RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03734

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His nonjudicial punishment under Article 15 of  the  Uniformed  Code  of
Military Justice (UCMJ) dated 5  April  2000  be  reduced  to  a  letter  of
reprimand.

2.  His referral Enlisted Performance Report (EPR) rendered for  the  period
14 May 1999 through 13 May 2000 be rewritten or voided from his records.

3. His records be corrected to reflect  that  he  was  not  administratively
demoted from the grade of staff sergeant (E-5), to airman  first  class  (E-
3), effective 8 August 2000.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The checks used for this Article 15 were over a year old (19 Mar 99  and  26
Mar 99).  His wife had written  four  checks,  which  were  dishonored.   He
tried to explain to his commander why the  two  checks  were  dishonored  in
March 1999 but had  thrown  the  proof  away  because  of  the  age  of  the
documents.  He apologized for the current checks.

The referral EPR only covered a short time - a month  or  two  and  did  not
cover the entire  year.   Most  of  the  statements  made  in  the  EPR  are
unsubstantiated by the Administrative Discharge  review  hearing.   The  EPR
does not reflect his work.

The rank of staff sergeant was wrongfully taken in August  2000.  The  minor
disciplinary infraction used for the demotion was mostly unsubstantiated  in
the Administrative Discharge review hearing

In support of his request applicant provided documents associated  with  his
Article  15  punishment  and  letters  of  reprimand;  excerpts   from   the
administrative discharge  review  hearing;  statements  from  wife  and  co-
workers, and copies of EPRs.

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

_________________________________________________________________


STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air  Force  on  7
October 1983.  He continuously served on active duty and  was  progressively
promoted to the grade of staff sergeant, effective and with a date  of  rank
of 1  September  1990.   He  served  as  a  fire  protection  craftsman  and
subsequently cross-trained as a health  services  management  journeyman  in
1995.  On 30 April 2002, he was permanently retired for  disability  in  the
grade of airman basic (E-1) with compensable  rating  of  40  percent  after
serving 19 years, 1 month and 9 days of total active duty military  service.
 A grade determination by the Secretary of the Air Force  Personnel  Council
on 27 March 2002 concluded that the applicant had satisfactorily  served  in
the grade of senior airman (E-4) and he  was  permanently  retired  in  that
grade on 29 March 2002.

On 30 March 2000, applicant was notified by his commander of her  intent  to
impose nonjudicial punishment under Article 15, UCMJ.  The specific  reasons
for this action were that on 19 and 26 March 1999, he did make and utter  to
Andrews Air Force Exchange certain drafts  in  the  amount  of  $300.00  and
$150.00 for the purpose of buying products obtaining cash or in  payment  of
a debt, and did thereafter dishonorably fail to maintain  sufficient  funds.
He was advised of his rights in this matter and  after  consulting  counsel,
waived his right to demand trial  by  court  martial,  accepted  Article  15
proceedings, and provided written presentations  to  the  commander.  On  10
April 2000, the commander found that he  did  commit  one  or  more  of  the
offenses alleged and imposed punishment on him consisting of  a  restriction
to the limits of Andrews Air Force Base for sixty (60) days.

On 26 April 2000, the applicant received a letter of reprimand concerning  a
domestic problem with his spouse.

On 18 May 2000, the applicant received a letter of reprimand  for  violation
of a direct order concerning duty performance.

On 19 June 2000, the applicant received a letter of  reprimand  for  failure
to maintain standards in base housing.

On 22 June 2000, applicant was notified by his commander of  her  intent  to
impose  an  administrative  demotion  based  on  failure  to   fulfill   NCO
responsibilities.  The  applicant’s  Area  Defense  Counsel   appealed   the
demotion action based on the psychiatric diagnosis.  In a  legal  review  of
the case file on   30 July 2000, the staff judge  advocate  found  the  case
legally sufficient.  On 9 August 2000, the applicant was  demoted  from  the
grade of staff sergeant to the grade of airman  first  class  effective  and
with the date of rank of 8 August 2000.

On 28 June 2000, the applicant received a  command  directed  mental  health
evaluation, which deemed him unsuitable for continued military service.   He
was  diagnosis  with  an  Adjustment  Disorder  with  Mixed  Disturbance  of
Emotions and Conduct and  a  Personality  Disorder  of  mixed  avoidant  and
dependent personality.

On 17 August 2000, applicant was notified by his commander of her intent  to
withdraw administrative discharge action.

On 28 November 2001, applicant was notified by his commander of  her  intent
to impose nonjudicial punishment  under  Article  15,  UCMJ.   The  specific
reasons for this action were on divers occasions between 1 August  2001  and
25 September 2001, he used the America government travel card  for  personal
purposes.  And being indebted to the Bank of America in the sum of  $1601.06
for payment on his government credit  card,  which  amount  became  due  and
payable on or about 1 September 2001,  did  from  1  September  2001  and  7
November 2001, dishonorably fail to pay said debt. He  was  advised  of  his
rights in this matter and after consulting  counsel,  waived  his  right  to
demand  trial  by  court  martial,  accepted  Article  15  proceedings,  and
provided written presentations to the commander.  On 7  December  2001,  the
commander found that he did commit one or more of the offenses  alleged  and
imposed punishment on him consisting of a reduction to the grade  of  airman
basic (E-1) suspended until 3 June  2000,  after  which  time  it  would  be
remitted without further action, unless sooner vacated, and  30  days  extra
duty.

In February 2002, Medical Evaluation Board  was  initiated  for  Generalized
Anxiety Disorder, severe (onset 1988), Depression  not  otherwise  specified
(onset June 1999), Dependent Personality  Disorder,  moderate.   The  mental
health  narrative  summary  listed  as  “external   precipitating   stress”,
occupational difficulties,  financial  difficulties  and  family  stressors.
The applicant had also recently undergone surgery for  hallux  valgus.   The
Informal Physical Evaluation Board (IPEB)  found  the  applicant  unfit  for
continued military service and recommended permanent  disability  retirement
at a combined rating  of  40  percent.  The  applicant  concurred  with  the
findings and recommendations of the IPEB.

EPR profile since 1996 reflects the following:

          PERIOD ENDING      OVERALL EVALUATION

           13 May 96                     4
           13 May 97                     4
           13 May 98                     4
           13 May 99                     4
        *  13 May 00                     1 Referral
           13 May 01                     3 Referral
           13 May 02                     2 Referral

     *  Contested report.

_________________________________________________________________


AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.   They  state
the applicant should not prevail here absent clear error or injustice.   The
applicant claimed in his written presentation in response  to  the  proposed
Article  15  action  that  he  unknowingly  wrote  the  bad  checks  due  to
unauthorized withdrawals from his checking account  by  an  “advance  check-
cashing business” causing him to have insufficient funds.  He also  contends
that his financial record, up to  that  point,  had  been  clean--though  he
admits that his family was having  financial  difficulties.   The  applicant
also contends that he immediately paid for  the  dishonored  checks.   In  a
statement attached to his application for  correction  of  military  record,
the applicant states the checks used for the Article 15  were  over  a  year
old at the time of the Article 15 action, that he had attempted  to  explain
to his commander why the two checks  were  dishonored  but  had  thrown  the
proof away because of the age of the documents.  He also apologized for  his
wife having written four additional checks, which were dishonored  in  1999.
Those checks were not included in the Article 15 action.

The applicant’s request to have the Article 15 action reduced  to  a  letter
of reprimand is based on the premise that he did  not  knowingly  write  the
two bad checks. Even accepting that premise as fact, the  applicant  is  not
relieved of his responsibility for failing to  maintain  funds.   Intent  to
deceive or defraud is not required in commission of the  offense  for  which
he was punished.

The applicant should not prevail here absent clear error or  injustice.   By
electing to resolve the allegation in the nonjudicial forum,  the  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  the  commander  determined  the
applicant had committed an offense.  The commander  had  to  weigh  all  the
evidence before her to make a decision.  The applicant did  not  appeal  the
commander’s decision.

Moreover, a  discharge  board  consisting  of  four  officers  reviewed  the
Article  15  and  evidence  of  the  applicant’s  guilt.   The  board   also
determined that the applicant dishonorably  failed  to  maintain  sufficient
funds in his account to cover the checks.

The applicant’s complaint that the checks were written and  dishonored  over
a year prior to the Article  15  is  of  no  consequence.   The  statute  of
limitations for nonjudicial punishment is two  years--nonjudical  punishment
cannot be  imposed  for  offenses  committed  more  than  two  years  before
imposition of punishment.

When evidence of an error or injustice is missing,  it  is  clear  that  the
BCMR process is not intended to simply second-guess the  appropriateness  of
the judgments of 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 lawfully 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 set aside should be only granted when the evidence demonstrates  an  error
or a clear injustice.  The applicant has provided no  evidence  of  a  clear
error or  injustice  related  to  the  nonjudical  punishment  action.   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.

AFLSA/JAJM complete evaluation is at Exhibit C.

AFPC/DPPPE  recommends  denial  and  states  the  allegations  made  by  the
applicant are not justified or proven.  There were 297 days of  supervision,
more than enough time for the rater to make a fair and  accurate  assessment
of  the  applicant.   The  Discharge  Board   findings   substantiated   the
statements in the report, which make the report accurate.

Since the applicant has not proven  the  actual  assessment  is  inaccurate,
they strongly recommend the AFBCMR deny the applicant’s request  to  rewrite
or  void  the  report.   However,  the  report  should  be  administratively
corrected.  Since the commander did not properly refer the report  based  on
her ratings, we recommend her initials be removed in  Section  III  block  7
and Section IV (Indorser’s Recommendation) and the AF  Form  77  be  removed
from the record.  The remainder of the report is an accurate assessment  and
there are no grounds to remove it in its entirety.

AFPC/DPPPE complete evaluation is at Exhibit D.

AFPC/DPPPWB deferred to the recommendation of AFPC/DPPPE.   The  first  time
the contested report would have normally been considered  in  the  promotion
process was cycle 01E6 to TSgt.  However, since the  applicant  was  reduced
to the grade of AlC per Special Order AA-1108, 6 September 2000 with a  date
of rank (DOR) and effective date of 8 August  2000,  the  report  was  never
used in the promotion process.  As a matter of  information,  the  applicant
received an Article 15 for wrongful use of  a  government  credit  card  and
indebtedness.  His punishment consisted of  a  reduction  to  the  grade  of
airman basic with a new DOR of 4 December 2001 and 30 days extra  duty.   He
was permanently disability retired in that grade effective 30 April 2002.

AFPC/DPPPWB complete evaluation is at Exhibit E.

BCMR Medical Consultant  indicates  the  mental  conditions  of  Generalized
Anxiety Disorder, Adjustment Disorder and Depressive Disorder not  otherwise
specified   were   triggered   by   external   stressors   of   occupational
difficulties, financial problems, and family problems.  These conditions  do
not produce the ability to know right from wrong or conformance of  behavior
to the right.  The applicant was also diagnosed with  Dependent  Personality
Disorder, a condition that likewise does not  impair  the  ability  to  know
right from wrong or conform  to  the  right.   The  condition  represents  a
significant risk factor for  poor  coping  skills  and  the  development  of
anxiety  and  depression  under  periods   of   stress.    The   applicant’s
Personality Disorder and other diagnoses combined with the stresses  he  was
experiencing at the time  shed  insight  to  the  problems  he  experienced;
however,  they  do  not  relieve  him  of  responsibility  for   appropriate
consequences of his decisions and behavior.  The reviewer is of the  opinion
that the disability retirement and disability rating was appropriate.

BCMR Medical Consultant complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were  forwarded  to  the  applicant  for
review and response within 30 days.  As of this date, no response  has  been
received by this office.

_________________________________________________________________

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 an error or injustice.  After a thorough review of  the
       evidence of record  and  the  applicant’s  submission,  we  are  not
       persuaded that the Article 15 should be set aside and his  grade  of
       staff  sergeant  restored  to   its   original   DOR.    Applicant’s
       contentions  are  duly  noted;  however,  we  do  not   find   these
       uncorroborated  assertions,  in  and  by  themselves,   sufficiently
       persuasive to override the rationale provided by the Air Force.  The
       evidence reflects that the commander  initiated  Article  15  action
       based on information she determined to  be  reliable  and  that  the
       nonjudicial action  was  properly  accomplished  and  applicant  was
       afforded all rights granted by statute and regulation.  We have  not
       been convinced, by his submission, that  his  commander  abused  her
       discretionary authority when she imposed the nonjudicial punishment,
       and since we find no abuse of that authority, we find no  reason  to
       overturn the commander’s decision.


    4. In regards to  his  EPR  being  rewritten  or  voided,  we  are  not
       persuaded that the contested report is an  inaccurate  depiction  of
       the applicant's  performance  and  demonstrated  potential  for  the
       period in question.  There were 297  days  of  supervision  for  the
       rater to make a fair and accurate  assessment  of  his  performance.
       Other than his own assertions, we have seen no evidence  that  would
       lead us to believe the report was technically flawed.  Therefore, in
       the absence of persuasive evidence  to  the  contrary,  we  find  no
       compelling basis to recommend granting the  relief  sought  in  this
       application.

    5. Notwithstanding the above, we agree with DPPPE’s recommendation that
       the report in  question  should  be  administratively  corrected  by
       removing the  commander’s  downgrading  of  the  report,  since  her
       comments were not referred  to  the  applicant.  Therefore,  in  the
       absence of persuasive evidence to the  contrary,  we  also  find  no
       compelling basis to recommend rewriting or  revoking  the  contested
       report.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that Enlisted Performance  Report  (EPR),
AF Form 910, rendered for the period  14 May 1999 through  13  May  2000  is
amended as follows:

      a.  Section III, Performance Factor No. 7: The initials in  Block  One
be deleted.

       b.   Section  IV:  The  initials  in  Block  1  of   the   Indorser’s
Recommendation be deleted.

      c.  The Supplemental Evaluation Sheet, AF Form 77, dated       6  June
2000 be, and hereby is declared void and removed from his records.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-03734
in Executive Session on 27 July 2004, under the provisions of AFI 36-2603:

                 Ms. Cathlynn B. Sparks, Panel Chair
                 Ms. Barbara R. Murray, Member
                 Ms. Renee M. Collier, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 3 Feb 04.
    Exhibit D.  Letter, AFPC/DPPPE, dated 13 Feb 04.
      Exhibit E.  Letter, AFPC/DPPPWB, dated 19 Feb 04.
      Exhibit F.  Letter, BCMR Medical Consultant, 3 Mar 04.
    Exhibit G.  Letter, SAF/MRBR, dated 14 May 04.





                                   CATHLYNN B. SPARKS
                                   Panel Chair





AFBCMR BC-2003-03734




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 APPLICANT,  be  corrected  to  show  that  Enlisted  Performance
Report (EPR), AF Form 910, rendered for the period  14 May 1999  through  13
May 2000 be amended:

                  a.  Section III, Performance Factor No.  7:  The  initials
in Block One be, and hereby are deleted.

                   b.   Section  IV:  The  initials  in  Block  One  of  the
Indorser’s Recommendation be, and hereby are deleted.

            c.  The Supplemental Evaluation Sheet, AF Form 77, dated 6 June
2000 be, and hereby is declared void and removed from his records.








                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency