RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01169
            INDEX NUMBER:  126.00; 111.00
      XXXXXXXXXX COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  6 Oct 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 18 Mar 04 be set aside.

The Enlisted Performance Report (EPR) rendered on him for  the  period
19 Mar 03 through 18 Mar 04 be declared  void  and  removed  from  his
records.

The Letter of Reprimand he received, dated 17 Feb 04 be declared  void
and removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The applicant makes his arguments in a  four-page  statement  with  13
attachments.

The evidence supporting the Article 15 imposed on him  on  18  Mar  04
contained numerous inconsistencies.  His  accuser  falsified  official
statements.  For instance, he was accused of taking a class just to be
around his accuser when he was able to provide evidence that showed he
needed to take the class  as  part  of  his  academic  pursuits.   The
applicant discusses his analysis of the evidence provided against  him
by his accuser.

The Article 15 he was given constituted a conflict of  interest  since
the  commander  gave  the  no-contact  order  and  also  decided   the
applicant’s fate under Article 15.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on  or  about  18  Jul  00  and  was
promoted up to  the  grade  of  senior  airman  (SrA).   According  to
documents provided by the applicant, he received a Letter of Reprimand
(LOR) on 17 Feb 04 for disobeying a lawful order.  On 10 Mar  04,  the
applicant was offered proceedings under Article 15 for  the  following
alleged offenses:

        a.  Violation of Article 92 of the Uniform  Code  of  Military
Justice (UCMJ), disobeying a lawful order.

        b.  Violation of Article 91  of  the  UCMJ,  disrespect  of  a
noncommissioned officer (NCO).

The applicant accepted proceedings under Article 15, consulted counsel
and submitted a written presentation.  On 18  Mar  04,  the  commander
determined the applicant had committed one or  more  of  the  offenses
alleged.  The commander imposed punishment consisting of reduction  to
the grade of airman first class (A1C), seven days extra  duty,  and  a
reprimand.  The applicant did not appeal.  The  applicant  received  a
referral enlisted performance report (EPR) closing 18 Mar 04  with  an
overall rating of “2” and markdowns  in  Section  III  to  the  lowest
block, “Evaluation of Performance,” in item 3, “How  well  does  ratee
comply with standards?,” and item 4, “How is  Ratee’s  conduct  on/off
duty?.”

A resume of the applicant EPRs received while on active duty follows:

      Closeout Date                     Overall Rating

    18 Mar 02                           5
    18 Mar 03                           5
   *18 Mar 04                           2

*  Contested referral EPR

On 16 Dec 04, the applicant was sentenced at a  General  court-martial
based on the following offenses with findings as indicated:

        a.  Found guilty of a specification in  violation  of  Article
121, stealing U.S. currency, military property of a value greater than
$500.00.

        b.  Found guilty  of  three  specifications  in  violation  of
Article 134, communicating a threat  and  using  another  individual’s
social  security  number  with  the  intent  to  commit  larceny,  and
accessing a computer in excess of  his  authorization  to  obtain  the
social security number of another airman.    Applicant was  found  not
guilty of the specification of communicating a  threat  by  placing  a
message in an airman’s cellular phone profile.

The applicant was sentenced to a  Bad-conduct  discharge,  confinement
for ten months, reduction to the grade of airman basic (E-1),  a  fine
of $750.00, and an additional 3 months confinement if the fine is  not
paid.

In Aug 05, the applicant was released from confinement in an appellate
leave status.  In  Oct  05  the  applicant  was  placed  in  pre-trial
confinement to await trial by court-martial.  In Dec 05, four  charges
with five specifications were preferred against  the  applicant  under
Articles 80, 89, 92, and 134 of the UCMJ.  On 3 Feb  06,  all  charges
and specifications were dismissed.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  recommends  denial  of  the  applicant’s   request.    The
applicant was  given  a  verbal  and  then  written  no-contact  order
applicable to a  former  girlfriend  who  alleged  the  applicant  was
harassing her.  After  acknowledging  his  understanding  of  the  no-
contact order, the applicant failed to obey the order.  On 10 Mar  04,
the applicant was offered nonjudicial punishment for two charges  with
two specifications  for  failure  to  obey  the  no-contact  order  in
violation of Article 92, Uniform Code of Military Justice (UCMJ),  and
one charge of disrespect in violation of Article 91, UCMJ.  On 12  Mar
04, after consulting defense counsel, the applicant waived  his  right
to demand trial by court-martial and accepted Article 15  proceedings.
He submitted a written presentation.  On 18  Mar  04,  his  commander,
after considering the evidence and applicant’s response to the Article
15 determined he had committed the offenses  alleged.   The  commander
imposed punishment consisting of reduction  to  the  grade  of  airman
first class and seven days of extra duty.  The  applicant  waived  his
right to appeal and on 19 Mar 04, a judge advocate examined the record
and determined the action to be legally sufficient.

The applicant claims factual innocence.  While acknowledging his guilt
of failing to obey the order, he denies he intentionally did so.   The
applicant incorporates into his request all of the evidence  that  was
previously before the  commander  and  provides  no  new  evidence  to
support his  assertions.   By  electing  to  resolve  the  allegations
against him  in  the  nonjudicial  forum,  the  applicant  placed  the
responsibility to decide whether he had committed the offense with his
commander.

The applicant contests the merits of the entire Article 15 action, but
fails to provide any  new  or  compelling  information  that  was  not
available to him at the time of the imposition of the Article 15.  The
applicant has failed to provide any evidence that the commander abused
his authority or discretion.

The complete evaluation is at Exhibit C.

AFPC/DPF  concurs  with  AFLSA/JAJM’s  determination   regarding   the
applicant’s request to remove the LOR issued to him.

The complete evaluation is at Exhibit D.

AFPC/DPPPE recommends denial of the applicant’s request to remove  the
EPR rendered on him for the period 19 Mar 03 through 18 Mar  04.   The
applicant failed to provide supporting documents to prove the EPR  was
written inaccurately.

The complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In an undated letter, applicant  requested  his  case  be  temporarily
withdrawn.  The AFBCMR approved his request on 21 Nov 05.  In a letter
dated 21 Apr 06, the applicant requests the AFBCMR  proceed  with  the
processing of his case.  The applicant points out in a document titled
“Special Note” key facts regarding parts of his  submission.   In  his
memorandum, the applicant advises that on     2  Feb  06,  a  military
judge dismissed charges preferred against  him  in  a  General  court-
martial.  He notes the following key points in his  summary  of  newly
discovered evidence:

        a.    That the airman he was accused of coming within 500 feet
and thereby violating a no contact order testified at  an  Article  32
hearing in Dec 05 that she was given a no contact order  at  the  same
time.

        b.    That an NCO who previously served in  his  squadron  was
contacted by e-mail and has made  statements  refuting  his  accuser’s
version of events and collaborating his.

The applicant requests the following six issues be resolved  based  on
the evidence provided in his submission:

        a.  (Issue I).  Whether giving one airman an  Article  15  for
coming within 500 feet of another airman who was given the same order,
but was not punished, constitutes a miscarriage of justice.

        b.  (Issue II).  Whether the commander abused  his  discretion
by not interviewing a witness in his squadron that  would  have  given
considerable weight to his accuser’s credibility.

        c.  (Issue III).  Did the commander err by determining that  a
violation of Article 92 had occurred?  Examiner’s note:  Article 92 is
failure to obey order or regulation?

        d.  (Issue IV).  Should the letter of reprimand  he  received,
dated 14 Feb 04 be removed from his records?

        e.  (Issue  V).   If  the  answer  to  any  of  the  above  is
affirmative, should the referral EPR he received be removed?

        f.  (Issue VI).  Was the referral EPR an  accurate  reflection
of his duty performance?

The applicant provides a discussion of each of the six  issues  above.
The remainder of his submission is divided into seven sections briefly
summarized below:

        a.  Paperwork (P.12).  This section contains the paperwork the
applicant has requested be removed from his records by the Board.  The
applicant discusses errors in these documents,  which  he  states  are
mostly typographical.   He  refers  the  Board  to  the  evidence  and
character sections of his submission for information  on  the  factual
errors.

        b.  Evidence (P.28).  The applicant references nine  items  of
evidence he states supports his request  for  relief  and  provides  a
discussion of them:

            1.  A  Personnel  Data  Sheet  (PDS)  that  shows  he  was
deployed during the period of the referral EPR (The applicant believes
the omission contributes to the report being erroneous).

            2.  A statement from his defense counsel on the  discovery
that his accuser had a no contact order at the same time.

             3.  An  e-mail  from  an  NCO  previously  in  his   unit
“debunking” his accuser’s statement.

            4.  His Article 15 response that uses  his  accuser’s  own
statement to “debunk” her statement.

            5.  His school transcripts.

            6.  Satellite photos and a floor plan.

            7.  A  statement  from  an  airman  to  show  his  accuser
attempted to get him in trouble again.

            8.  A rebuttal to the letter of reprimand and a  statement
by an airman that “debunks” the statement of the NCO who accused him.

            9.  Copies of previous EPRs to rebut  the  contentions  in
the referral EPR.

          c.  Character   Statements   (P.54).  Character   statements
presented at the applicant’s court-martial.

        d.  Request for  Investigation  (P.76).  A  request  from  the
applicant to the AFOSI requesting an investigation of his accuser  and
another airman.  According to the applicant, the airman  committed  an
act of larceny, the same offense he was court-martialed for.

        e.  U.S. v. Cossio II/Efforts  by  Defense  Counsel  (P.99).  
This section presents efforts on the part of the  applicant’s  counsel
to gather information important to the  applicant’s  case  during  his
court-martial and statements made  regarding  the  principals  in  the
court-martial.

        f.  Character  of  Accusers  (P.114).  This  section  contains
evidence to support allegation made  in  items  d  and  e  immediately
above.  Among the evidence provided are e-mails the  applicant  claims
shows dislike and prejudice toward him by his additional rater on  the
contested EPR and another senior NCO prior  to  the  allegations  made
against him by his accuser on the Article 15 offense, portions of  his
record of trial in which his accuser  states  the  misconduct  of  her
airman boyfriend and in which the airman states his own misconduct and
was never punished for.

        g.  Prisoner Abuse (P.170).  This section contains  statements
made by individuals the applicant was confined  with.   The  applicant
notes that the statements have nothing to do with  the  relief  he  is
requesting from the Board.

In addition to hard copies of  the  documents  summarized  above,  the
applicant also provided a  CD  containing  the  same  documents.   The
applicant’s complete submission, with attachments, is at Exhibit I.

_________________________________________________________________

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 opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the primary basis for our conclusion that the applicant has  not  been
the victim of an error or injustice.  We note the applicant’s  concern
that information regarding his court-martials  may  bias  the  Board’s
consideration  of  his  requests.   However,  we  have   limited   our
consideration to the facts presented regarding the contested EPR,  the
Article 15, and the letter of reprimand.  As noted in  the  evaluation
prepared by AFLSA/JAJM, the evidence presented  by  the  applicant  to
this Board  was  available  to  his  commander  for  consideration  in
reaching his decisions.  In our view, the applicant’s presentation  to
this Board consists primarily of his personal views of the  events  in
question and individuals involved.  He has  not  provided  independent
corroboration of most of his  allegations  and  we  do  not  find  the
actions of his commander in this case to be  arbitrary  or  capricious
Therefore, in the absence of evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

_________________________________________________________________

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-2005-
01169 in Executive Session on 18 May 06, under the provisions  of  AFI
36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Gregory A. Parker, Member
      Ms. Leloy W. Cottrell, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Apr 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 3 Aug 05.
    Exhibit D.  memorandum, AFPC/DPF, undated.
    Exhibit E.  Memorandum, AFPC/DPPPE, dated 11 Oct 05.
    Exhibit F.  Letter, SAF/MRBR, dated 21 Oct 05.
    Exhibit G.  Memorandum, Applicant, undated.
    Exhibit H.  Letter, AFBCMR, dated 21 Nov 05.
    Exhibit I.  Memorandum, Applicant, undated, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair