RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-02292
                                       INDEX CODE:  131.00
      XXXXXXXXXXXXXXXXXX                COUNSEL: None

      XXXXXXXXXXX                            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to the grade of technical sergeant (E-6).
_________________________________________________________________

APPLICANT CONTENDS THAT:

He is requesting the Board approve his request based on  clemency.   He  has
redeemed himself with his conduct and  duty  performance  after  his  court-
martial conviction. The grade of technical  sergeant  is  commensurate  with
his skill level.

In support of his application, he provides a personal statement, a  copy  of
his  court-martial  clemency   package,   copies   of   numerous   character
references,  and  a  copy  of  his  court-martial  sentencing  order.    The
applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving  on  active  duty  with  a  Total  Active
Military Service Date (TAFMSD) of 14 October  1986.   Prior  to  the  events
under review, the applicant  was  progressively  promoted  to  the  rank  of
master sergeant  (E-7).   Information  extracted  from  the  Personnel  Data
System  reflects  eight  Enlisted   Performance   Report   (EPR)   promotion
recommendations of “5” for  the  rating  periods  ending  12  December  1995
through 31 January 2002.  He entered his most recent enlistment  on  8  July
2002, when he reenlisted for a period of five years.   He  currently  has  a
date of separation of 7 August 2007 and a High Year of Tenure Date (HYT)  of
31 October 2006.

According to the Air Force office of primary responsibility, on or about  17
July 2002, Security Police Forces discovered  the  applicant  committing  an
act of adultery.  He was offered nonjudicial  punishment  under  Article  15
Uniformed Code of Military Justice (UCMJ); however, he demanded a  trial  by
court-martial.  On 22-23 October 2002, he was  tried  by  a  special  court-
martial  for  one  specification  of  adultery  and  one  specification   of
obstruction of justice.   He  was  found  guilty  of  one  specification  of
adultery and was sentenced to a reduction in grade to senior  airman  (E-4).
On 19 December 2002, after a review of clemency  matters  submitted  by  the
applicant, the convening authority approved a sentence and ordered  it  into
execution.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  It is JAJM’s  opinion  that  the  applicant’s
contentions constitute neither error nor injustice.  JAJM  states  that  the
applicant demanded court-martial rather than accept nonjudicial  punishment,
as was his right.  The maximum punishment the  applicant  would  have  faced
under  nonjudicial  punishment  was  the  loss  of  one  stripe   in   rank,
forfeitures, correctional  custody,  extra  duties,  and/or  restriction  to
specified limits.  At trial, the applicant faced a maximum punishment  of  a
bad conduct discharge, confinement for one year,  forfeiture  of  two-thirds
pay per month for one year, a fine, and  a  reduction  in  grade  to  airman
basic (E-1).  The applicant chose court-martial knowing  the  potential  for
increased punishment.  Nevertheless, the court sentenced  him  to  far  less
than  the  maximum.   During  his  court-martial,  the   applicant   offered
mitigating circumstances in his  defense  including  his  excellent  service
record, statements from his supporters, as well as noting his commitment  to
the Air Force.  The court-martial members also had evidence that earlier  in
2002, the applicant was  given  a  letter  of  admonishment  for  soliciting
married women to have sex.  In fact, his previous commander had  issued  him
an order in May 2002 to not solicit married women for  any  type  of  dating
relationship.  The letter of admonishment additionally addressed  the  issue
of the applicant’s integrity.  The adjudged sentence  indicates  the  court-
martial members considered both the applicant’s mitigating factors  and  his
history.

JAJM states that there is no legal basis  for  upgrading  or  advancing  the
applicant’s rank.  The appropriateness of the applicant’s  sentence,  within
the prescribed limits, is a matter  within  the  discretion  of  the  court-
martial and may be mitigated  by  the  convening  authority  or  within  the
course of the appellate review process.  The applicant  had  the  assistance
of counsel in presenting extenuating and mitigating matters  in  their  most
favorable light to the court and the  convening  authority.   These  matters
were considered in  the  establishment  and  review  of  the  sentence.   He
presents nothing new in his application.  It  is  JAJM’s  opinion  that  the
applicant  flagrantly  ignored  the  admonishment  of  his   commander   and
committed an offense that seriously undermines  morale  and  unit  cohesion.
The  applicant  was  thus  afforded  all  rights  granted  by  statute   and
regulation.

The JAJM evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation of JAJM.  The DPPPWB evaluation  is
at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 29 August 2003, copies of the Air Force evaluations were forwarded  to
the applicant for review and comment 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of an injustice.  After a  thorough  review  of  the  evidence  of
record we find that even  though  the  applicant  does  not  allege  he  was
miscounseled, it appears that his decision to accepted a court-martial  over
an Article 15 resulted from lack of proper counseling.  In this  regard,  we
find it difficult to believe that,  had  the  applicant  received  full  and
complete counseling concerning the maximum sentence he could  receive  as  a
result of findings of guilty by a military court, he would have  elected  to
take an action which was so contrary to his own  best  interests.   The  Air
Force legal advisory indicates that had the applicant  accepted  nonjudicial
punishment he would have only been subject to a reduction of  one  grade  to
technical sergeant.  We note prior to the report of the infraction that  led
to his court-martial, the applicant had  accrued  a  record  of  exceptional
service.  We also note several laudatory  comments  and  recommendations  of
support for this appeal made by his superiors based  on  his  dedication  to
duty and job performance since his court-martial.   At  the  same  time,  we
realize the seriousness of  the  offense  committed  by  the  applicant  and
concur that punishment was warranted.  We strongly feel  that  as  a  senior
noncommissioned officer,  it  was  and  his  duty  to  set  an  example  for
subordinate personnel and that he must set a moral example both on  and  off
duty.  Therefore, we believe that his actions should not go  unpunished  and
agree that relief in this case, as set forth  below,  should  begin  on  the
date of our final decision.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.  To show that, effective 3 November 2003, so much of  the  sentence
of the Special Court-Martial relating to reduction in grade in excess  of  a
reduction to the grade of technical  sergeant,  announced  and  affirmed  by
Order No.  --,  Department  of  the  Air  Force,  Headquarters  12th  Flying
Training Wing (AETC), Randolph  Air  Force  Base,  Texas  78150-4549,  dated
19 December 2002, be, and hereby is, set aside.

      b.  His date of rank as a technical sergeant (E-6) is 3 November 2003.

________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 1 October 2003 and 3 November 2003, under the provisions  of  AFI
36-2603:

      Mr. Frederick R. Beaman III, Panel Chair
      Mr. Michael K. Gallogly, Member
      Mr. Michael J. Maglio, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2003-02292:

      Exhibit A.  DD Form 149, dated 27 Jun 03, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, undated.
      Exhibit D.  Letter, AFPC/DPPPWB, dated 12 Aug 03.
      Exhibit E.  Letter, SAF/MRBR, dated 29 Aug 03.




                                             FREDERICK R. BEAMAN III
                                             Panel Chair


AFBCMR BC-2003-02292




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

     The pertinent military records of the Department of the Air Force
relating to XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, be corrected to show
that:

      a.  To show that, effective 3 November 2003, so much of the sentence
of the Special Court-Martial relating to reduction in grade in excess of a
reduction to the grade of technical sergeant, announced and affirmed by
Order No. --, Department of the Air Force, Headquarters 12th Flying
Training Wing (AETC), Randolph Air Force Base, Texas 78150-4549, dated
19 December 2002, be, and hereby is, set aside.

      b. His date of rank as a technical sergeant (E-6) is 3 November 2003.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency