RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00927
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15 be set aside and his original date  of  rank  (DOR)  to
staff sergeant (SSgt) be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He  is  innocent  of  the  charges  of  conspiracy  and  the  evidence
(documentation of weigh-ins) proves his innocence.

In support of the appeal, applicant submits a  personal  statement,  a
copy of the Article 15 package,

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  5  June  1996  in  the
grade of airman first class for a period of  four  years.   He  served
three years, one month and four days of total active duty.  On 9  July
1999, he reenlisted for a period of six years.  Prior  to  the  events
under review, he was progressively promoted  to  the  grade  of  staff
sergeant, effective and with a date of rank of 1 April 2001.

On 5 May 2003, the applicant’s commander  notified  him  that  he  was
considering whether he should be punished under Article 15, UCMJ,  for
a violation of  Articles  81  and  107,  UCMJ,  Conspiracy  and  False
Official Statements.  Applicant was alleged to have conspired to  have
the weight loss monitor falsify his December 2002 weigh-in, indicating
that in just over one month, he had lost over twenty pounds of weight,
and then lying about the conspiracy.  After consulting  with  military
defense counsel, he waived his right to demand trial by  court-martial
and accepted nonjudicial punishment.  He requested a personal  hearing
and submitted a written presentation to  the  commander.   On  16  May
2003, the  commander  found  that  the  applicant  had  committed  the
offenses alleged and imposed punishment consisting of a  reduction  in
rank to senior airman, with a new date of  rank  of  16  May  2003,  a
forfeiture of $250 pay per month for two months, suspended through  15
November 2003, fifteen days of extra duty, and  a  reprimand.   On  15
August 2003, the same  commander  mitigated  the  reduction  in  grade
punishment to a punishment of a forfeiture of $200 pay per  month  for
two months.  As a result, his date of rank as a staff sergeant  is  15
August 2003.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states  that  on  11  April  2003,  the  applicant’s  first
sergeant received an  e-mail  from  a  squadron  member  stating  that
someone should review the squadron’s weight management program entries
over the past year.  Based on the first sergeant’s review, two records
appeared questionable.   One  of  the  records  was  the  applicant’s.
According to his file, on 31 October 2002, the applicant  weighed  224
pounds.  At a 3 December 2002 mandatory weigh-in, an  acquaintance  of
the applicant recorded the applicant’s weight as 198 pounds.   If  the
second weigh-in was valid, the applicant lost 26 pounds  in  32  days.
The applicant was interviewed under rights advisement.  The  applicant
acknowledged his  rights,  declined  counsel,  and  agreed  to  answer
questions.  During questioning, the applicant  denied  any  breech  of
integrity.  He also made a written statement indicating the weight was
correctly recorded.

The applicant’s acquaintance also weighed another military member on 3
December 2002.  According to that member’s record, she lost 22  pounds
between 16 October 2002 and 3 December 2002.  On that same date,  this
service member was weighed at a medical appointment.  The  results  of
that weigh-in indicated she  weighed  26  pounds  more  than  she  had
weighed that morning.

On 21 May 2003, applicant appealed the nonjudicial punishment.  At the
time of the appeal,  contradictory  statements  from  the  applicant’s
coworkers were submitted.  Some coworkers said  they  did  not  notice
weight loss.  Others stated they did notice drastic weight loss.

The senior commander considered all the evidence and  determined  that
the punishment was appropriate and denied the appeal.

On 24 June 2003, the applicant requested that the Article  15  be  set
aside pursuant to Air Force  Instruction  51-202.   At  the  time,  he
presented evidence that he weighed 231 pounds on 13 May 2003  and  205
pounds on 10 June 2003, a loss of 26 pounds.  The  evidence  consisted
of documented weekly weigh-ins.

When a commander decides that a member who has been  punished,  or  is
being punished, has suffered a  “clear  justice,”  the  commander  can
cancel the punishment in whole or in part  and  restore  the  member’s
rights,  privileges,  or  property   accordingly.    Clear   injustice
generally refers to cases in which  information  later  comes  to  the
commander’s attention that casts substantial  doubt  on  the  member’s
guilt or establishes persuasive extenuation for the commission of  the
offense.  Set aside action is not normally considered a rehabilitation
tool.  The setting aside of a  punishment  should  not  be  a  routine
action  for  a  member  who  merely  avoids  future  misconduct.   The
commander exercises this discretionary authority only in  the  unusual
case where the guilt of the member is subsequently placed  clearly  in
question, or in those rare cases where  circumstances  establish  that
the best interests of the Air Force would be served  by  clearing  the
member’s record.  Set aside action must be taken within  a  reasonable
time (normally  four  months)  after  imposition  of  the  nonjudicial
punishment.   The  commander  determined  that  there  was  no   clear
injustice and no unusual circumstances warranting approval of the  set
aside requests.

However, on 15 August 2003, the applicant’s  commander  mitigated  the
reduction in grade to a forfeiture of $200 per month for  two  months.
The supplementary action restored noncommissioned officer  status  and
the accompanying pay to the applicant.

The following is a review of the information  made  available  to  the
board indicating the following weight fluctuations if  all  documented
weights are true:

           23 October 2002         230 pounds
           31 October 2002         224 pounds
            3 December 2002        198 pounds
           11 April 2003           233 pounds
           13 May 2003             231 pounds
           20 May 2003             224 pounds
           27 May 2003             216 pounds
           10 June 2003            205 pounds

JAJM opined there  is  no  clear  injustice  or  unusual  circumstance
warranting overturning the commander’s decision  that  the  3 December
2002 recorded weight was inaccurate.  The commander’s belief that such
a drastic weight loss by the applicant  would  be  noticed  by  anyone
working with the applicant on a regular basis is reasonable under  the
circumstances.

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 only be granted when the evidence  demonstrates  an
error or an injustice.  JAJM believes 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.
Therefore, they recommend no relief be granted.

A complete copy of the evaluation is attached at Exhibit C.

AFPC/DPPPWB states they defer to  the  recommendation  of  AFLSA/JAJM.
However, if  the  Board  decides  to  set  aside  the  Article  15  as
requested, his original DOR for SSgt was 1 April 2001.  Based on  this
DOR, he would be eligible for supplemental promotion consideration  to
technical sergeant (TSgt) beginning with cycle 03E6, once tested.

A complete copy of their evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 July 2004, 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 probable error or injustice warranting removal of the
Article 15 from his records.  After reviewing the evidence of  record,
the Board finds no  evidence  of  error  related  to  the  nonjudicial
punishment  proceedings.   It  appears  that   applicant’s   commander
properly reviewed the circumstances  surrounding  applicant’s  alleged
offenses and found that he had  committed  the  offenses  and  imposed
punishment consisting of a reduction in rank, forfeiture of  $250  pay
per month for two months, fifteen days of extra duty and a  reprimand.
Two  months  later,  15  August  2003,  the  commander  mitigated  the
reduction in grade punishment to a forfeiture of $200  pay  per  month
for two months.  Applicant’s  date  of  rank  to  staff  sergeant  was
established as 15 August 2003, the date the  commander  mitigated  the
punishment.  Based on the facts,  we  find  no  basis  upon  which  to
recommend favorable action on applicant’s request  to  set  aside  the
contested Article 15.

4.    Notwithstanding the above determination,  the  majority  of  the
Board notes that on 24 June 2003, applicant presented documented weigh-
ins to his commander reflecting that he had lost 26 pounds in 28 days.
 On 15 August 2003,  the  commander,  after  reviewing  the  evidence,
mitigated the reduction in grade  punishment  to  a  punishment  of  a
forfeiture of $200 pay per month for two months.  The majority of  the
Board believes that, in view of applicant’s drastic  weight  loss  and
since the commander restored him to the grade of staff  sergeant,  his
date of rank should also be restored.  In view of the above  findings,
the majority of the Board believes  that  the  benefit  of  any  doubt
should be resolved in  favor  of  the  applicant  and  recommend  that
applicant’s date of rank to the grade of staff sergeant be restored to
1 April 2001.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of  the  Air  Force
relating to APPLICANT, be corrected to show that his date of rank to
staff sergeant is 1 April 2001.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 28 October 2004, under the provisions of AFI  36-
2603:

            Mr. Richard A. Peterson, Panel Chair
            Ms. Martha A. Maust, Member
            Mr. Michael J. Maglio, Member

By a majority vote, the Board recommended partially  granting  of  the
application pertaining to AFBCMR  docket  number  BC-2004-00927.   Mr.
Peterson voted to deny the records but does not  desire  to  submit  a
Minority Report.  The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 14 Mar 04, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 10 Jun 04.
      Exhibit D.  Letter, AFPC/DPPPWB, dated 28 Jun 04.
      Exhibit E.  Letter, SAF/MRBR, dated 9 Jul 04.




                                   RICHARD A. PETERSON
                                   Panel Chair





AFBCMR BC-2004-00927





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, be corrected to show that his date of rank to
staff sergeant is 1 April 2001.





                             JOE G. LINEBERGER
                             Director
                             Air Force Review Boards Agency