RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01717
            INDEX CODE:  111.02, 126.02,
                                              131.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His nonjudicial punishments under Article 15  of  the  Uniform  Code  of
Military Justice (UCMJ), imposed on 3 Dec 02 and  17  Jun  03,  be  declared
void and removed from his records.

2.  His Enlisted Performance Reports (EPRs) closing 19 Dec  02  and  16  Jun
03, be declared void and removed from his records.

3.  He be reinstated to the grade of staff sergeant with his  original  date
of rank and back pay and allowances.

4.  He be supplementally considered for promotion to the grade of  technical
sergeant beginning with cycle 03E6.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He received his first Article 15  punishment  and  was  reduced  from  staff
sergeant to senior airman for allegedly allowing  two  airmen  to  sleep  on
shift.  It was later revealed during his discharge board  hearing  that  the
Airmen had not been sleeping and one of the two stated that  he  might  have
dozed off.  This Airman was under investigation for  underage  drinking  and
had agreed with the superintendent to say whatever he wanted  him  to.   His
punishment was excessively harsh considering the alleged crime and the  fact
that neither of the Airmen received any punishment whatsoever.   His  second
Article 15, which resulted in loss  of  another  stripe  was  for  allegedly
abandoning his post and allowing an Airman to  abandon  her  post.   It  was
discovered during the discharge board that he had the  right  to  allow  the
Airman to leave her post as long as she was not gone  for  30  minutes.   On
all four occasions he allowed  the  junior  controller  to  leave,  she  had
returned within 15 minutes.  He left the Command Post  for  a  duty  related
task to assist the OSI.  Due to his error, he  returned  45  minutes  later.
He was prepared to receive punishment for his error but his  punishment  was
extreme, as agreed by the discharge review board members,  especially  since
he was conducting primary  related  duties.   During  his  discharge  review
board proceedings, several  of  his  former  supervisors  testified  on  his
behalf and stated that  the  punishments  he  received  were  extreme.   The
findings of the board were all in his favor with exception to the  technical
violation for abandoning his post.  He asked his commander  to  redress  his
Article 15 punishments, but his request was denied.

In support of his request applicant  provided,  a  personal  statement;  and
documentation associated with his Article 15 punishments, his referral  EPRs
and  appeals,  and  his  discharge  review  board  process.   His   complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  14
Jun 93.  He was progressively promoted  to  the  grade  of  staff  sergeant,
having assumed that grade effective and with a date of rank of 14 Jun 96.

On 22 Nov 02, while serving as a Command Center  Controller,  the  applicant
was notified by  his  commander  of  her  intent  to  recommend  nonjudicial
punishment under Article 15 of the UCMJ for dereliction in  the  performance
of his duties by failing to effectively employ personnel under  his  control
by allowing two airmen to be absent from their station and one  of  them  to
fall asleep on duty.  He was advised  of  his  rights  in  this  matter  and
acknowledged receipt of the notification on  2  Dec  02.   After  consulting
counsel, the applicant waived his right to demand  trial  by  court-martial,
accepted  Article  15  proceedings,  and  provided  a   written   and   oral
presentation to his commander.  On 3 Dec 02, after consideration of all  the
facts, his commander determined  that  he  committed  one  or  more  of  the
offenses alleged and imposed punishment on the applicant.   He  was  reduced
to the grade of senior airman with  a  date  of  rank  of  3  Dec  02.   The
applicant appealed his punishment to 30 MSG/CC.  His appeal was denied.

On 4 Jun 03, the applicant was notified by his commander of  his  intent  to
recommend  nonjudicial  punishment  under  Article  15  of  the   UCMJ   for
dereliction in the performance of his duties in that he willfully failed  to
maintain a minimum of two authorized controllers on duty.   He  was  advised
of his rights in this matter and acknowledged receipt  of  the  notification
on 13 Jun 03.  After consulting counsel, the applicant waived his  right  to
demand  trial  by  court-martial,  accepted  Article  15  proceedings,   and
provided a written and oral presentation to his commander.   On  17 Jun  03,
after consideration of all the  facts,  his  commander  determined  that  he
committed one or more of the offenses alleged and imposed punishment on  the
applicant.  He was reduced to the grade of airman first class  with  a  date
of rank of 17 Jun 03.  The applicant appealed his punishment to  30  MSG/CC.
His appeal was denied.

The applicant's HYT date has been established as 21 Jun 05.

The  applicant's  commander  initiated   a   recommendation   that   he   be
administratively discharged from the Air Force.  A discharge  board  hearing
was held on 11 Sep 04.  The board found in a split decision that he did  not
have  an  unprofessional  relationship  with  a  subordinate,  that  he  was
derelict in the performance of his duty by not remaining at  his  post,  and
that he was not otherwise derelict in the performance of  his  duties.   The
board recommended retention in the Air Force.

The applicant's recent EPR profile is as follows:

      PERIOD ENDING    PROMOTION RECOMMENDATION

      16 Jun 04              2
      16 Jun 03                   2*
      19 Dec 02                   2*
      20 Nov 01                   5
      20 Nov 00                   5

* - Contested EPRs

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states this case  presented  conflicting
evidence to the commander and the appellate authority at  the  time  of  the
Article 15 punishment.  The commander's determinations were  not  manifested
unreasonably or clearly unfair, and set aside is not in the  best  interests
of the Air Force.  Although he asserts there was largely no  basis  for  the
punishments, each of the allegations was supported in fact and law.  In  the
case of the first Article 15, he allowed two on-duty controllers  under  his
supervision to leave the command center console to watch  a  movie,  leaving
him alone at the console.  This is in violation of AFSCI 10-210,  Operations
Centers  (Command  Post)  Policies  and  Procedures,  which  provides   that
"[Console Operations] consists of two certified controllers manning  the  OC
console 24-hours a day."  His noncompliance of  this  rule  is  tempered  by
evidence  of  a  persistent  practice  in  the  command  center   to   allow
controllers  during  sometime  to  watch  television  or   movies   in   the
Battlestaff area. Nevertheless, this extenuating or mitigating  circumstance
does not render the commander's decision unreasonable.   As  to  the  second
Article 15 he left only one controller to man the console, one  of  the  two
bases for the punishment, presumably contravenes  the  two-controller  rule.
He admitted to the other basis for the punishment.  Even though his  absence
was for official business, such mitigation was for the  commander  to  weigh
in exercising her discretion in imposing nonjudicial punishment.

The reductions to the  next  lower  grades  were  well  within  the  maximum
permissible punishment and was appropriate considering both that he  was  in
a leadership position and the nature of  the  offenses  was  dereliction  of
duty as duty as a supervisor.  He provided no evidence of a clear-cut  error
or injustice.  The JAJM evaluation is at Exhibit C.

AFPC/DPPPE recommends denial.  DPPPE states although the applicant  contends
his punishment was disproportionately  harsh  for  the  offenses,  the  fact
remains he received Article 15s for his actions.  If  the  Board  finds  the
Article 15s inappropriate and sets them aside, the EPRs should be voided.

DPPPE did  find  administrative  errors  on  both  reports  that  should  be
corrected.   Both  EPRs  and  the  referral  memorandum  contain  prohibited
comments that should be administratively corrected.  In addition the 19  Dec
02 EPR contains new information that should have  been  re-referred  to  the
applicant.  DPPPE recommends the reports be  administratively  corrected  if
the Board does not determine voidance is appropriate.

DPPPWB states if the Board should set aside both Article 15s and remove  the
referral  reports,  he  would  be  eligible   for   supplemental   promotion
consideration beginning with cycle 03E6.  The DPPPE/DPPPWB  evaluations  are
at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  15
Oct 04 for review and comment within 30 days.  As of this date, this  office
has received no response.

_________________________________________________________________

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 that  would  warrant  set  aside  of  his
Article 15 actions  or  removal  of  the  contested  reports.   We  find  no
evidence  of  error  in  this  case  and  after  thoroughly  reviewing   the
documentation provided in support of his  appeal,  we  do  not  believe  the
applicant has suffered an injustice.  We are not persuaded by  the  evidence
presented that the nonjudicial punishments, imposed on 3 Dec 02 and  17  Jun
03, were improper.  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.  We  have  no  such  showing  here.   The  evidence
indicates that, during  the  processing  of  his  Article  15  actions,  the
applicant was offered  every  right  to  which  he  was  entitled.   He  was
represented by counsel, waived his right to demand trial  by  court-martial,
and submitted matters for review by the  imposing  commander  and  appellate
authority.  After considering the  matters  raised  by  the  applicant,  the
commander determined that the applicant had committed "one or  more  of  the
offenses alleged" and imposed punishments on the applicant.   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  the  Article  15
punishments, or that the punishments exceeded the maximum authorized by  the
UCMJ.

With respect to his EPRs closing on 19 Dec 02 and 16 Jun 03, with  exception
to the administrative errors noted by the Air Force, we  are  not  persuaded
that the contested reports are erroneous or  that  they  are  an  inaccurate
depiction of his performance and demonstrated potential for  the  period  in
question.  In the rating  process,  evaluators  are  required  to  assess  a
ratee's performance, honestly and to the best of their ability.  In  judging
the  merits  of  this  case,  we  took  careful  note  of  the   applicant's
contentions; however, we are not persuaded by the  evidence  presented  that
the ratings were based on inappropriate considerations or  that  the  raters
abused their discretionary authority.  Therefore, in  the  absence  of  such
evidence, we find no basis upon which to favorably consider the  applicant's
request that the reports be removed from his records.  The errors  noted  by
the Evaluations Appeals Branch are administrative  in  nature  and  we  have
been advised that they will be corrected accordingly.

_________________________________________________________________

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 AFBCMR Docket Number  BC-2004-
01717 in Executive Session on 9 Dec 04, under  the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Dorothy P. Loeb, Member
      Ms. Carolyn B. Willis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Apr 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 6 Aug 04.
    Exhibit D.  Letter, AFPC/DPPPE, dated 7 Oct 04.
    Exhibit E.  Letter, SAF/MRBR, dated 15 Oct 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair