RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00927
            INDEX NUMBER:  126.00
      XXXXXXXXXXXXXXXXX      COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 20  Sep  00  be  set  aside  and  all
property, rights, and privileges of which he was deprived be restored,
which includes the following:

        a.  His grade of master sergeant (MSgt) be restored.

        b.  He receive all pay and allowances lost due to the  Article
15.

        c.  His retirement points be retroactively adjusted to  recoup
for lost tours of duty from 28 Sep 00 to the date of  removal  of  the
Article 15 from his record.

        d.  All negative documents resulting from the  Article  15  to
include evaluations, reprimands, etc., be removed from his record.

        e.  His involuntary transfer to  an  inactive  status  in  the
Reserves be reversed.

        f.  His retirement orders be rescinded.

        g.  He be reinstated as an Individual Mobilization Augmentee.

        h.  He be promoted to the grade of senior master sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force lacked jurisdiction to conduct proceedings under Article
15 against him.

The applicant provides a copy of  the  opinion  of  the  US  Court  of
Appeals decided 6 Dec  02  in  which  the  court  expresses  that  the
dismissal by the district court of the applicant’s claim for equitable
relief against the Air Force’s alleged excess of  jurisdiction  should
be reversed and remanded  back  to  the  district  court  for  further
proceedings.  The applicant also  provides  a  copy  of  the  judgment
ordering this finding.

The applicant provides a copy of an order from the US Court of Appeals
granting his requests for court costs in the amount of $342.88.

The applicant provides a copy of a Temporary Restraining Order  (TRO),
dated 20 Jun 00, restraining the Air Force from enforcing  the  orders
directing the applicant to report to New Mexico on    19  Jun  00  and
from taking the applicant into custody because of his alleged  absence
without leave from New Mexico.

The applicant provides a copy of Reserve Order  CA-010741  discharging
him from the Air Force Reserve effective 1 Jul 02.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a Reserve Individual Mobilization Augmentee,  began  an
active duty tour in the grade of master sergeant on 21 Mar 00.  On  26
Mar 00, the Air  Force  began  investigating  complaints  against  the
applicant for sexual harassment.  Upon learning of the  investigation,
the applicant departed his assigned duty station on 8 Jun 00,  leaving
a note saying that he was “voluntarily  terminating”  his  active-duty
tour.  On 18 Jun 00, he was released from active duty and  transferred
to the Air  National  Guard.   Because  the  Air  Force  regarded  the
applicant’s active duty tour as requiring him to serve  an  additional
ten days, it issued an order recalling the applicant  to  active  duty
under 10 U.S.C., Section 12301(d).  The applicant filed suit in the US
District Court for the District of Columbia, alleging that various Air
Force officers and civilian employees had  violated  his  due  process
rights, had engaged in  race  discrimination  and  reprisals  for  the
applicant having filed a complaint with the  Inspector  General.   The
applicant sought and obtained a TRO barring  enforcement  of  the  Air
Force’s recall order on the ground that 10 U.S.C.,  Section  12301(d),
did not authorize the involuntary recall  of  a  reservist  to  active
duty.  The Air Force then rescinded the recall order,  and  the  court
dissolved the TRO.

About one month later, the Air Force  issued  new  orders,  this  time
under 10 U.S.C., Section 802(d), Article 2(d), recalling the applicant
to  active  duty  so  that  he  could  be  subjected  to  disciplinary
punishment involving both the sexual hararassment allegations and AWOL
allegations.  The applicant again sought a TRO, arguing that  although
10 U.S.C., Section 802(d), authorized involuntary recall of members of
a reserve component, as an IMA he  was  not  a  member  of  a  reserve
component and therefore not subject to  recall.   The  district  court
denied the applicant’s TRO and he reported to active duty.

On 13 Sep 00, the applicant was offered nonjudicial  punishment  under
Article 15, UCMJ, for being absent without leave (AWOL)  in  violation
of Article  86,  UCMJ,  and  maltreatment  (sexual  harassment)  of  a
subordinate, in violation of Article 93, UCMJ.   On  14  Sep  00,  the
applicant waived his  right  to  demand  trial  by  court-martial  and
accepted  proceedings  under  Article  15.   He  submitted  a  written
presentation and made a personal appearance before his commander.   On
20 Sep 00, the applicant’s commander determined that the applicant was
AWOL  but  did  not  commit  maltreatment.   The   commander   imposed
punishment consisting  of  a  one-grade  reduction  to  the  grade  of
technical sergeant.   The  applicant  appealed  the  punishment.   The
appellate authority denied the applicant’s appeal.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends that the applicant’s requests  be  denied.   The
applicant’s jurisdictional claim to the district court was remanded to
the court for further proceedings to determine whether  the  applicant
was properly subject to recall to active duty in connection  with  the
Article 15 action.  This action is still pending.  The applicant  also
has not provided any evidence to support his position that the Article
15 action against him lacked legal sufficiency.

While the applicant was serving an active duty tour scheduled  to  end
on 18 Jun 00, he learned that he was  being  investigated  for  sexual
harassment of a subordinate.  He then left his duty  assignment  on  8
Jun 00 without authority and remained gone until recalled pursuant  to
Art 2(d), Uniform Code of Military Justice (UCMJ), in Sep 00  to  face
Article 15 action for absence without leave (AWOL), 8-18 Jun  00,  and
maltreatment.  A review of the applicant’s personnel records  confirms
that he was in an active duty status at the time of the commission  of
the alleged offenses.  It also confirms that he was a  member  of  the
Air Force Reserve component at the time of his recall to  active  duty
in Sep 00 and was subject to recall to active  duty  under  Art  2(d),
UCMJ.  This provision authorizes the  recall  to  active  duty  of  an
individual member of a reserve  component  to  face  court-martial  or
Article 15 action if two essential criteria are  met.   One,  was  the
applicant on active duty or in an inactive-duty training status at the
time of  the  commission  of  the  alleged  offenses.   Two,  did  the
applicant remain a member of a reserve component (reserve or  national
guard) until the time of his recall.  The applicant met both of  these
criteria.  It is  unlikely  that  the  district  court  will  reach  a
contrary result.

The applicant raises no factual claims of innocence.  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.  The commander determined that the applicant had  committed
the AWOL offense and absolved him of  the  maltreatment  charge.   The
appellate authority agreed and provided the  applicant  no  relief  on
appeal

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

ARPC/JA also recommends that the applicant’s requests be denied  based
on the rationale outlined in the AFLSA/JAJM evaluation.

The complete evaluation is at Exhibit D.

_______________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluations by restating  his
requests to the Board.  He states that due to the  ruling  by  the  US
Court of Appeals that he had a constitutional right to  challenge  the
jurisdiction of the Air Force; the Air Force’s actions  “cannot  stand
nor have the presumption of correctness or completeness.”

The applicant presents the statement of  facts  from  his  perspective
contending that he was an Individual Mobilization Augmentee and not  a
member of any unit of the  Air  Force  or  Air  Force  Reserves.   The
applicant states that the evaluation prepared by AFLSA/JAJM  does  not
address the substantive opinion of the US Court of  Appeals  rejecting
the district court’s finding of fact that the applicant  was  properly
recalled under 10 U.S.C., Section 802(d).  Based upon the ruling,  the
applicant was a civilian at the time the Article 15 was  presented  to
him and remained a civilian throughout  the  process.   The  applicant
references a case similarly ruled by the  Third  Circuit  in  Valn  v.
United States.  Under the Hirschberg doctrine,  military  jurisdiction
over  an  individual  for  offenses  committed  during  a  period   of
enlistment or obligated service lapses after the  discharge  for  that
period.  The applicant references his DD Form 214 as evidence that  he
was discharged.  The applicant further opines that AFLSA/JAJM does not
offer any legal arguments nor does it present any legal  authority  to
support ignoring the opinion of the Appeals Court.  He states that  he
has a clear constitutional right to  challenge  the  jurisdiction  and
authority of the Air Force to recall him involuntarily to active  duty
for UCMJ punishment.  Based on the ruling by the US Court of  Appeals,
the involuntary recall, ensuing non-judicial punishment and all  other
subsequent disciplinary actions against him were “legally invalid  and
must be reversed.”

The applicant again attaches copies of the documents provided with his
initial application.

The applicant’s complete response, with attachments, is at Exhibit F.

_________________________________________________________________

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;
however, we agree with the opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of an  error  or  injustice.   Therefore,  in  the  absence  of
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of   the   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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-
00927 in Executive Session on 10 March 2004, under the  provisions  of
AFI 36-2603:

      Ms. Brenda L. Romine, Panel Chair
      Ms. Ann-Cecile M. McDermott, Member
      Ms. Kathleen F. Graham, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 22 Apr 03.
    Exhibit D.  Memorandum, ARPC/JA, dated 30 Dec 03.
    Exhibit E.  Letter, SAF/MRBR, dated 8 Jan 04.
    Exhibit F.  Letter, Applicant, dated 26 Jan 04, w/atch.




                                   BRENDA L. ROMINE
                                   Panel Chair