RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02083
            INDEX CODE:  126.04

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

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

His under other than honorable conditions (UOTHC) discharge be voided.

_________________________________________________________________

APPLICANT CONTENDS THAT:

(DD Form 149 undtd - A1)

The nonjudicial punishment grossly violated the  United  States  Code,
Manual for Courts-Martial, and AFI 51-202.

He was denied administrative due process and  his  constitutional  and
Uniform Code of Military Justice (UCMJ) rights were violated.

He was not  guilty  of  the  allegations,  and  insufficient  evidence
existed to warrant nonjudicial punishment.

The nonjudicial punishment was imposed by an officer  other  than  his
commanding officer and was not personally imposed.

The nonjudicial punishment was legally insufficient and he was  denied
proper legal advice.

In support of his appeal, the applicant provided a personal brief.

Applicant's complete submission, with attachments, is at Exhibit A1.

(DD Form 149 dtd 4 Jan 03 - A2)

The  Show  Cause  Authority  failed   to   procure   his   involuntary
administrative discharge in compliance with AFI 36-3206, AFI  36-3207,
and other relevant statutes.  The resulting prejudice deprived him  of
his constitutional due  process,  equal  protection,  and  fundamental
fairness.  The injustices, individually and  cumulatively  demonstrate
occurrences warranting the voiding of  the  discharge  action.   These
deviations and noncompliance with AFI 36-3206 or AFI 36-3207 overcomes
the presumption of regularity in governmental affairs.

There was no evidence  of  any  UCMJ  misconduct  on  his  part  which
warranted  and  substantiated  involuntary  discharge   action.    The
discharge action was  based  largely  on  unsubstantiated  allegations
which had been introduced on an erroneous  Article  15  given  to  him
immediately prior to  the  Show  Cause  order.   In  contrast  to  the
requirements of AFI 36-3206, the Show Cause Authority initiated  these
proceedings without valid proof of any misconduct by him.

The manner in which the proceedings were conducted was prejudicial  to
his rights.  He was in civil confinement and was not paid at any  time
during the entire period  encompassing  these  discharge  proceedings.
Accordingly, he was deprived of  legitimate  assistance  of  qualified
counsel.  In addition, he was hospitalized prior to the  date  of  the
proposed Board  of  Inquiry  (BOI),  and  was  suffering  from  mental
conditions rendering him  unfit  to  participate  in  the  proceedings
whatsoever or defend himself.  Having  signed  the  BOI  waiver  under
duress and with diminished capacity, he contends that it was  invalid.
This  occurrence  overcomes   the   presumption   of   regularity   in
governmental affairs.  The discharge should therefore be voided.

In support of his appeal, the applicant provided a personal brief.

Applicant's complete submission, with attachment, is at Exhibit A2.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant  was  appointed  a  second  lieutenant  on  16  Jun  95  and
voluntarily ordered to extended active duty.

Applicant's available military records indicate that on 27 Nov 00,  he
received an  Article  15  for,  between  23  Oct  98  and  16 Aug  00,
wrongfully using the Air Force electronic mail  (e-mail)  systems  for
unofficial, unauthorized, uses by sending 294 non-mission  related  e-
mails to a married woman which  were  of  a  highly  personal  nature,
referencing lovemaking, expressing  love,  torment,  love  poems,  and
personal greeting cards, and receiving over 100 non-mission related e-
mails; between  1  Nov  98  and  1 Apr 00,  wrongfully  having  sexual
intercourse with a married woman; and, between 25 Jul 00  and  18  Sep
00, willfully disobeying a  lawful  order  to  cease  and  desist  all
contact with a married woman.  He was ordered to forfeit $1500 for two
months and reprimanded.

On 7 Dec 00, the  applicant's  commander  initiated  discharge  action
against the applicant for serious misconduct.

On 26 Mar 01, the applicant submitted an unconditional waiver  of  his
rights to an administrative discharge board proceeding.

On 29 Mar 01, legal authority recommended acceptance of the waiver and
a UOTHC discharge.

On  1  Jun  01,  the  Secretary  of  the  Air   Force   approved   the
administrative  board  waiver  and  directed  that  the  applicant  be
furnished a UOTHC discharge.

Applicant was discharged on 8 Jun 01 under the provisions of  AFI  36-
3207 (Misconduct)  and  was  furnished  a  UOTHC  discharge.   He  was
credited with 8 years, 11 months, 25 days of active service.

On 17 Jan 02, the Air Force Board for Correction of  Military  Records
(AFBCMR) considered and granted the applicant's request for  base  pay
and allowances that were not paid to him while he was on  active  duty
and incarcerated in a civilian  confinement  facility  awaiting  trial
(Exhibit C).

On 23 Jan 03, the Air Force  Discharge  Review  Board  considered  and
denied the applicant’s request for upgrade of his UOTHC  discharge  to
honorable and change of the reason and authority for his discharge.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating  that  there  was  sufficient
evidence  for  the  commander  to  determine  the  offenses  had  been
committed.  While different fact-finders may have come to a  different
conclusion,  the  commander's  findings  were  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,
the President 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.

In AFLSA/JAJM's view, a set aside 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.  He has provided no evidence of a  clear  error  or  injustice
related to the nonjudicial punishment action.

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

AFPC/DPPRS  recommended  denial   indicating   that   based   on   the
documentation in the file, they believe the discharge  was  consistent
with the procedural and  substantive  requirements  of  the  discharge
regulation, and was within the discretion of the discharge  authority.
In AFPC/DPPRS' view, the applicant did not submit any new evidence  or
identify any errors or  injustices  that  occurred  in  the  discharge
processing, and did not provide any facts warranting an upgrade of his
discharge.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter, dated 9 Jun 03, the applicant indicated that  he  does  not
want the Board to consider any issues related to his discharge at this
time.  He only wants the Board to consider the matter of  his  request
to set aside the Article 15 and nothing further (Exhibit G).

Applicant provided a rebuttal response regarding the Article 15 issue.
 He indicated that the arguments he has presented overwhelmingly prove
that one or more of his rights were compromised and violated.  He  was
prejudiced in so many respects,  and  contends  that  the  information
presented in the AFLSA/JAJM advisory opinion was not  proof.   He  was
not allowed to see the proof  against  him  and  asserts  that  it  is
because it  did  not  exist.   He  was  denied  the  right  to  appear
personally; he was in jail.  He prays that  the  Board  will  see  the
inherent prejudice of this fact and remove the Article 15.

Applicant's complete response, with attachments, is at Exhibit H.

_________________________________________________________________

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 regarding the applicant's  request
that his nonjudicial punishment under Article  15  be  set  aside  and
removed from his records.  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 AFLSA/JAJM.  The evidence  of  record  indicates
that the applicant received nonjudicial punishment  under  Article  15
for wrongfully using the Air  Force  e-mail  systems  for  unofficial,
unauthorized, uses by sending 294 non-mission  related  e-mails  to  a
married woman which were of  a  highly  personal  nature,  referencing
lovemaking,  expressing  love,  torment,  love  poems,  and   personal
greeting  cards;  receiving  over  100  non-mission  related  e-mails;
wrongfully having  sexual  intercourse  with  a  married  woman;  and,
willfully disobeying a lawful order to cease and  desist  all  contact
with  a  married  woman.   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, which  has
not occurred in this case.  In view  of  the  foregoing,  and  in  the
absence of clear-cut evidence to  the  contrary,  we  agree  with  the
recommendation of the AFLSA/JAJM and  adopt  their  rationale  as  the
basis for our decision that the applicant has failed  to  sustain  his
burden of establishing that he has suffered  either  an  error  or  an
injustice.  Accordingly, we find  no  compelling  basis  to  recommend
granting the applicant's request.

4.  The portion of  the  application  pertaining  to  the  applicant's
request  that  his  under  other  than  honorable  conditions  (UOTHC)
discharge be voided was not considered, as requested by the applicant.

5.  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-
2002-02083 in Executive Session on 7 Oct 03, under the  provisions  of
AFI 36-2603:

      Mr. Robert S. Boyd, Panel Chair
      Ms. Leslie E. Abbott, Member
      Mr. John B. Hennessey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Forms 149, undated and dated 4 Jan 03,
                w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum for Chief of Staff, dated 17 Jan 02,
                w/atchs.
    Exhibit D.  Letter, AFLSA/JAJM, dated 15 Apr 03.
    Exhibit E.  Letter, AFPC/DPPRS, dated 29 Apr 03.
    Exhibit F.  Letter, SAF/MRBR, dated 9 May 03.
    Exhibit G.  Letter, applicant, dated 9 Jun 03.
    Exhibit H.  Applicant's Rebuttal Statement, undtd, w/atchs.




                                   ROBERT S. BOYD
                                   Panel Chair