RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02083
            INDEX CODES:  110.03, 126.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 imposed on 18  Mar  02  be
set aside and expunged from his records.

He be reinstated in the Air Force in the grade of staff sergeant  with
the date of rank (DOR) he held prior to the Article 15.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was wrongly accused and did not commit  the  acts  alleged  against
him.  The investigation into the allegations was poorly conducted  and
had no evidence to support he committed the acts.

In support of his appeal, the applicant provided an expanded statement
and extracts from his military personnel records.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 13  Aug  92  for  a
period of four years in the grade  of  airman  basic.   Prior  to  the
matter under review, he was progressively promoted  to  the  grade  of
staff sergeant.

Applicant’s Enlisted Performance Report (EPR) profile follows:

      PERIOD ENDING    EVALUATION

      28 Aug 94        4
      28 Aug 95        4
      28 Aug 96        5
      28 Aug 97        5
      28 Aug 98        5
      31 Mar 99        5
      31 Oct 99        5
      31 Oct 00        5
      31 Oct 01        4

On 8 Mar 02, the applicant was notified of his commander's  intent  to
impose nonjudicial punishment  upon  him  for,  on  about  1  Jun  99,
stealing military property (cellular phone) of a  value  greater  than
$100.00; and, on or about 1 Jun 99 and  31  Oct  99,  with  intent  to
defraud, falsely pretending he was an authorized user  and  wrongfully
obtained cellular telephone services of a value greater than $100.00.

On 13 Mar 02, after consulting with counsel, the applicant waived  his
right  to  a  trial  by  court-martial   and   submitted   a   written
presentation.

On 18 Mar 02, he was found guilty by his  commander  who  imposed  the
following punishment:  reduction from the grade of staff  sergeant  to
senior airman.  He appealed but it was denied.

On 2 Apr 02, the applicant  was  notified  by  his  commander  he  was
recommending the applicant be discharged from the Air  Force  for  the
commission of a serious offense.  The  reasons  for  this  action  was
that, on about 1 Jun 99, the applicant stole a military cellular phone
with a value greater than $100.00.  Also, between on or about 1 Jun 99
and  31 Oct 99, he fraudulently obtained  cellular  services  from  De
TeMobil Deutsche Telekom MobilNet  GmbH  with  a  value  greater  than
$100.00.  For these offenses he received an Article 15.

On 9 Apr 02, the applicant  waived  his  right  to  an  administrative
discharge board on the condition that  he  received  no  less  than  a
general discharge.

On 23 Apr 02, the office of the staff judge advocate  recommended  the
applicant’s conditional waiver be accepted and he be discharged with a
general discharge.

On  3  May  02,  the  discharge  authority  accepted  the  applicant’s
conditional waiver and directed that he be discharged with  a  general
discharge.

On 6 May 02, the applicant was discharged under the provisions of  AFI
36-3208 (Misconduct)  and  furnished  a  general  discharge.   He  was
credited with 9 years, 8 months, and 24 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating this is not a  case  for  set
aside.  As often  occurs,  this  case  presented  multiple  pieces  of
circumstantial  evidence  to  the  commander  at  the  time   of   the
nonjudicial punishment and to the next superior commander at the  time
the applicant’s  appeal  of  the  punishment.   When  considering  the
imposition of nonjudicial punishment, or when  considering  an  appeal
from such punishment, the commander must weigh the evidence, including
possible alternative interpretations, and draw  reasonable  inferences
from the known facts.  The commanders’ determinations  here  were  not
manifestly unreasonable or clearly unfair, and set aside is not in the
best interest of the Air Force.  Despite the applicant’s assertion the
evidence did not support the nonjudicial punishment, the preponderance
of the evidence indicated the applicant stole the government phone and
then surreptitiously used it for personal enjoyment.  In  AFLSA/JAJM’s
view, there is no error or injustice in connection with  the  military
justice  action  or  the  resulting  administrative  discharge.    The
commander’s imposition of a one-grade reduction was a permissible  and
proportionate punishment.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPRS recommended denial indicating that based on  the  available
documentation, the  applicant’s  discharge  was  consistent  with  the
procedural and substantive requirements of the  discharge  regulation,
and was within the discretion of the discharge authority.

A complete copy of the AFPC/DPPRS evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant  on  3
Sep 04 for review and response.  As of this date, no response has been
received by this office (Exhibit E).

_________________________________________________________________

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.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.   However,  the  majority  of  the  Board  does  not  find  the
applicant’s uncorroborated assertions or the  documentation  presented
sufficiently persuasive to override the rationale provided by the  Air
Force offices of  primary  responsibility  (OPRs).   The  evidence  of
record indicates the applicant received nonjudicial  punishment  under
Article 15 for stealing a military  cellular  phone  and  fraudulently
obtaining cellular services.  As a  result  of  the  Article  15,  the
applicant  was  involuntarily  discharged  from  the  Air  Force   for
misconduct.  The applicant now requests the  Article  15  be  expunged
from his records and he be reinstated in the Air  Force.   Unless  the
Article 15 is removed, no basis would appear to exist for  reinstating
the applicant.  However, the majority is not inclined  to  remove  the
Article 15 from the applicant’s records absent a  strong  showing  the
commander  who  imposed  the  punishment  abused   his   discretionary
authority.  Furthermore, no evidence has been  presented  which  would
lead the majority to believe his discharge was improper or contrary to
the governing directive under which it was  effected.   Therefore,  in
the absence  of  evidence  the  applicant's  substantial  rights  were
violated, the information contained in the  discharge  case  file  was
erroneous, or his  superiors  abused  their  discretionary  authority,
the majority of the Board adopts the Air Force rationale and  conclude
that no compelling basis  exists  to  recommend  granting  the  relief
sought in this application.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-02083 in Executive Session on 21 Oct 04, under the provisions  of
AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Deborah A. Erickson, Member
      Ms. Kathleen F. Graham, Member

By  a  majority  vote,  the  Board  voted  to  deny  the  application.
Ms. Graham voted to grant the appeal but did not desire  to  submit  a
minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 18 Aug 04.
    Exhibit D.  Letter, AFPC/DPPRS, dated 27 Aug 04.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Sep 04.




                                   RICHARD A. PETERSON
                                   Panel Chair



AFBCMR BC-2004-02083






MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.





                                           JOE G. LINEBERGER
                                           Director
                                           Air Force Review Boards
Agency