RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01884
            INDEX CODE:  107.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that he was not demoted to the  grade
of technical sergeant (E6), that he retired in  the  grade  of  master
sergeant (E7, and that his retirement  pay  be  corrected  to  reflect
retirement in the grade of master sergeant.

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APPLICANT CONTENDS THAT:

The Article 15 he received for committing adultery was too harsh  when
considering his exemplary service  record  and  because  this  act  of
misconduct, which was committed while he was separated from his  wife,
was his only mistake.

In support of his request, applicant submits a personal statement, and
a copy of his DD Form 214, Certificate of Release  or  Discharge  from
Active Duty.

Applicant’s complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 7 February 1977 for
four (4) years as an airman basic.  He was a master sergeant  assigned
to the --- AFB, California when his commander informed him on  7  June
1991, that he was  considering  Article  15,  UCMJ,  action.   He  was
accused of adultery in violation of Article 134,  UCMJ.   On  11  June
1991, without consulting with counsel, the applicant waived his  right
to demand trial by court-martial and accepted nonjudicial  punishment.
He did not request a personal appearance with the commander nor submit
a written statement.  On 11 June 1991, his commander  determined  that
he committed the offense alleged and imposed punishment consisting  of
a reduction in grade to technical sergeant (E6).   The  applicant  did
not appeal.  The record was found legally sufficient on 17 June  1991.
The applicant voluntarily retired due to a reduction of force  in  the
grade of technical sergeant on 30 September 1994 with over 18 years of
active duty service.

On 6 August 2001,  the  SAF  Personnel  Council  determined  that  the
applicant served satisfactorily in the grade of master  sergeant.   It
directed the applicant’s advancement in  grade  on  the  retired  list
effective 7 October 2006 (completion of 30 years active  plus  service
on the retired list).

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  Nonjudicial punishment is permitted  by
Article 15, UCMJ (10 U.S.C. 815),  and  governed  by  the  Manual  for
Courts-Martial (MCM) and Air  Force  Instruction  (AFI)  51-202.   The
procedure permits commanders to dispose of  certain  offenses  without
trial by court-martial unless the service member objects.  By electing
to resolve the allegation in the nonjudicial forum,  applicant  placed
the responsibility to decide whether he had committed the offense with
his commander.  Likewise, the commander was given  the  responsibility
to determine an appropriate punishment if he determined the  applicant
had committed the offense.  There  was  sufficient  evidence  for  the
commander to determine the offense had been  committed.   Neither  the
commander’s findings nor punishment are arbitrary  or  capricious  and
should not be disturbed.

The applicant’s military records reveal he will eventually get some of
the relief he is requesting.  On 6  August  2001,  the  SAF  Personnel
Council determined the applicant served satisfactorily in the grade of
master sergeant.  It directed the applicant’s advancement in grade  on
the retired list effective the date  of  completion  of  all  required
service.

A set aside should only be granted when the evidence  demonstrates  an
error or a clear injustice.  The evidence presented by  the  applicant
is insufficient to warrant setting aside the Article  15  action,  and
does not demonstrate an equitable basis for relief.

The AFLSA/JAJM evaluation is attached at Exhibit C.

AFPC/DPPPWB  recommended  the  applicant's  request  be  denied.   The
demotion action taken against the applicant was  procedurally  correct
and there is no evidence there were any  irregularities  or  that  the
case was mishandled.  Since there is no evidence of error or injustice
related to the  demotion  action,  recommend  applicant’s  request  be
denied.

The DPPPWB evaluation is attached at Exhibit D.

AFPC/DPPRRP recommends denial.  In accordance with Section 8961, Title
10, U.S.C., applicant was correctly retired in the grade of  technical
sergeant, which was the grade he held on the date of his retirement.

The law which allows for advancement of enlisted members  of  the  Air
Force, when their active service plus  service  on  the  retired  list
totals 30 years, is very specific in its application and intent.  On 6
August 2001, the SAF/PC made the determination that the applicant  did
serve satisfactorily in the higher grade of master sergeant within the
meaning of Section 8964, Title 0, U.S.C. and he will  be  advanced  to
the grade of master sergeant effective 7 October 2006.

The DPPRRP evaluation, with attachments is attached at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the advisories and states that he was never
informed of his right to have his case reviewed and feels that retired
member’s should be afforded the opportunity for help after retirement.

He also states that after he was  reassigned  to  Turkey,  his  former
commander contacted his commander to discuss a possible set  aside  of
the Article 15 that he received.  He contends  that  he  was  unjustly
handed this punishment and also believes that his commander wanted  to
reduce the punishment after the applicant was  reassigned  to  another
organization.  The applicant states that at the time of the offense he
had served over 18 years and received numerous medals and  decorations
and the punishment he received was uncalled for.   His  acceptance  of
the Article 15 punishment was  not  an  admission  of  guilt,  but  an
acknowledgement of the punishment imposed.

His complete submission is at Exhibit G.

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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.  After a thorough review  of  the
applicant’s submission and the available evidence of  record,  we  are
not persuaded that the relief requested should be  granted.   We  took
notice of the complete submission in judging the merits of  the  case;
however, we agree with the opinions and  recommendations  of  the  Air
Force office of primary responsibility and adopt  their  rationale  as
the basis for our conclusion that the former member has not  been  the
victim of an error or injustice.  There  was  no  evidence  presented,
other than his own assertions, which would lead us to believe that his
records should be corrected to show that he retired in  the  grade  of
master sergeant.  Therefore, we find no compelling  basis  to  warrant
favorable consideration of the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be  notified  that  the  evidence  presented  did  not
demonstrate the existence of an 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  no   considered   with   this
application.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2003-
01884 in Executive Session on 21 October 2003, under the provisions of
AFI 36-2603:

                 Ms. Olga M. Crerar, Panel Chair
                 Mr. Roscoe Hinton, Member
                 Ms. Kathleen F. Graham, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 29 May 03, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 7 Jul 03.
      Exhibit D. Letter, AFPC/DPPPWB, dated 25 Jul 03.
      Exhibit E. Letter, AFPC/DPPRRP, dated 18 Aug 03, w/atchs.
      Exhibit F. Letter, SAF/MRBR, dated 22 Aug 03.
      Exhibit G. Letter, Applicant, dated 28 Aug 03.







      OLGA M. CRERAR
      Panel Chair