RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03635
            INDEX NUMBER:  126.00
      XXXXXXXXXXXXXXXX COUNSEL:  Alan DeWoskin

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on  1  May  99  be  set  aside  and  all
property and rights of which he has been deprived be restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a two-page  brief  of  counsel  with  40  attachments,  applicant’s
counsel  alleges  the  government  made  the  following   errors   and
materially prejudiced the applicant’s substantial rights:

        a.  Applicant was not allowed to  examine  the  documents  the
nonjudicial punishment authority examined in connection with the  case
and on which they relied in deciding whether or not he  would  receive
nonjudicial punishment and the punishment received.  The  8th  Circuit
Court of Appeals agreed the Air Force did not  provide  him  with  the
documents regarding his case and ordered  them  to  provide  him  with
nearly all of the redacted portions of a  document.   The  nonjudicial
punishment authority relied on the redacted portions.

        b.  Applicant was  not  given  the  right  to  have  witnesses
testify, including those adverse to him even  though  their  testimony
and statements were relevant and they were reasonably available.

        c.  Applicant was  not  allowed  to  present  matters  in  his
defense and mitigation.   Applicant  asked  several  people  to  write
character  references,  but  none  were  given  to   the   nonjudicial
punishment authority because they were told by the  chain  of  command
not to provide character references to the applicant.

        d.  Applicant was  not  advised  in  accordance  with  Article
31(b).  Throughout the  investigation,  he  was  not  advised  of  his
Article 31 rights when  he  was  interviewed  and  interrogated  as  a
suspect.

        e.  Applicant was not allowed or provided the  opportunity  to
appear personally before the nonjudicial punishment authority.  He was
willing to appear before the authority at his own  expense  and  there
were no extraordinary circumstances that would have prevented him from
personally appearing.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 23  Aug  77  and
was promoted up to the grade of senior master sergeant (SMSgt)  (E-8).
On 16 Mar 99, his Wing  commander  notified  him  he  was  considering
whether to recommend the Numbered Air Force (NAF) commander punish him
under Article 15 of the Uniform Code of Military  Justice  (UCMJ)  for
the offenses of dereliction of duty for willfully failing  to  refrain
from engaging in sexual activity with a subordinate member of his unit
and for wrongfully having sexual intercourse with an airman,  not  his
wife.  On 29 Mar 99, the applicant indicated he had consulted counsel,
waived his right to court-martial and accepted nonjudicial proceedings
under Article 15, requested a closed personal appearance and submitted
a written presentation.  On 1 May 99, the NAF commander determined  he
committed one or more of the alleged offenses.  He imposed  punishment
consisting of reduction to the grade of master sergeant  (MSgt)  (E-7)
with a new date of rank of 1 May 99, and a reprimand.   The  applicant
appealed the punishment and elected to submit matters in writing.  The
appeal authority, the Air Combat Command Vice  Commander,  denied  the
appeal.  The applicant subsequently applied for  voluntary  retirement
and retired effective 1 Oct 99 with 22 years, 1 month, and 8  days  of
active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s appeal.  They  provide
a detailed summary of the events that led  to  applicant’s  punishment
under Article 15 and subsequent actions  taken  by  the  applicant  in
regards to the Article 15  punishment.   They  provide  the  following
responses to applicant’s five contentions:

        a.  Regarding applicant’s contention he  was  not  allowed  to
examine the documents that the nonjudicial punishment authority relied
on  in  deciding  whether  the  applicant  would  receive  nonjudicial
punishment …, the applicant was provided all the documents upon  which
the commander relied on in deciding his case.  The applicant was  also
provided redacted copies of correspondence pertaining to the case that
contained opinions and recommendations.   The  redacted  portions  are
protected by the deliberative process privilege, as held  by  the  8th
Circuit Court of Appeals.  Additionally, the applicant was advised  of
his  right  to  counsel  and  consulted  counsel  prior  to  accepting
nonjudicial punishment proceedings.  Applicant states in the  AF  Form
3070 he consulted with a lawyer.  That is all that is required.

        b.  Regarding applicant’s contention  he  was  not  given  the
right to have witnesses testify, there is no  evidence  he  wished  to
present any other witnesses on his behalf, nor evidence  indicating  a
particular witness had  exculpatory  information.   In  a  nonjudicial
punishment proceeding, there  is  only  a  limited  right  to  present
witnesses and no right to  directly  confront  witnesses  against  the
accused.  The applicant waived greater rights when he waived trial  by
court-martial and accepted nonjudicial punishment proceedings.

        c.  Applicant contends that at least one officer was  deterred
from writing a character letter because “he was advised not to.”   The
sole evidence supporting this allegation is an unverified copy of an e-
mail from another officer.  While troubling, if true,  the  e-mail  is
insufficient to establish improper command influence.

        d.  In signing the AF Form 3070, the  applicant  indicated  he
understood the rights enumerated on the second  page,  which  includes
the right to remain silent under Article 31.

        e.  While  the  applicant  did  not  appear  before  the  Wing
commander, he did appear  before  the  Vice  Wing  commander  to  whom
authority to conduct the hearing may  be  delegated  pursuant  to  the
Manual for Courts Martial, Part V,  Paragraph  (2)(c).   There  is  no
right for the accused to choose the  nonjudicial  punishing  authority
and no right to demand a hearing before the Wing commander.

The applicant reacted to Article 15 punishment in a manner  unbecoming
a senior noncommissioned officer.  He did  not  accept  responsibility
for his actions and showed no remorse.  Instead,  he  blamed  everyone
around him for his own failings, even his  superiors  for  failing  to
anticipate his  misconduct  and  stop  him  before  he  committed  the
offenses.  Further, he attacks  the  integrity  of  the  officers  and
agents involved in  administering  punishment  to  him  following  his
misconduct.  But, significantly, he  does  not  deny  the  allegations
against him and does not provide any evidence there was  an  error  or
injustice in the administration of the Article 15.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB advises if the applicant’s Article 15 is  set  aside,  his
date of rank as a SMSgt would be 1 Aug 97.  They defer to AFLSA/JAJM’s
recommendation regarding the applicant’s appeal.

The complete evaluation is at Exhibit D.

_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluation.  He asserts
the Article 15 imposed on the applicant should be  set  aside  because
the applicant was not provided due process.  Counsel provides  a  list
of rights the applicant was entitled to and did not receive.   Counsel
reemphasizes the arguments  made  in  the  initial  appeal.   He  also
attaches a resume of the applicant’s  accomplishments  and  activities
since retiring from the Air Force.

Counsel’s response 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 not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

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  their  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.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of   the   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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-
03635 in Executive Session on 2 March 2005, under  the  provisions  of
AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Mr. Clarence D. Long, III, Member
      Mr. Patrick C. Daugherty, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Nov 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 27 Dec 04.
    Exhibit D.  Memorandum, AFPC/DPPPPWB, dated 14 Jan 05.
    Exhibit E.  Letter, SAF/MRBR, dated 28 Jan 05.
    Exhibit F.  Letter, Counsel, dated 21 Feb 05, w/atchs.




                                   MICHAEL J. NOVEL
                                   Panel Chair