RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBERS:  BC-2004-01407
                                       INDEX CODE:  126.04
      XXXXXXXXXXXXXXXXX                      COUNSEL: MR. BRUCE D. LENNARD

      XXXXXXXXXXXX                           HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15, Uniformed Code of Military Justice  (UCMJ),  action  imposed
on 18 December 2003, be invalidated and removed from  his  record  as  being
illegally imposed and incorrect; he be restored to  his  previous  grade  of
master sergeant (E-7); and he receive all appropriate back pay  owing  as  a
result of his  reduction  in  grade.   In  the  event  the  Board  does  not
invalidate the nonjudicial punishment action, as  requested,  he  asks  that
the Board correct his record to restore him to the grade of master  sergeant
based  on  equity  and  because  a  reduction  in  grade  as  he  approached
retirement is a punishment far more  severe  than  is  appropriate  in  this
case.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The specification on his nonjudicial punishment action is  contrary  to  law
and legally insufficient because  it  fails  in  all  material  respects  to
specify the  particular  duty  or  duties,  which  it  is  alleged  that  he
negligently failed to  perform,  and  the  particular  manner  in  which  he
negligently failed to perform the unspecified duty or duties.  As such,  the
specification may not form the basis  for  the  imposition  for  nonjudicial
punishment and according to Air Force Instruction 51-202,  it  must  be  set
aside.

In  support  of  his  application,  he  provides  a  personal  statement;  a
statement  from  his  counsel;  and  copies  of  his  Article  15  and   two
performance   reports.     The   applicant’s   complete   submission,   with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 3 February 1983, the applicant enlisted in the Regular Air Force  at  the
age of 20 in the grade of airman first class (E-3)  for  a  period  of  four
years.  He was progressively promoted to the rank of master sergeant with  a
date of rank (DOR) of 1 April 2002.

According to available records, the applicant was assigned as  an  equipment
custodian, ADPE custodian, and section supervisor in the Theater  Deployable
Communications (TDC) section at Davis-Monthan Air Force  Base,  Arizona,  in
the Summer of 2000.  In the Fall  of  2001,  he  was  deployed  to  the  TDC
section in Oman.  While deployed he received a Letter  of  Reprimand  (LOR),
for mishandling government property. In addition, he received  a  Letter  of
Counseling (LOC), for insubordination  to  the  squadron  commander.   After
returning early from his deployment  in  the  Spring  of  2002,  because  of
family issues, the applicant was given an  LOR  for  failure  to  adequately
provide for his family during his deployment.  Subsequently,  his  commander
held back his promotion for three  months.   In  June  2003,  the  applicant
completed an inventory of the TDC equipment.  In August  2003,  he  received
an LOR for failure to maintain control of the TDC section APDE  account  and
for making statements to his supervisor about the  sections  readiness  that
were false.

On 6 September  2003,  after  substantial  fluctuations  in  the  Status  of
Resources and Training Systems (SORTS) Report,  the  commander  directed  an
inventory of the TDC equipment section, while the applicant  was  on  leave.
The inventory revealed 95 items missing,  while  the  current  SORTS  report
showed all  95  of  the  items  on-hand.   In  addition,  the  investigation
revealed more than 200 items that  were  listed  as  not-on-hand  that  were
found to be on hand during the inventory.  After returning from  his  leave,
the applicant assisted in locating some of the missing items,  reducing  the
list down to 20 missing items valued at $19,271.

A Commander-Directed Investigation (CDI) was  conducted  8-23 October  2003,
to determine the facts and circumstances surrounding the  reporting  of  the
Theater Deployable Communications (TDC) equipment status.  It was  indicated
in the CDI findings that the applicant either willingly or  through  neglect
caused the loss of military property of the United States.  The  commander’s
allegation that  the  applicant  made  false  official  statements  on  data
gathered  for  consolidation  into   the   squadron’s   SORTS   report   was
unsubstantiated.  The CDI investigator stated  that  he  did  not  find  any
malicious  intent  or  intent  to  defraud  the  government;  however,   the
applicant’s kind of behavior should not  go  unpunished.   The  investigator
recommended that the applicant should receive nonjudicial punishment.

On 9 December 2003, his commander notified the applicant of  his  intent  to
impose nonjudicial punishment for being derelict in the performance  of  his
duties as  a  Deployed  Voice  Communications  Non-Commissioned  Officer  In
Charge (NCOIC), as it was his duty to do.   After  consulting  counsel,  the
applicant waived his rights to demand a trial by court-martial and  accepted
non-judicial punishment, submitted a written presentation, and requested  to
make  an  oral  presentation.   The  commander  determined   the   applicant
committed one or more of the offenses alleged.   On  18 December  2003,  the
applicant received punishment of reduction in grade  to  technical  sergeant
(E-6) with a new date of rank of 18 December 2003 and a  reprimand.   On  24
March 2004, the applicant submitted a letter of appeal through his  civilian
attorney.  On 9 April 2004, a superior commander denied his appeal.

According to the military personnel database, the  applicant  was  honorably
relieved from active duty effective 30 June 2004, and was retired  effective
1 July 2004 after serving 21 years, 4 months, and 28 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  JAJM  states  that
AFI 51-202, paragraph  3.8  requires  commanders,  when  giving  nonjudicial
punishment, to properly allege each offense to  state  a  violation  of  the
UCMJ consistent with the available facts and evidence.  The commanders  must
also make available to the member all statements  and  evidence  upon  which
the commander intends to rely in  making  his  or  her  decision.   In  this
particular case, no particular duty was set forth in the specification  and,
the spectrum of possible duties of a “Deployed Voice  Communications  NCOIC”
may be  broad.   Likewise,  the  manner  in  which  the  alleged  violations
occurred lends further ambiguity  to  the  alleged  offense.   Finally,  the
lengthy  period  of  alleged  violations  appears  inconsistent   with   the
applicant’s performance reports prior to  July  2003,  which  shows  he  met
expectations and was ready for another promotion.   Thus  taken  alone,  the
specification in the Air Force Form 3070, Record of  Nonjudicial  Punishment
Proceedings, would be insufficient under the UCMJ to provide notice  to  the
applicant of the nature of the charged offense.  However, a lesser  standard
applies to  nonjudicial  punishment.   AFI  51-202,  paragraph  3.8,  allows
nonjudicial  punishment  where  the  specification  fails  to  include   all
elements of the offense.  It requires only that  the  member  be  reasonable
informed of the nature of the alleged misconduct.  It is JAJM  opinion  that
the applicant was reasonably  informed  of  the  nature  of  his  misconduct
because the Commander’s Directed Investigation  (CDI)  Report,  provided  to
him, contained the particularity missing on the AF Form  3070.   The  report
describes the inventory problems with specificity in  terms  of  numbers  of
items missing and items on hand listed as missing.  The  relevant  inventory
lists were also provided.  By providing these materials  to  the  applicant,
the commander satisfied his obligation  to  reasonably  inform  him  of  the
nature of his alleged misconduct.

JAJM states that a set-aside of an Article 15 should only  be  granted  when
the evidence presented in the application demonstrates a  probable  material
error or injustice.  It is  JAJM  opinion  that  in  this  case,  there  was
neither.   JAJM  states  that  while  the  wording   of   the   Article   15
specification was inadequate and should not be countenanced, the  deficiency
cause neither a material  error  or  injustice  because  the  applicant  was
nevertheless informed of the nature of the  charged  offense,  the  evidence
supporting the offense, and of the commander’s intent to impose  nonjudicial
punishment, thus satisfying the requirements of AFI 51-202.

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB  defers  to  the  recommendation  of  AFLSA/JAJM  regarding  the
removal of the applicant’s Article 15.  DPPPWB  states  that  if  the  Board
decides to remove the Article 15 as requested, the applicant’s original  DOR
for master sergeant was 1 April 2002.  Although his original DOR  makes  him
eligible for  promotion  consideration  for  cycle  04E8  to  senior  master
sergeant, his placement on the control roster on 30 September  2003  renders
him ineligible in accordance to AFI 36-2502, Table 1.1,  Rule  5.   Even  if
the Board removes both the Article 15  and  control  roster,  the  applicant
would not be able to be considered supplementally  as  he  has  a  projected
retirement date of 30 June 2004 and does not have a current  test  on  file.
The DPPPWB evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The  applicant’s  counsel  rejects  JAJM’s  simplistic  view  of  adequate
procedures in this case.   Every  accused  facing  nonjudicial  punishment
proceedings is entitled to the evidence upon which a commander will  reply
and to the legally sufficient specification.  It is not good enough to say
an accused got the evidence and therefore his specification  need  not  be
legally  sufficient.   The  nature  of  this  allegation  in   particular,
dereliction of duty, is such that specificity is required at least  as  to
the duty or duties involved.  To say  the  applicant  was  given  the  CDI
Report is unacceptable.  Because of the broad reach of the report, in both
time and circumstances, the applicant literally had to guess what duty  or
duties were at issue.  JAJM cannot legitimately state that an  accused  is
entitled to proper specification by regulation and then dispense with  the
requirement  when  expedience  calls  for  strained  action.   A   legally
sufficient specification is critical because it gives the accused  context
in which to evaluate the evidence when making the decision  about  whether
to accept an offer of nonjudicial  punishment  proceedings,  or  demand  a
trial by court-martial.  Without this context, the accused cannot  perform
even a basic proof analysis  to  identify  which  items  of  evidence  are
relevant to his case and which are not.   Nor  can  the  accused  identify
which items of evidence he should  challenge;  or  what  evidence  he  can
marshal in his defense.  Finally, the accused cannot judge the severity of
the case.  The inability of the accused to perform these  basic  functions
in relation to a criminal charge, one for which  he  might  demand  trial,
serves to deprive the accused of substantive due process and  is  contrary
to fundamental notions of fairness.  Plain and simple,  it  is  error  and
injustice.  The applicant was  forced  to  accept  nonjudicial  punishment
because the government was unwilling to fully analyze evidence to draft  a
legitimate specification.  Because of the ambiguity he was faced with, the
applicant had no practical choice but to seek to  limit  his  exposure  by
accepting nonjudicial proceedings.  To this day, it is not clear just what
duty he specifically failed to adequately perform, and how.

The applicant has endured the indignity of retiring in a lesser  grade  on
the basis of his shabby Article 15. His fate and faith, and the  faith  of
his fellow enlisted members who pay attention to these actions,  rests  in
the  Board’s  hands.   Request  the  Board  mitigate  this  punishment  as
requested.  Justice, equity, and fairness require no less.

The applicant’s rebuttal 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.   After  reviewing  all  the   evidence
provided, the Board  is  not  persuaded  that  the  nonjudicial  punishment,
imposed on 18 December 2003, was improper.  While the Air  Force  Form  3070
does not include the specifications or the particular duty  or  duties  that
the applicant negligently failed to perform, we note AFI  51-202,  paragraph
3.8, allows nonjudicial punishment where the specification fails to  include
all  elements  of  the  offense.   It  requires  only  that  the  member  be
reasonably informed of the nature of the alleged misconduct.  We agree  with
JAJM’s opinion that the applicant was reasonably informed of the  nature  of
his misconduct because the Commander’s Directed Investigation (CDI)  Report,
provided to him, contained the particularity missing on the  AF  Form  3070.
The Board finds no evidence of error  in  this  case  and  after  thoroughly
reviewing the documentation provided in support of  his  appeal,  the  Board
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  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.   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  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 Board finds no  basis  upon  which  to  favorably  consider  the
applicant’s requests.

_________________________________________________________________

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 this application in  Executive
Session on 15 September 2004, under the provisions of AFI 36-2603:

            Mr. Laurence M. Groner, Panel Chair
            Ms. Jean A. Reynolds, Member
            Ms. Carolyn B. Willis, Member


The following documentary evidence for AFBCMR Docket Number
BC-2004-01407 was considered:

      Exhibit A.  DD Form 149, dated 20 Apr 04, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JA, dated 24 May 04.
      Exhibit D.  Letter, AFPC/DPPPWB, dated 22 Jun 04.
      Exhibit E.  Letter, SAF/MRBR, dated 9 Jul 04.
      Exhibit F.  Applicant’s Rebuttal, dated 27 Jul 04.




                                  LAURENCE M. GRONER
                                                   Panel Chair