RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03183
            INDEX CODE:  111.02, 131.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Enlisted Performance Reports (EPRs) rendered for the periods
17 January 1998 through 16 January 1999 and 17 January 1999  through
16 January 2000 be declared void and removed from his records.

2  The punishment imposed on him under Article 15,  Uniform  Code  of
Military Justice (UCMJ), dated 16 September 1999 be removed.

3.  He be reconsidered for promotion to technical sergeant based  on
what his WAPS score would have been  but  for  the  above  contested
documents.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was falsely arrested and punished prior to arraignment.   Squadron
authorities failed to remove any documents, performance  ratings,  or
punishments that were influenced  by  the  above  arrest  when  civil
charges were dropped.  He was  subjected  to  double  standards  when
punished by Squadron officials for offenses when no actual proof  was
present.   His  supervisors  refused  to  accept  responsibility  for
illegal computer configurations that they instituted.   No  feedbacks
were administered for most of a reporting period, and then when  they
were, wrong forms were used and he was held to  the  standards  of  a
senior noncommissioned officer.  He was punished  with  a  letter  of
counseling (LOC) and an Article 15 for the same offense.

In support of the appeal, applicant submits a personal statement,  an
excel document that briefs impositions and documents associated  with
the issues  under  appeal.   Applicant's  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular  Air  Force  in  the
grade of staff sergeant, with an effective date and date of  rank  for
the promotion of 1 September 1997.  His total active Federal  military
service date is 24 August 1988.  He entered his most recent enlistment
on 28 August 1997, when he reenlisted for a period of 6 years.   Based
on subsequent  extensions  of  this  enlistment,  information  in  the
personnel data system indicates he currently has an  established  date
of separation of 27 December 2006.  His High Year of Tenure date is  1
August 2008.

His Enlisted Performance Report (EPR) profile since 1996 reflects  the
following:

      PERIOD ENDING                 EVALUATION OF POTENTIAL

          5 Aug 96                        5
          5 Aug 97                        5
         16 Jan 98                        5
        *16 Jan 99                        3
        *16 Jan 00                        2 (Referral)
         30 Nov 00                        4
         14 Oct 01                        4
         14 Oct 02                        5

      *Contested Reports.  The applicant did not appeal the
       reports to the Evaluation Reports Appeal Board (ERAB).

Documents provided by the applicant reveal the following actions.

The applicant was issued a No Contact Direct Order to have no  contact
with his spouse or her family  members.   On  30  December  1998,  the
applicant was issued a Letter of Reprimand (LOR)  for  assaulting  his
spouse on or about  22  December  1998.   The  applicant  acknowledged
receipt of the LOR and submitted additional  matters  for  review  and
requested that the LOR be removed.  On 22 June 1999, the applicant was
issued  a  Letter  of  Reprimand  (LOR)  for  violation   of   general
instructions on the use of and access  of  a  government  computer  by
accessing  and  downloading  pornographic  materials.   The  applicant
acknowledged  receipt  and  submitted  additional  matters   for   the
commander’s review, requesting that the LOR be terminated.   Documents
concerning the disposition of his requests concerning the LORs are not
a matter of record.

On 9 September 1999, the applicant’s commander notified the  applicant
that he was considering whether to impose  nonjudicial  punishment  on
the applicant under Article 15, UCMJ, based on  allegations  that  the
applicant had been derelict  in  the  performance  of  his  duties  by
negligently failing to properly tie down a trailer and secure the live
bombs as directed by the pertinent Technical Order.  The applicant was
advised of his rights in the matter.  After  consulting  counsel,  the
applicant waived his  right  to  demand  trial  by  court-martial  and
accepted  the  nonjudicial  proceedings.  He  requested   a   personal
appearance before the commander and provided written comments for  the
commander’s review.  After considering the matters  presented  by  the
applicant, the commander determined he had committed one  or  more  of
the  offenses  alleged  and  imposed  punishment  on   the   applicant
consisting of a reduction in grade to senior airman  (E-4),  suspended
until 15 March 2000, after which time, unless sooner vacated, it would
be remitted without further action.  He was also ordered to perform 45
days of extra duty.  The applicant acknowledged receipt of the  action
and elected not appeal the punishment.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states that nonjudicial punishment is permitted by  Article
15, UCMJ (10 U.S.C. 815), and  governed  by  the  Manual  for  Courts-
Martial and Air Force  Instruction  51-202.   This  procedure  permits
commanders to dispose of certain  offenses  without  trial  by  court-
martial unless the service member objects.  Service members first must
be notified by their commanders of the nature of the charged  offense,
the evidence supporting the offense, and of the commander’s intent  to
impose nonjudicial punishment.  The service member  may  then  consult
with a defense counsel to  determine  whether  to  accept  nonjudicial
punishment proceedings or demand trial  by  court-martial.   Accepting
the proceedings is simply a choice of forum; it is not an admission of
guilt.

A member accepting  nonjudicial  punishment  proceedings  may  have  a
hearing with the commander.  The member may have a  spokesman  at  the
hearing, may request  that  witnesses  appeal  and  testify,  and  may
present evidence.  The commander must consider any information offered
during that hearing and must be convinced that  the  member  committed
the offense before imposing punishment.  Members who wish  to  contest
their commander’s determination or  the  severity  of  the  punishment
imposed may appeal to the next higher commander.  The appeal authority
may set aside the Article 15, set aside the punishment,  decrease  the
severity of the punishment, or deny the appeal.

The applicant’s argument that he  was  punished  twice  for  the  same
offense is, in JAJM’s opinion, without merit.  The applicant submitted
evidence that in August 1999 he received an LOC  from  his  supervisor
for failing to properly secure a bomb on a trailer.   An  LOC  is  not
considered punishment.  An LOC is an administrative tool authorized by
AFI 36-2907 “to improve, correct, and instruct subordinates who depart
from standards of performance, conduct, bearing, and integrity, on  or
off  duty,  and  whose  actions  degrade  the  individual  and  unit’s
mission.”  The applicant’s conduct resulted  in  live  ammunition  not
being well secured during its transport.  Because of the  severity  of
the applicant’s action,  the  commander  determined  that  nonjudicial
punishment  was  necessary.   The  applicant’s   commander   carefully
considered the evidence, including the applicant’s written matters and
personal  appearance,  before  making  a  decision.   The  commander’s
decision to impose nonjudicial punishment in this situation was lawful
and appropriate.

Unless it is shown that the commander’s findings were either arbitrary
or capricious, they 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) has  given  the  commander
the  authority  to  determine  the  appropriate   forum   to   address
misconduct.  Once a commander determines nonjudicial punishment is the
appropriate forum, the accused can reject the  nonjudicial  punishment
and demand trial by court-martial.  If the accused accepts  and  later
appeals,  the  appellate  authority  can  set  aside  the  nonjudicial
punishment.  So long as they are lawfully acting within the  scope  of
authority granted them by law,  the  judgment  of  the  commander  and
appellate authority 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 this case, the applicant  accepted  the  nonjudicial
punishment forum and did not appeal.

In reference to the applicant contending that it was  a  violation  of
his constitutional rights to get a Letter of Reprimand (LOR) before he
was convicted, that he was acquitted of all prior  civil  charges  and
charged  with  disorderly  conduct,  and   the   civilian   conviction
eventually was set aside as if  it  never  happened;  they  state  the
following:  Like an LOC, an LOR  is  an  administrative  tool,  not  a
punishment.  A commander may take an  administrative  action  when  he
believes it is warranted by the military member’s conduct.  Commanders
should take administrative action promptly and need not wait  for  the
outcome of civilian adjudication.  Moreover,  the  applicant  was  not
acquitted of the charges of assault  and  unlawful  imprisonment.   He
entered into a plea agreement in which he pled  guilty  to  disorderly
conduct; the assault and unlawful  imprisonment  charges  were  either
dismissed or not brought against him.  He agreed  to  pay  a  fine  of
$1000 (with $750 suspended), serve  10  days  in  jail  (with  9  days
suspended and 1 day time served), attend anger management classes, and
be on summary probation for one year.   After  he  had  completed  the
conditions of his sentence, the applicant applied for the judgment  to
be set aside.  The set aside was granted; however,  that  action  does
not signify a finding of not guilty nor does it mean it is  as  if  it
never happened.

A set aside should only be granted when the evidence  demonstrates  an
error or a clear injustice.  The basis of the applicant’s request  for
relief is insufficient to warrant setting aside the Article 15 action,
and does 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.   Therefore,  they  recommend  that  no
relief be granted.

A complete copy of the evaluation is attached at Exhibit C.

AFPC/DPPPE  recommended  denial.   DPPPE  states  that  there  are  no
derogatory comments  contained  in  the  16  January  1999  EPR.   The
applicant cited no errors in this EPR and,  in  DPPPE’s  opinion,  the
applicant has failed to  prove  the  documented  performance  in  this
report was inaccurate.  As to the  report  closing  16  January  2000,
DPPPE indicated that, based on the JAJM opinion that no  evidence  has
been provided to show the Article 15 action was  erroneous  or  unjust
and in view of the regulatory provisions which encourage evaluators to
comment in performance reports on misconduct that reflects a disregard
of the law  or  adverse  actions  such  as  Articles  15,  Letters  of
Reprimand, Admonishment or Counseling, or  placement  on  the  Control
Roster, the applicant has again failed to prove  that  the  documented
performance in the January 2000 report is inaccurate.   Based  on  the
above, DPPPE strongly recommends denial of the applicant’s request  to
void the contested reports.

A complete copy of their evaluation is attached at Exhibit D.

AFPC/DPPPWB states that they defer to the recommendation of AFLSA/JAJM
regarding the Article 15 and AFPC/DPPPE regarding the removal  of  the
two reports.  Noting the fact that the  contested  documents  affected
the applicant’s eligibility and  consideration  for  promotion  during
cycles 00E6 and 01E6, should  the  Board  decide  in  the  applicant’s
favor, his total scores would not increase sufficiently to render  him
a select for either cycle.

A complete copy of their evaluation, with attachment, is  attached  at
Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 7 March 2003, copies of the Air Force evaluations were forwarded to
the applicant for review and response within  30  days.   As  of  this
date, this office has received no response.

_________________________________________________________________

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.   After  reviewing
the evidence of record, we are not persuaded  that  the  applicant’s
records are in error or that he has been the victim of an injustice.
 His contentions are noted; however, in our  opinion,  the  detailed
comments provided by the appropriate Air  Force  offices  adequately
address those allegations.  Therefore, we agree  with  opinions  and
recommendations of the Air Force and adopt their  rationale  as  the
basis for the conclusion that the applicant has not been the  victim
of an error or  injustice.   In  the  absence  of  evidence  to  the
contrary, we find no compelling  basis  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 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  this  application,  BC-
2002-03183,  in  Executive  Session  on  14  August  2003,  under  the
provisions of AFI 36-2603:

                       Mr. Joseph A. Roj, Panel Chair
                       Mr. Christopher Carey, Member
                       Mr. Michael K. Gallogly, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 2 Oct 02, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 30 Dec 02.
      Exhibit D. Letter, AFPC/DPPPE, dated 4 Feb 03.
      Exhibit E. Letter, AFPC/DPPPWB, dated 13 Feb 03.
      Exhibit F  Letter, AFBCMR, dated 7 Mar 03.




                             JOSEPH A. ROJ
                             Panel Chair