RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBERS:  BC-2003-00321
                                       INDEX CODE:  126.04
      XXXXXXXXXXXXXXXXXXX               COUNSEL: NONE

      XXXXXXXXXXXXX                     HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15, Uniformed Code of Military Justice  (UCMJ),  action  imposed
on 3 February 2000, be set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 he received was unjust, unwarranted, and unduly  harsh.   His
actions did not meet the standard of negligence  as  defined  by  the  UCMJ.
The specific supply item in question was disposed of properly.  The  Article
15  erroneously  identifies  the  reason  for  his  actions.   The   issuing
authority did not consult  with  the  unit  commander.   He  has  reason  to
believe  the  issuing  authority  improperly  reviewed  a   “quasi-criminal”
investigation report, which did not allow him to form an  objective  opinion
as to the necessity of the Article 15.

In support of his application, he provides a personal statement, and  copies
of the Article 15 in question, his response to the Article  15,  his  appeal
of  the  nonjudicial  punishment,  the  appeal  denial,  several   character
references, an excerpt of UCMJ Article 92,  the  Informational  Report,  the
Report of Investigation, an excerpt  of  an  inventory  print-out,  and  Air
Force Manual 23-110, Volume 2, Part 13,  Basic.   The  applicant’s  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 19 July 1978, the applicant enlisted in the Regular Air Force at the  age
of 18 in the grade of airman basic (E-1) for a period  of  four  years.   He
was progressively promoted to the rank of master  sergeant  (E-7)  effective
and with a date of rank  of  1 October  1997.   The  applicant  received  22
performance ratings for the period of 17 July 1978 through 4  January  1999.
He received overall ratings of nine with  an  exception  of  one  rating  of
eight under the early performance measure (scale 0-9) and  ratings  of  five
with an exception of one rating of four under the  new  performance  measure
(scale 1-5).

On 20 January 2000, his commander notified the applicant of  his  intent  to
recommend the applicant be  punished  under  Article  15,  UCMJ,  for  being
derelict in his performance of duties  in  that  he  negligently  failed  to
ensure that a member  under  his  supervision  followed  established  supply
procedures.  On 2 February 2000,  after  consulting  with  military  defense
counsel, the applicant waived his right to  demand  trial  by  court-martial
and accepted nonjudicial proceedings.  He submitted a  written  presentation
to and made a personal  appearance  before  his  commander.   On  3 February
2000, having considered the evidence and the  applicant’s  response  to  the
Article 15, the imposing authority determined the applicant did  commit  the
offense charged.  Punishment consisted of a reprimand and forfeiture of  $50
pay.  His commander chose not to file the record of  nonjudicial  punishment
in  the  applicant’s  Unfavorable  Information  File  or  his  Senior   Non-
Commissioned  Officer  Selection  Record.   The   applicant   appealed   the
punishment and requested the action be set aside.   The  applicant’s  appeal
was denied.  Legal reviews completed on 14 and 17 February  2000  found  the
record legally sufficient.

The applicant was honorably relieved from active duty  effective  31  August
2000 was retired effective  1 September  2000  after  serving  22  years,  1
month, and 12 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial  of  relief  because,  in  their  opinion,  the
applicant’s contentions are without merit and constitute neither  error  nor
injustice.  JAJM states that his commander had ample  evidence  to  conclude
that the applicant had engaged in  the  alleged  misconduct  by  negligently
failing to ensure  a  member  under  his  supervision  followed  established
supply procedures.  The  applicant  himself  admitted  he  had  no  sign-out
procedure to monitor the comings and goings of  government  assets.   It  is
JAJM’s opinion that it was clear the applicant was negligent in  his  duties
as they related to the care and custody of  materials  within  his  section,
and his duty as a supervisor.  JAJM states there is no indication  that  the
commander’s findings are either arbitrary or capricious.  In the absence  of
such a showing these findings should not be disturbed.

JAJM states that when evidence of an error or injustice is  missing,  it  is
clear that the AFBCMR process is not intended  to  simply  second-guess  the
appropriateness of the judgments of the field commanders.  In  the  case  of
nonjudicial punishment, Congress (and the  Secretary  via  AFI  51-202)  has
designated only two officials with the responsibility  for  determining  the
appropriateness of an otherwise lawful punishment:  the  commander  and  the
appeal authority.  So long as they are acting within the scope of  authority
granted them by law, their judgment 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.  A member accepting non-judicial punishment proceedings  may  have  a
hearing with the imposing commander.  The member may  have  a  spokesman  at
the hearing, may request that witnesses appear and testify, and may  present
evidence.  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  nonjudicial  punishment
action, set aside  the  punishment,  decrease  its  severity,  or  deny  the
appeal.

It is JAJM’s opinion  that  the  evidence  presented  by  the  applicant  is
insufficient  to  warrant  setting  aside  the  Article  15   action.    The
AFLSA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims the advisory opinion is  based  on  misunderstandings
and misrepresentations made in the investigator’s report.  From  the  time
of his assignment to the Security Forces Squadron in September 1995  until
August 2000, it seems he could  do  no  wrong.   He  was  the  person  the
commander called when problems within the unit arose and  his  performance
reports reflect this.  When his new officer  in  charge  was  assigned  in
August 2000, it seems he could do no right.  The applicant’s  rebuttal  is
at Exhibit E.

_________________________________________________________________

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  all  the   evidence
provided,  the  Board  majority  is  not  persuaded  that  the   nonjudicial
punishment, imposed on 3 February 2000, was improper.  The majority  of  the
Board finds  no  evidence  of  error  in  this  case  and  after  thoroughly
reviewing the documentation provided in support of  his  appeal,  the  Board
majority does not believe he has suffered an injustice.  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.   The  Board
majority does  not  believe  there  is  such  showing  here.   The  evidence
indicates that during the processing of this Article 15, the  applicant  was
offered every right to which he was entitled.  He  consulted  with  counsel,
and submitted written and oral matters for review by the imposing  commander
and was given the  opportunity  to  present  his  arguments.   The  imposing
commander determined that the applicant did commit the offense  and  imposed
punishment.  The applicant appealed the  punishment  and  after  considering
the matters raised by the applicant in his appeal, the commander denied  the
request.  There  is  nothing  in  the  evidence  provided,  other  than  the
applicant’s assertions, which would that would lead the  Board  majority  to
believe that the actions by the imposing  commander  were  inappropriate  or
that he did not have access to all of the information necessary on which  to
base his decision.  The applicant 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  this  Article  15  punishment,  or  that  the  punishment
exceeded the maximum authorized by the UCMJ.  Therefore, the Board  majority
agrees with the assessment by AFLSA/JAJM  regarding  the  issues  raised  in
this application and finds no evidence of error or injustice.   Accordingly,
based on the available evidence of record, the majority of the  Board  finds
no basis upon which to favorably consider his request that  the  Article  15
be removed from his records.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the Board finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of  the  Board  considered  this  application,  AFBCMR
Docket Number BC-2003-00321 in Executive Session  on  13 April  2004,  under
the provisions of AFI 36-2603:

            Mr. Michael K. Gallogly, Panel Chair
            Ms. Kathleen F. Graham, Member
            Mr. James W. Russell III, Member

By a majority vote, the Board recommended denial of  the  application.   Mr.
Gallogly voted to correct the record  as  requested  but  did  not  wish  to
submit  a  minority  report.   The  following   documentary   evidence   was
considered:

     Exhibit A.  DD Form 149, dated 25 Jan 03 with attachments.
     Exhibit B.  Applicant’s Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 3 Apr 03.
     Exhibit D.  Letter, SAF/MRBR, dated 18 Apr 03.
     Exhibit E.  Applicant’s Rebuttal, dtd 15 Feb 03, w/atchs.




                                  MICHAEL K. GALLOGLY
                                                   Panel Chair


AFBCMR BC-2003-00321


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                        FOR CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXXXXXXXXXXXXXX

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that the applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.



                                                       JOE G. LINEBERGER
                                                       Director
                                                       Air Force Review
                 Boards Agency