RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-02479
            INDEX CODE:
            COUNSEL:  Department of Veterans
                          Affairs (DVA)

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be restored to the grade of staff sergeant.

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APPLICANT CONTENDS THAT:

Mitigating family problems contributed to his 27  days  of  absence  without
leave (AWOL) and subsequent reduction in rank.  He lost his wife and  family
after his return from Vietnam because his family did not  want  anything  to
do with him.  He now has a son-in-law who is currently  on  active  duty  in
the Air Force and his reduction  in  rank  causes  him  great  distress  and
embarrassment.

In support of his request,  applicant  provided  a  Department  of  Veterans
Affairs (DVA) Report of Contact.  His complete submission, with  attachment,
is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Navy on 8 Dec 60  and  was  discharged
on 17 Nov 64.  On 1 Nov 67 he enlisted in the Regular  Air  Force.   He  was
progressively promoted to the grade of staff sergeant, having  assumed  that
grade effective and with a date of rank of 1 Jul 71.

On 10 Oct 74, applicant was notified by  his  commander  of  his  intent  to
impose nonjudicial punishment under Article 15, UCMJ.  The  specific  reason
for this action was that  on  3  Sep  74,  without  authority,  he  absented
himself from his organization until on or about 25 Sep 74.  He  acknowledged
receipt of the notification on 16 Oct 74.  He was advised of his  rights  in
this matter and after consulting counsel; he  waived  his  right  to  demand
trial by court martial, accepted Article 15 proceedings, and  provided  oral
and written presentations to the commander.  On 16  Oct  74,  the  commander
found that he did commit one or more of the  offenses  alleged  and  imposed
punishment consisting of reduction in grade to sergeant  and  forfeiture  of
$200 pay per month for 2 months.  That portion of his  punishment  providing
for forfeiture of pay for 2 months was suspended until 8 Apr  75,  at  which
time it was remitted.  Applicant  elected  not  to  appeal  the  Article  15
punishment.

On 1 Oct 76, applicant submitted a request for discharge from the Air  Force
for hardship reasons, under the provisions of Chapter  3,  AFM  39-10.   The
discharge authority approved his request on 14 Oct  76.   He  was  honorably
discharged on 15 Oct 76.  He served 12, years, 10 months,  and  22  days  on
active duty.  He had 23 days time lost.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends the Board assert  the
statute of limitation and  deny  the  application.   JAJM  states  that  the
applicant does not contend that he was denied procedural or substantive  due
process.  He does not contend that any error or injustice  occurred  in  the
nonjudicial punishment proceedings.  He admitted the AWOL but attributed  it
to the cumulative stress incurred  as  a  result  of  the  break-up  of  his
marriage and the ongoing conflict with his workplace supervisor.  He  offers
no evidence or argument in support of the relief  he  seeks.   He  does  not
claim  that  he  is  factually  innocent  or   that   the   punishment   was
disproportionately harsh.  With his decision to concur  in  the  commander's
decision to address the allegation in the nonjudicial punishment forum,  the
applicant vested the commander with the fact finding  and  punishment  power
in this case.  After  reviewing  the  evidence  before  him,  the  commander
determined that there was sufficient evidence  that  the  accused  committed
the offense charged.  The commander considered  the  arguments  and  weighed
the severity of the offense and determined that a one-stripe  reduction  was
warranted.  His decision was subject to appeal by the applicant, who  waived
that right.  The burden of proof  rests  with  the  applicant  to  show  the
commander erred.  He has failed  to  produce  any  evidence  to  carry  that
burden.   The  punishment  was  well  within  the  parameters  set  out   in
applicable instructions.  There  is  no  evidence  that  it  was  unjust  or
disproportionately harsh given all the factors and circumstances before  the
commander.  The commander suspended  the  forfeitures,  thus  providing  the
applicant a measure of relief.  A set aside should only be granted when  the
evidence demonstrates an error or a clear injustice.   The  JAJM  evaluation
is at Exhibit C.

AFPC/DPPPWB  reviewed  applicant's  request,  and  concurs  with  the   JAJM
recommendation that the application should be  time-barred.   If  the  Board
decides  to  consider  the  application  on  its  merits,  then  denial   is
recommended.  The DPPPWB evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  18
Oct 02 for review and comment within 30 days.  As of this date, this  office
has received no response.

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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 that would warrant restoration to the  grade
of staff sergeant.  We find no evidence of error  in  this  case  and  after
thoroughly reviewing the evidence of  record,  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  the  Article  15  action,
the applicant was offered every right to which  he  was  entitled.   He  was
represented by counsel, waived his right to demand trial  by  court-martial,
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 or more of the offenses  alleged"  and
imposed punishment on the applicant.  The applicant  has  not  provided  any
evidence showing  that  the  imposing  commander  abused  his  discretionary
authority or that the punishment exceeded  the  maximum  authorized  by  the
UCMJ.  Therefore, based on the available evidence  of  record,  we  find  no
basis upon which to favorably consider this application.

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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.

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The following members of the Board  considered  Docket  Number  02-02479  in
Executive Session on 15 Jan 03, under the provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Billy C. Baxter, Member
      Ms. Brenda L. Romine, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Jul 02, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 13 Sep 02.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 4 Oct 02.
    Exhibit E.  Letter, SAF/MRBR, dated 18 Oct 02.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair