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AF | BCMR | CY2003 | BC-2002-04076
Original file (BC-2002-04076.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-04076
            INDEX NUMBER:  126.00
      XXXXXXXXXXXXXX   COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 1 Jul 97 be set aside and all  rights
and property of which he was deprived be restored.

The referral Enlisted Performance Report (EPR) rendered on him for the
period 8 May 97 through 7 May  98  be  voided  and  removed  from  his
record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His ex-wife fabricated the charges against him.  She manipulated
their children to support her claims of spousal  abuse.   His  ex-wife
has provided him a statement recanting her earlier claims.  His oldest
child has also written a statement  verifying  that  false  statements
were given to the Office of Special Investigation (OSI).

In support of his appeal, the applicant provides a  statement  of  his
account of the Article 15 action, a copy of the Article 15 and  appeal
actions, a copy of his record of performance, and a  recent  statement
from his daughter.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active  duty  in  the  grade  of
master sergeant (MSgt) (E-7).  He enlisted in the Air Force on  24 Aug
82.  In Jan 97, while he was serving in the grade of  MSgt  (E-7),  an
OSI investigation was initiated on the applicant due  to  his  alleged
aggravated assault of his dependent wife at their off-base  residence.
The applicant’s wife also made claims that  the  applicant  physically
and sexually abused her on several occasions.  The  OSI  investigation
was concluded on 19 May 97.  On 13 Jun 97, the  applicant’s  commander
offered him proceedings under Article 15 for an alleged  violation  of
Article 128, Uniform Code of Military Justice (UCMJ), for  assault  on
his wife.  On   23 Jun 97, the applicant  accepted  proceedings  under
Article 15 and submitted a written presentation.  On  1  Jul  97,  the
applicant’s commander determined that the applicant had committed  the
alleged offense.  He imposed  punishment  consisting  of  a  six-month
suspended reduction to technical sergeant (E-6), forfeiture of $973.00
per month for two  months,  and  a  reprimand.   On  10  Jul  97,  the
applicant appealed the punishment and submitted a written presentation
for consideration by  the  appeal  authority.   The  appeal  authority
granted the applicant’s appeal to reduce the amount of  forfeiture  to
$650.00 per month for two months.  The other part  of  the  punishment
remained the same.  A resume of the applicant’s last ten EPRs follows:

        Closeout Date             Overall Ratings

          03 Jan 94                     5
          23 Aug 95                     5
          23 Aug 96                     5
          07 May 97                     5
         *07 May 98                     3
          31 Jan 99                     4
          31 Jan 00                     5
          02 Jan 01                     5
          16 May 01                     5
          02 Mar 02                     5

*  Contested referral report.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to  set  aside
his Article 15.  After receiving nonjudicial punishment, a member  can
apply to his commander or superior commander  for  set  aside  of  the
punishment.  When a commander decides  that  a  member  who  has  been
punished, or is being punished, has suffered a “clear injustice,”  the
commander can cancel the punishment in whole or in  part  and  restore
the member’s rights, privileges, or  property  accordingly.   In  this
case, the commander concluded that the  applicant  had  assaulted  his
wife.  The applicant’s successor commander, from  whom  the  applicant
requested a set aside, came to the same conclusion, even after reading
the recanted statement from the applicant’s wife.  When an application
is timely filed, the legal office that processed the Article 15  often
can provide the evidence supporting the action.  In  this  case,  more
than five years have passed and the evidence is  no  longer  available
for review.  The applicant has not provided evidence of a clear  error
or injustice related to the Article 15 action.

The complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPPE recommends denial of the applicant’s request to remove  his
referral  EPR  from  his  record.   The  applicant  did  not   provide
substantiated evidence that his 7 May 98 EPR was in error  or  unjust.
The rating chain simply documented adverse information  that  occurred
during the rating period in accordance  with  AFI  36-2402,  paragraph
1.2.1.

The complete evaluation is at Exhibit D.

AFPC/DPPPWB   provides   information   regarding    the    applicant’s
supplemental consideration for promotion should the 7 May  98  EPR  be
voided.  The applicant will be  eligible  for  supplemental  promotion
consideration beginning with cycle 99E8 should the Board void the EPR.

The complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
9 May 03 for review and comment within 30 days.  To date,  a  response
has not been received.

_________________________________________________________________

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.   We  took  notice  of   the
applicant's complete submission in judging the merits of the case,  in
particular, the letters authored by his daughter and ex-wife; however,
we are not persuaded that the applicant has  been  the  victim  of  an
error or injustice.  We especially found the letter from  his  ex-wife
recanting her allegations against him problematic.  As pointed out  by
AFLSA/JAJM, the letter has no return address, is not dated,  and  does
not provide a phone number or other means by  which  to  contact  her.
Finally, the letter states: “so I know the purpose is to  help  him  I
expect contact with me to come through him first.   That  way  I  will
know that I am only doing things that will help him and he  will  know
that I am not doing anything else to hurt him.”  Even if we accept the
letter on its face, this statement causes us  to  wonder  whether  its
intent is to right a wrong done to the applicant or  to  mitigate  the
consequences he has suffered, regardless of whether he  committed  the
stated offenses.  As noted in AFLSA/JAJM’s evaluation, the applicant’s
commander considered this same letter before she denied his request to
set aside his Article 15.  Finally, although the actions taken against
the applicant may have been instigated by  his  ex-wife’s  allegations
against him, the commander only took action after an investigation  by
the OSI substantiated misconduct on the applicant’s part.  We  do  not
find the actions of the applicant’s  commander  in  this  case  to  be
either arbitrary or capricious.  Therefore, 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 Docket  Number  BC-2002-
04076 in Executive Session on 2 July 2003, under the provisions of AFI
36-2603:

      Mr. Robert S. Boyd, Panel Chair
      Mr. James W. Russell, III, Member
      Ms. Nancy Wells Drury, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 21 Feb 03.
    Exhibit D.  Memorandum, AFPC/DPPPE, dated 11 Apr 03.
    Exhibit E.  Memorandum, AFPC/DPPPWB, dated 17 Apr 03.
    Exhibit F.  Letter, SAF/MRBR, dated 9 May 03.




                                   ROBERT S. BOYD
                                   Panel Chair


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