrawn  (Exhibit
G).

Counsel reviewed  the  advisory  opinions  and  furnished  a  response
indicating that, as is  typical,  they  sided  with  "management"  and
minimized  the  applicant's  contentions.   The  applicant  did  elect
nonjudicial punishment under Article 15 but  presumed  that  he  would
have a reasonable opportunity to defend himself  at  a  fair  hearing.
Sadly, the commander had already made up her mind.  The applicant  was
denied an  extension  to  meaningfully  consult  with  counsel  before
accepting the Article 15.  Once the applicant told  the  commander  he
would not appeal, she backstabbed him and filed the negative matter in
his selection  folder  and  effectively  denied  him  promotion.   The
applicant was doing his best to salvage his career--he  presumed  that
his selection folder would be "clean" if he  declined  to  appeal  the
commander's decision.  The reason he failed to receive a senior  rater
indorsement was the  complained  of  Article  15.   Although  the  key
document against him was a police report, the applicant  continues  to
insist that the report is highly inaccurate.

According to counsel, the applicant has amassed  a  marvelous  record,
and he continues to "soldier on."  His  work  is  impeccable  and  his
leadership is dedicated.  He is president-elect of  the  Davis-Monthan
Top 3 Association and his squadron's nominee for  the  2002  Lance  P.
Sijan  Leadership  Award.   He   is   Chairperson   for   the   Senior
Noncommissioned Officer (SNCO) Induction Seminar.   He  has  completed
his bachelor's degree  in  Professional  Aeronautics.   Clearly,  this
aberration should not destroy  his  upward  movement.   The  offending
Article 15 should be removed from his records and he  should  be  made
whole.

Counsel's complete response, with attachments, is at Exhibit I.

_________________________________________________________________

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.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find  the  applicant’s  assertions  or  the
documentation  presented  in  support  of  his   appeal   sufficiently
persuasive to override the rationale provided by the Air Force offices
of primary responsibility (OPRs).  The evidence  of  record  indicates
that the applicant's commander determined that he  had  committed  the
alleged offense of unlawfully striking another individual in the mouth
with his hand, and made the decision to impose nonjudicial  punishment
under Article 15.  The applicant elected not to appeal the punishment.
 We  are  not  inclined  to  disturb  the  discretionary  judgment  of
commanding officers, who are closer to events, absent a strong showing
of abuse of that authority.  Also, in light of our conclusion that the
Article 15 should not be removed, we find no evidence which would lead
us to believe that the contested reports were inaccurate depictions of
the applicant's performance at the time they were rendered.  In  fact,
the applicant provided a statement from his commander indicating  that
he did not receive a senior rater indorsement on his  EPR  closing  30
Sep 01 because of the Article 15.  In view of the  foregoing,  and  in
the absence  of  clear-cut  evidence  to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

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 AFBCMR Docket Number BC-
2002-01078 in Executive Session on 8 Jul 03, under the  provisions  of
AFI 36-2603:

      Mrs. Barbara A. Westgate, Chair
      Mr. Roscoe Hinton, Jr., Member
      Ms. Carolyn J. Watkins-Taylor, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 18 Jun 02.
    Exhibit D.  Letter, AFPC/DPPPE, dated 13 Sep 02.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 16 Sep 02, w/atch.
    Exhibit F.  Letter, SAF/MRBR, dated 4 Oct 02.
    Exhibit G.  Letter, applicant, dated 23 Oct 02.
    Exhibit H.  Letter, AFBCMR, dated 30 Oct 02.
    Exhibit I.  Letter, counsel, dated 9 Jan 03, w/atchs.




                                   BARBARA A. WESTGATE
                                   Chair