RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02848
            INDEX NUMBER:  126.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 15 January 2003 be set aside.

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APPLICANT CONTENDS THAT:

His rights as provided for in the Manual for Courts-Martial (MCM) were
violated.  Specifically, his rights under the MCM, Part  V,  paragraph
4c(1)(D) and AFI 51-202, paragraph 3.9.1, which states  if  a  service
member requests a  personal  appearance,  they  will  be  entitled  to
examine documents or physical objects  against  the  member  that  the
nonjudicial punishment authority has examined in connection  with  the
case and on which the nonjudicial punishment authority intends to rely
in deciding whether and “how much” nonjudicial punishment  to  impose.
He was not allowed to review the documentation provided  and  was  not
informed that incidents that happened over 17  years  ago  were  being
considered by the group commander in how much  punishment  to  impose.
He has affidavits to substantiate this took place.

In support of his appeal, applicant  provides  12  attachments,  which
include an affidavit and other documentation related to his case.

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

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STATEMENT OF FACTS:

The applicant is presently serving on active  duty  in  the  grade  of
senior airman (SrA) (E-4).  His Total Active Federal Military  Service
Date (TAFMSD) is 11 Aug 86.  His present date of separation (DOS) is 6
Feb 05.  His high year of tenure date is  31 Aug 06, which would  give
him 20 years of service.  On 8 Jan 03, while applicant was serving  in
the grade of staff sergeant (SSgt), his group commander  notified  him
he was considering whether to punish the applicant  under  Article  15
for violation of the UCMJ, Article 111, for operating a passenger  car
while the alcohol concentration in his blood was 0.08 grams of alcohol
per 100 milliliters of blood or greater.  On 13 Jan 03, the  applicant
accepted proceedings under Article 15 and indicated he had attached  a
written presentation, had consulted a lawyer, and did  not  request  a
personal appearance.  On 15  Jan  03,  the  commander  determined  the
applicant had committed the charged  offense  and  imposed  punishment
consisting of reduction to the grade of SrA, with a new DOR of 15  Jan
03 and 45 days extra duty.  The applicant appealed the punishment  and
submitted matters in writing.  The applicant’s appeal was denied.  The
applicant’s records reflect an earlier Article 15 imposed  on  28  Aug
98, while he  was  serving  in  the  grade  of  SSgt,  for  drunk  and
disorderly conduct.  Punishment consisted of reduction to the grade of
senior airman with a new DOR of 28 Aug 98.   The  applicant  appealed,
but his appeal was denied.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of  the  applicant’s  appeal.   When  the
applicant became aware of the requirement to be allowed to examine any
statements and evidence used in the decision to impose punishment,  he
began a campaign to have the Article 15 set aside--not on  the  merits
of the case against him, but on the procedural  argument  his  records
from the Life Skills Management Office were not presented to him.   He
has requested relief through a request for set  aside  of  nonjudicial
punishment, a request for redress under Article  138,  “Complaints  of
Wrong under Article 138, UCMJ” and  an  IG  complaint.   Each  of  the
requests was denied.

Actions taken by the commander were not in violation of the identified
provision of the MCM.  The MCM, Part V, paragraph 4c(1)(D), states  if
the service member  requests  a  personal  appearance,  they  will  be
entitled to “be allowed  to  examine  documents  or  physical  objects
against the member which  the  nonjudicial  punishment  authority  has
examined in connection with the case  and  on  which  the  nonjudicial
punishment authority intends to rely in deciding how much  nonjudicial
punishment to impose.”  The  applicant  did  not  request  a  personal
appearance  and  would,  therefore,  not  be  entitled  to   such   an
examination.

The part of the MCM that applies to the applicant is Part V, paragraph
4a(3).  When the applicant was notified of the nonjudicial punishment,
he should have been provided a summary of the information  upon  which
the allegation was based or a statement  that  the  member  may,  upon
request, examine available statements and evidence.  This  requirement
was met via AF Form 3070.  In paragraph 1c, the applicant was notified
he had the rights listed on page 2 under “Rights  of  Member.”   Under
“Rights of Member,” part 1d states “you have the right to examine  the
evidence against you before making any  decisions.   Your  lawyer  may
assist you in making a statement and/or  obtaining  evidence  in  your
defense, and  for  use  in  extenuation  and  mitigation.”   Thus  the
requirements of the MCM were met in the applicant’s case.

The applicant’s understanding of the Article  15  process  is  flawed.
There are essentially two parts to the nonjudicial punishment process--
the  determination  to   impose   nonjudicial   punishment   and   the
determination of what punishment to impose.  The evidence  upon  which
the allegation was based was available to  the  applicant  before  the
commander decided the applicant committed the offense.   Additionally,
based on the applicant’s own statements, the  commander  provided  the
applicant evidence on 14 Jan 03 on which he based his decision on  how
much punishment to impose.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation,  applicant  indicates  he
did not annotate the appropriate block on the AF Form  3070,  but  did
appear before the nonjudicial punishment authority.  He states he  was
not allowed the opportunity to make pen and ink changes to the AF Form
3070  as  the  nonjudicial  punishment  authority  did  in  block  4a.
Regardless, he asserts the information from  Life  Skills  Management,
statements regarding his previous alcoholic history,  and  closed-door
sessions were not covered by the AF Form 3070.

Regarding his statement the commander provided him the information  on
14 Jan  03,  his  research  of  his  documentation  reveals  they  are
referring to the Article 138 complaint.  He states this is a typo  and
the date should be 15 Jan 03 when the punishment was imposed on him.

In support of his appeal, he provides a copy of the  transcripts  from
his Administrative Discharge Review Board, which  contains  the  sworn
testimony of the first sergeant and  commander  and  adds  significant
merit to his complaint.

The applicant’s complete response, with attachment, is at 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.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and adopt its rationale as the  basis
for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  Therefore, in the  absence  of  evidence  to  the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.

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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 Docket  Number  BC-2004-
02848 in Executive Session on 2 February 2005, under the provisions of
AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Mr. Vance E. Lineberger, Member
      Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Sep 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 26 Oct 04.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Nov 04.
    Exhibit E.  Letter, Applicant, dated 3 Dec 04, w/atchs.




                                   ROSCOE HINTON, JR.
                                   Panel Chair