RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01102
            INDEX NUMBER:  111.00; 126.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  1 Oct 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 11  Aug  04  be  set  aside  and  all
property,  rights,  and  privileges,  of  which  he  was  deprived  be
restored.

The Enlisted Performance Report rendered on him for the period   3 Oct
03 through 2 Oct 04 be declared void and removed from his record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article  15  he  received  was  based  on  false  information  and
misconceptions within the education and training career field.  He was
never given the opportunity to respond to the offenses alleged in  the
Article 15.

He never made a false official statement.

He identified personnel performing duty outside of their  Control  Air
Force Specialty Code (CAFSC) in  preparation  for  a  Unit  Compliance
Inspection.  His commander did not agree with  his  identification  of
personnel assigned to him.  He was later wrongfully demoted.

In support of his appeal, applicant provides a copy  of  an  Inspector
General (IG) complaint form,
_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active  duty  in  the  grade  of
staff sergeant (SSgt) (E-5) in Air Force Specialty Code (AFSC)  3S251,
Unit Training Manager.  He entered active duty on 9  Jul  90  and  was
promoted up to the grade of technical sergeant (TSgt)  (E-6).   On  19
Jul 04,  the  applicant’s  squadron  commander  notified  him  he  was
considering whether  to  punish  him  under  Article  15  for  alleged
offenses on or about 15 Jun 04 of dereliction  of  duty  by  willfully
failing to report correct numbers on the Status of Training report and
for making  a  false  official  statement.   The  applicant  initially
responded on 21 Jul 04 and demanded trial by court-martial in lieu  of
nonjudicial  punishment.   However,  in  a  letter  to  his   squadron
commander dated 11 Aug 04, the applicant indicates that he  wanted  to
accept nonjudicial punishment and waive his  right  to  court-martial.
According to the AF  Form  3070,  “Record  of  Nonjudicial  Punishment
Proceedings, the applicant did not attach a written presentation,  did
not request a personal appearance, or consult a lawyer.  On 11 Aug 04,
the squadron commander determined that  the  applicant  committed  the
alleged offenses.  He imposed punishment consisting  of  reduction  to
the grade of SSgt and 30 days extra duty, suspended  for  six  months.
The applicant did not appeal.

A resume of the applicant’s last 10 EPRs follows:

      Closeout Date                     Overall Rating

        8 Mar 96                        5
       11 Nov 96                        4
       11 Nov 97                        5
       11 Nov 98                        5
       11 Nov 99                        5
       02 Oct 00                        5
       02 Oct 01                        5
       02 Oct 02                        5
       02 Oct 03                        4
      *02 Oct 04                        2

*  Contested referral report

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s appeal.  The applicant
has not provided evidence of a clear error or injustice related to the
nonjudicial punishment action.

In support of his contentions, the applicant provides his reply  to  a
letter of reprimand (LOR) issued by his flight commander,  MFRs  dated
between 31 Oct 03 and 26 Jan 05.  The  MFRs  describe  situations  and
events where the applicant felt like he was wronged in some way.   The
applicant also submitted a copy of an Article 138  complaint  that  he
previously filed concerning another Air Force member in the unit and a
copy of an IG complaint.  While these  documents  provide  information
regarding his perceived treatment,  they  provide  little  information
directly concerning the Article 15 action, other than his reply to the
LOR, which formed the basis for the Article 15 action.

The applicant’s request to have the Article 15 action  set  aside  and
the EPR removed from his records is based on the premise  he  did  not
make false statements and that the  Article  15  was  based  on  false
information and  misconceptions  within  the  Education  and  Training
career field.  However, while he explains why he did not  include  the
four overdue members for training in the official Status  of  Training
Report or in his report, he does not show that all four  members  were
not overdue for training.

Nonjudicial punishment is ordinarily appropriate  when  administrative
corrective measures are inadequate due to the nature of the offense or
the record of the service member, unless it is clear that  only  trial
by court-martial will  meet  the  needs  of  justice  and  discipline.
Commanders considering  nonjudicial  punishment  should  consider  the
nature of the offense, the record of the service member, the needs for
good order and discipline, and the effect of good order and discipline
on  the  service  member  and  the  service  member’s   record.    The
applicant’s commander, having applied that standard to the  individual
circumstances of the  applicant’s  case  determined  that  Article  15
action was warranted.   The  commander  had  the  legal  authority  to
demand, in the interest of justice and discipline, an accounting  from
the applicant in  the  Article  15  process  for  the  offenses.   The
applicant waived his right to be  tried  by  court-martial  and  chose
instead to accept Article 15 proceedings, placing the determination of
guilt or innocence in his commander’s hands.

The complete evaluation is at Exhibit C.

AFPC/DPPP recommends denial of the applicant’s  request  to  void  and
remove the EPR closing 2 Oct  04  from  his  records.   The  applicant
failed to provide any supporting evidence proving the  information  on
his report is inaccurate.  The applicant provided numerous memorandums
he prepared, but failed to gain any support from  his  evaluators.  He
also failed to provide supporting documentation from an  investigative
office substantiating the information on the report is inaccurate.

AFPC/DPPP also  provides  information  regarding  the  impact  on  the
applicant’s promotion to TSgt should the Article 15 be set  aside  and
if the Article 15 is set aside and the EPR is removed.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant provided separate responses to each  of  the  Air  Force
evaluations.   In  his  response  to  the   evaluation   prepared   by
AFLSA/JAJM, applicant states  that  AFLSA/JAJM  has  missed  the  most
important piece of information indicating a clear injustice concerning
the documents he has included in his application.  He discusses a MFR,
dated 22 Mar 04, he  states  he  submitted  to  his  commander,  which
clearly revealed a conspiracy by his rater and a  senior  NCO  in  his
unit to blame him one for the senior NCO’s poor duty performance.   As
a result of the MFR, the senior NCO announced his retirement  and  the
other was removed as his rater.  Applicant claims his commander  later
used documents placed in his personal information file  (PIF)  by  the
senior NCO and rater to justify demoting him by Article 15.

Applicant discusses his duties as training manager for four  squadrons
and  actions  he  took  regarding  the  training  status  of  assigned
personnel.  Applicant also discusses why the charges he  was  punished
under Article 15 did not have merit.  Applicant discusses how he  came
to accept proceedings under  Article  15  after  initially  requesting
trial by court-martial.  He also opines that the Article 15 action was
not properly conducted and he was not given an opportunity to  develop
and present his case.

The applicant indicates he is “firmly  cognizant”  he  was  wrongfully
demoted.  He notes that as a 14 year TSgt  with  no  prior  record  of
disciplinary action, he was demoted  to  the  rank  of  SSgt  for  not
reporting four training overdues.   He  has  lost  over  $5,000.00  in
salary to date.  He claims he was later made ineligible for a  $30,000
retirement bonus at his 15-year  point  of  military  service  and  is
presently ineligible to reenlist.  He states his squadron commander is
the driving force behind the unjust disciplinary actions.

In further support of his response to the  evaluation,  the  applicant
provides six attachments, including the MFR dated 22 Mar 04.

The applicant’s complete response is at Exhibit F.

In  his  response  to  the  evaluation  by  AFPC/DPPP,  the  applicant
reiterates that the EPR closing 2 Oct 04 is not an accurate rating  of
his duty performance for that  period.   He  refers  the  Board  to  a
memorandum attached to this reply that discusses a  problem  the  lead
instructor allowed  to  happen  and  that  he  subsequently  resolved.
However, he received a LOR from his rater for not using the  chain  of
command.  Applicant also notes that he has  attached  MFRs  concerning
tardiness that are still filed in his personal information file.   The
applicant further notes that if one reviews his EPRs  from  throughout
his career, the referral report he is contesting does not fit.

In support of his response, applicant provides nine attachments.

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

_________________________________________________________________

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 opinions and recommendations  of  the  Air
Force offices 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.  The applicant has submitted a large
volume of uncorroborated evidence that  simply  does  not  prove  his
stated contentions.  Although the  applicant  included  a  form  that
appears to show that he filed an IG  complaint,  we  were  unable  to
obtain a formal Report of Investigation that supports his belief that
he has been the victim of an error or injustice.  While we note  that
the referral EPR  he  received  is  a  departure  from  his  previous
ratings, this fact alone is not sufficient to invalidate the  report.
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 probable 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-2005-01419
in Executive Session on 11 August 2005, under the provisions of AFI 36-
2603:


      Ms. Marilyn M. Thomas, Panel Chair
      Ms. Sue A. Lumpkins, Member
      Mr. Gregory A. Parker, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Mar 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated. 26 Aug 05.
    Exhibit D.  Memorandum, AFPC/DPPP, dated 2 Jun 05.
    Exhibit E.  Letter, SAF/MIBR, dated 10 Jun 05.
    Exhibit F.  Memorandum, Applicant, dated 20 Jun 05.
    Exhibit G.  Memorandum, Applicant, dated 23 Jun 05,
                w/atchs.




                                   MARILYN M. THOMAS
                                   Panel Chair