RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02063
            INDEX CODES:  100.06, 107.00,
                          126.03, 128.00,
                               131.09

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  14 Apr 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 imposed on  2  Jul  01  be
declared void and expunged from his records.

His reenlistment eligibility (RE) code of 4H be changed to 1J.

His grade  of  senior  airman  be  changed  to  staff  sergeant,  with
reimbursement of one month’s differential in staff sergeant and senior
airman pay.

He be awarded the Air Force Achievement Medal (Second Oak Leaf Cluster
(2OLC)) for his Honor Guard Service from Apr 98 to Feb 01.

He be reimbursed his education costs due to the  cancellation  of  his
Scholarship for Outstanding Airman to  the  Reserve  Officer  Training
Corps (SOAR).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His first sergeant issued  conflicting  orders  regarding  his  making
contact with his wife, withheld his wife’s  statement,  indicating  he
did not assault her and that she lied, and information that would have
facilitated a request for court-martial proceedings,  compromised  the
Area Defense Counsel (ADC), and harassed and hindered his  pursuit  of
justice prior to and after his date of separation (DOS).

The legal counsel on the Article 15 is incorrect.

The punishment was excessive.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 19 Feb 97 for a  period
of four years in the grade of airman basic.

On 18 Jun 01, the applicant was notified of his commander's intent  to
impose nonjudicial punishment upon him for failure to  obey  a  lawful
order to have no contact with his spouse between 26 May 01 and 27  May
01, in violation of the UCMJ, Article 92.

On 28 Jun 01, after consulting  with  counsel,  applicant  waived  his
right  to  a  trial  by  court-martial,  requested  to  make  an  oral
presentation, and submitted a written presentation.

On 2 Jul 01, he was found guilty by  his  commander  who  imposed  the
following punishment:  a reduction from the grade of senior airman  to
airman first class, which was suspended until 1 Jan 02, after which it
was remitted, and a reprimand.  He indicated on 2 Jul 01 that he would
appeal; however, on 6 Jul 01, he withdrew his decision to appeal.

Applicant was honorably released from active duty on 19 Aug  01  under
the provisions of AFI 36-3208 (To  Attend  School)  in  the  grade  of
senior airman.  He was credited with four  years  and  six  months  of
active service.

Information extracted from the Personnel Data System  (PDS)  indicates
the applicant is currently serving on active  duty  in  the  grade  of
second lieutenant, having been appointed to that grade on  9  Jan  05.
His Total Active Federal Military Service Date (TAFMSD) is 7 Aug 00.

_________________________________________________________________

AIR FORCE EVALUATION:

AFOATS/JA  recommended  denial  of  the  applicant’s  request  to   be
reimbursed his education costs due to the cancellation  of  his  SOAR.
They noted that  in  Dec  00,  the  applicant  was  nominated  by  his
commander and selected under  the  small  unit  category  for  a  SOAR
scholarship.  However, prior to the AFROTC giving him authorization to
separate to participate in the program,  his  commander  notified  the
AFROTC of disciplinary  actions  pending  against  the  applicant  and
requested his  selection  be  voided.   He  subsequently  received  an
Article 15.  According to AFOATS/JA, the applicant has  not  submitted
sufficient evidence to substantiate his request.  In his own statement
he indicated he willfully violated the no contact  order.   Therefore,
the  commander  had  every  right  to  issue  an  Article  15,   which
subsequently cancelled his SOAR nomination.

A complete copy of the AFOATS/JA evaluation is at Exhibit C.

AFPC/DPPPR recommended denial of the applicant’s request for award  of
the AFAM (2OLC).   In  their  view,  he  did  not  provide  sufficient
documentation to substantiate his request.

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

AFLSA/JAJM recommended denial  indicating  that  a  set  aside  of  an
Article 15 should only be granted when the  evidence  demonstrates  an
error or a clear injustice.  In  their  view,  the  offense  was  well
supported by the evidence and the punishment imposed was justified and
reasonable.  The basis  of  the  applicant’s  request  for  relief  is
insufficient to warrant setting aside the Article 15 or the associated
relief he seeks.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  detailed
response and additional documentary evidence, to include a  videotape,
which are attached at Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPPPWB noted the applicant was tentatively selected for promotion
to staff sergeant during  cycle  00E5.   However,  the  fact  that  he
received an Article 15 with a  suspended  reduction  to  airman  first
class rendered him ineligible for promotion consideration.  Should the
Board remove the Article 15, they could direct restoration of his rank
to staff sergeant with a date of rank (DOR) of 1 Jul 01.

A complete copy of the AFPC/DPPPWB evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  25
Mar 05 for review and response.  As of this date, no response has been
received by this office (Exhibit I).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ AFROTC/RRUE indicated that their records showed the  applicant  was
selected in Dec 00 to participate in the SOAR  program  by  his  major
command (MAJCOM).  He was to receive a Type 2 scholarship allowing him
to attend schools and universities not  costing  over  $15,000.00  per
year in tuition and fees associated with the school attended.  He also
would have been entitled to  a  textbook  allowance  at  the  time  of
$450.00 and a stipend  of  $200.00  a  month.   At  the  time  of  his
application, the applicant submitted  documentation,  to  include  the
academic plan,  supporting  his  eligibility  to  participate  in  the
program.   They  no  longer  have  any  documentation  concerning  the
applicant to assist them in determining  what  school  he  planned  to
attend or the number of courses needed to complete the degree he would
have pursued at the time.  This data would be needed in verifying what
his entitlements might have been.  Schools  charge  tuition  and  fees
either by the term or the number of courses  taken  during  the  term.
Without this data, they could not ascertain when the  applicant  would
have graduated, what courses he needed  to  complete  the  degree,  or
whether the school charged by the term or number of courses taken.

A complete copy of the HQ AFROTC/RRUE evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

By letter, dated  5  Jul  05,  the  applicant  provided  documentation
regarding verification of his possible entitlements due to the loss of
his AFROTC Scholarship, which is attached at Exhibit L.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFOATS/JA indicated that according to the Base Educators Guide,  dated
1 Mar 00, to be eligible for SOAR, the member is first  nominated  and
then meets a board to determine  eligibility.   AFROTC  then  notifies
members if they were selected or non-selected.  According  to  AFOATS,
the applicant never met the board; therefore, he was not due any  SOAR
monies.  Had he contracted and received SOAR monies, he would owe  the
Air Force four years of military time as  compensation.   The  tuition
the applicant paid for 2001 amounts to $1453.42, along with $255.00 in
book allowance and $1,000.00 for a stipend for a  total  of  $2708.42.
The tuition he paid in 2002 amounts to $3,942.84, along  with  $255.00
in book  allowance  and  $1,000.00  for  a  stipend  for  a  total  of
$5,045.80.  The tuition paid in 2003 amounts to $2,365.38, along  with
$255.00 in book allowance and $1,000.00 for a stipend for a  total  of
$3,620.38.  The tuition paid in 2004 amounts to $4,545.85, along  with
$255.00 in book allowance and $1,000.00 for a stipend for a  total  of
$5800.85. These amounts combined total would be  $14,467.03;  however,
that price goes with an Air Force commitment of four years.

In AFOATS/JA’s  view,  the  applicant  has  not  submitted  sufficient
evidence to  substantiate  his  request  that  he  be  reimbursed  the
education costs due to the cancellation of his SOAR entitlements.   In
his own statement, he stated that he willfully violated the no contact
order.  Therefore, the commander had every right to issue  an  Article
15, which subsequently cancelled his SOAR nomination.

A complete copy of the AFOATS/JA evaluation is at Exhibit M.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  response
indicating, in part, that he  has  submitted  sufficient  evidence  to
validate his eligibility for SOAR monies, his  Article  15  punishment
should be set aside, and that he is serving a  minimum  four-year  Air
Force commitment.

Applicant’s complete response, with attachments, is at Exhibit O.

_________________________________________________________________

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 injustice.  The  applicant's  complete  submission
was thoroughly reviewed and his contentions were duly noted.  However,
we do not  find  the  applicant’s  assertions  and  the  documentation
presented in support of his requests the nonjudicial punishment  under
Article 15 imposed on  2 Jul  01  be  voided  and  expunged  from  his
records; his grade of senior airman be changed to staff sergeant, with
reimbursement of one month’s differential in staff sergeant and senior
airman pay; he be awarded the AFAM (2OLC); and, that his RE code of 4H
be changed to 1J sufficiently persuasive  to  override  the  rationale
provided by the Air Force offices of  primary  responsibility  (OPRs).
No evidence has been presented which shows  to  our  satisfaction  the
information used  as  a  basis  for  the  nonjudicial  punishment  was
erroneous or there was an abuse of discretionary authority,  and  that
he was improperly denied promotion to staff sergeant and award of  the
AFAM (2OLC).  Concerning his request that his RE code be  changed,  we
believe this is now a moot issue since he is  now  serving  on  active
duty.  In view of the foregoing, and  in  the  absence  of  sufficient
evidence to the contrary, we adopt the OPRs’ rationale  as  the  basis
for our decision that the applicant has failed to sustain  his  burden
of establishing he has  suffered  either  an  error  or  an  injustice
regarding the aforementioned requests.

4.  Notwithstanding the above, we are inclined to afford the applicant
favorable relief regarding his  request  that  he  be  reimbursed  his
education costs due to the cancellation of his SOAR.  In this respect,
the available evidence indicates he was nominated by his commander and
selected for the SOAR scholarship.  However, prior to  his  separation
to participate in  the  program,  his  commander  requested  that  his
selection be  voided  based  on  pending  disciplinary  actions  which
ultimately resulted in his nonjudicial punishment  under  Article  15.
As indicated above, we find no evidence that shows to our satisfaction
the imposition  of  the  Article  15  was  improper  or  an  abuse  of
discretion.  Nevertheless, we  note  the  applicant  was  subsequently
released from active  duty  to  attend  school,  which  he  has  since
completed at his own expense, and is now serving on active duty  as  a
commissioned officer.  In view of the applicant’s prior  selection  by
his commander to participate in the SOAR, his successful completion of
school, his  current  service  on  active  duty,  and  to  remove  the
possibility of an  injustice,  we  believe  the  applicant  should  be
reimbursed his education costs.  Accordingly, we recommend his records
be corrected to the extent set forth below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that  competent  authority
approved his participation in the Scholarship for  Outstanding  Airman
to  the  Reserve  Officer  Training  Corps  (SOAR),  and  that  he  be
reimbursed his educational expenses not to exceed $14,467.03.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-02063 in Executive Session on 8 Jun 05 and  1 Dec 05,  under  the
provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Dorothy P. Loeb, Member
      Mr. Clarence D. Long III, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 24 Jun 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFOATS/JA, dated 9 Jul 04.
     Exhibit D.  Letter, AFPC/DPPPR, dated 10 Aug 04.
     Exhibit E.  Letter, AFLSA/JAJM, dated 18 Aug 04.
     Exhibit F.  Letter, SAF/MRBR, dated 27 Aug 04.
     Exhibit G.  Letter, applicant, dated 10 Sep 04, w/atchs.
     Exhibit H.  Letter, AFPC/DPPPWB, dated 10 Mar 05.
     Exhibit I.  Letter, SAF/MRBR, dated 25 Mar 05.
     Exhibit J.  Letter, HQ AFROTC/RRUE, dated 23 Jun 05.
     Exhibit K.  Letter, AFBCMR, dated 27 Jun 05.
     Exhibit L.  Letter, applicant, dated 5 Jul 05, w/atchs.
     Exhibit M.  Letter, AFOATS/JA, dated 6 Sep 05.
     Exhibit N.  Letter, AFBCMR, dated 21 Sep 05.
     Exhibit O.  Letter, applicant, dated 30 Sep 05, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair



AFBCMR BC-2004-02063




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 competent authority
approved his participation in the Scholarship for Outstanding Airman
to the Reserve Officer Training Corps (SOAR), and that he be
reimbursed his educational expenses not to exceed $14,467.03.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency