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AF | BCMR | CY2003 | BC-2003-02193
Original file (BC-2003-02193.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2003-02193

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on 4 September 2002 and all records  of  disciplinary
actions on the issue, be removed from his records.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

He received the Article 15 due to a miscommunication.

In support of the appeal, the applicant submits a letter  of  recommendation
from his dorm manager who states that it was commonplace for  bay  orderlies
to be released to their rooms  on  a  stand-by-status  for  details  in  the
facility, and believes the applicant had not been given clear guidelines  or
misunderstood his release from bay orderly duty.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted his enlistment in the Regular Air Force on
28 March 2001.  He was progressively promoted to the grade of airman first
class.

On 28 August 2002, the commander notified the applicant  of  his  intent  to
impose nonjudicial punishment under  Article  15  of  the  Uniform  Code  of
Military Justice (UCMJ) for  violating  Article  86  (i.e.,  Absent  Without
Authority (AWOL)).  Specifically,  for  absenting  himself  from  his  unit,
without  authority,  from  19 to 26 August  2002.   After  consulting  legal
counsel, he waived his right to a trial by court-martial  and  accepted  the
nonjudicial  punishment.   After   considering   the   applicant’s   written
submission, on 4 September  2002,  the  commander  determined  that  he  did
commit the alleged offense and imposed punishment  consisting  of  reduction
to the grade of airman, restriction to Osan AB  for  30  days,  30  days  of
extra duty, and a reprimand.   He  appealed  the  punishment;  however,  his
appeal was denied.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied and states,  in  part,  that
the commander’s findings should not be disturbed unless  it  is  shown  they
were arbitrary or capricious.  The commander is  in  the  best  position  to
determine the appropriate course of action and still has the ability to  set
aside the action.  A  set  aside  should  only  be  granted  when  there  is
evidence of an error or injustice.   The  applicant  has  provided  no  such
evidence.  Unlike his behavior during the prior week, when he  reported  for
bay orderly duties and was turned away and returned  to  his  duty  station,
this time he interpreted that statement to mean that he should wait  in  his
room for a call from the dorm manager.

The AFLSA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 8 August 2003 for review and response within 30  days.   However,  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.  We find no evidence of error in this  case
and after thoroughly reviewing  the  documentation  applicant  submitted  in
support of his appeal, we do not believe he has suffered from an  injustice.
 Evidence has not been presented which would lead us  to  believe  that  the
nonjudicial punishment, initiated  on  28  August  2002  and  imposed  on  4
September 2002 was improper.  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 this  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 he had committed the offense alleged and imposed  punishment.   He  has
not provided any  evidence  showing  that  the  imposing  commander  or  the
reviewing  authority  abused  their  discretionary   authority,   that   his
substantial rights were violated during the processing  of  the  Article  15
punishment, 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.

_________________________________________________________________

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-2003-02193
in Executive Session on 8 October 2003, under  the  provisions  of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Martha Maust, Member
                       Mr. Michael V. Barbino, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, undated.
    Exhibit D.  Letter, SAF/MRBR, dated 8 Aug 03.




                                   THOMAS S. MARKIEWICZ
                                   Chair

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