RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00407
            INDEX CODE:  126.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  13 AUG 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The punishment imposed upon  him  under  Article  15,  Uniform  Code  of
Military  Justice  (UCMJ),  dated  24  February  2004  and  the  Unfavorable
Information File (UIF) be set aside.

2.  The Article 15 action  dated  24  February  2004  be  removed  from  the
National Crime Information Center (NCIC).

_________________________________________________________________

APPLICANT CONTENDS THAT:

There was no evidence ever  presented  to  prove  he  was  derelict  in  his
duties.  The nonjudicial punishment  (NJP)  he  received  was  identical  to
another individual within his squadron.  He believes there  was  a  cut  and
paste error from  this  individual’s  AF  Form  3070  and  placed  onto  his
documentation by mistake.

In support of his request, the applicant provided a personal  statement  and
documents extracted from his military personnel records.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 10 February 1986, the applicant entered active duty in  the  Regular  Air
Force.  He was progressively promoted  to  the  grade  of  master  sergeant,
having assumed that grade effective and with a date of rank of 1 June 2003.

On 20 June 2004, the applicant was notified of  his  commander's  intent  to
impose NJP under Article 15 of the UCMJ for alleged violations  of  Articles
92 and 121 of the UCMJ.  Specifically, on or about 1 January 2003 and on  or
about 30 July 2003, he was derelict in the  performance  of  his  duties  in
that he willfully failed to ensure proper check out of  dorm  residents,  to
ensure dormitory  rooms  received  proper  maintenance,  to  keep  occupancy
records  accurate,  and  to  refrain  from  allowing  civilians  to   occupy
dormitory rooms, as it was his duty to do (Article 92) and that he  did,  on
or  about  1  July  2003  and  on  or  about  12  December  2003  wrongfully
appropriate three entertainment centers and two night stands,  the  property
of the United States Air Force (Article 121).  He was advised of his  rights
in this matter.  After considering all the matters presented, his  commander
determined that he committed the offenses alleged.  His  punishment  imposed
consisted of  a  reduction  in  grade  from  master  sergeant  to  technical
sergeant with a new date of rank of 24 February 2004 and  a  reprimand.   On
29 March 2004, the appellate authority granted  the  applicant’s  appeal  in
part suspending the reduction to the grade  of  technical  sergeant  through
28 September 2004.  On 28 February 2006, the  applicant  was  relieved  from
active duty and on 1 March 2006 retired in the  grade  of  master  sergeant.
He served 20 years and 21 days on active duty.

An AFOSI  Summary  of  Investigation  states  the  applicant  had  allegedly
utilized his rank and position  as  a  dorm  manager  to  facilitate  sexual
relations with numerous females from the first term airman center.   He  was
suspected of misusing government property and facilities to  conduct  sexual
activities.  Witnesses and victims disclosed  information  of  inappropriate
behavior by the applicant.  As dorm manager, he approached  numerous  female
airmen and made comments to the point  the  airman  were  uncomfortable  and
avoided contact with him.  He showed preferential  treatment  toward  female
dorm residents when moving off base and became negligent in the  up-keep  of
the dormitories within his  responsibility.   He  also  personally  accepted
cash from an out-processing dorm resident for damage done to his dorm  room.
 It was determined there  was  no  information  to  indicate  the  applicant
engaged in sexual relations with any female airmen.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends partial relief.  JAJM  states  the  final  NJP  action
contained two offenses, Article 92 and Article 121, UCMJ.  While JAJM  finds
no merit to the basis  for  an  Article  92  removal,  they  do  find  merit
regarding removal of the Article 121  allegation.   The  evidence  does  not
support this offense.  The same commander issued SSgt R---  an  AF  3070  on
the same date  as  the  applicant.   The  specification  regarding  wrongful
appropriation is identical.  Even the provisions marked  out  subsequent  to
acceptance and presentation are identical.

In response to a request from JAJM, the  current  20  FW/SJA  responded  via
email regarding the applicant’s NJP action.  She  states  that  despite  the
fact the property was found in the residence of SSgt R---, the  elements  of
the Article 121 offense of wrongful appropriation are met  if  the  property
appropriated was for “his own use or the use of any other person other  than
the owner.”  The SJA cites the legal review for the applicant’s NJP  appeal,
which apparently states that, “He permitted a coworker  to  take  Air  Force
property to the coworker’s house for personal  use.”   The  basis  for  this
statement is not given nor is a legal review  considered  evidence  in  this
case.  The SJA also states that SSgt R---‘s statement to the AFOSI dated  31
July 2003, admits the entertainment centers were transported by himself  and
Amn D--- using, “a borrowed trailer from the applicant.”   Amn  D---  states
in his AFOSI statement that he was “told by the applicant to help SSgt  R---
all day with moving furniture from the storage room to his house.”  Amn D---
‘s statement is contained within the applicant’s AFOSI report.

The AFOSI report regarding the applicant does not contain a  statement  from
SSgt R---.  SSgt R---‘s  statement  was  likely  contained  within  his  own
investigative report and reviewed by the same commander  as  the  applicant.
If it was considered by the commander in issuance of  the  applicant’s  NJP,
due process requires the  applicant  have  the  opportunity  to  review  the
statement.  There is no evidence showing the applicant ever received SSgt R-
--‘s AFOSI statement.  The only evidence submitted as part of the  NJP  file
is the applicant’s AFOSI report.

The report does contain Amn D---‘s statement; however, there is no  specific
mention of entertainment centers or nightstands.  Amn  D---‘s  statement  is
insufficient evidence to support the allegation of  wrongful  appropriation.
JAJM respectfully disagrees with 20 FW/SJA  that  the  two  individuals  can
both stand guilty of wrongful appropriation of the same property  under  the
evidence provided in this particular case.  If the applicant  were  involved
in the transfer of property by supplying  his  trailer  to  SSgt  R--,  JAJM
believes such an overt act amounts to conspiracy to commit  the  offense  of
wrongful appropriation under Article 81, UCMJ,  not  wrongful  appropriation
under Article 121.  The evidence provided  does  not  support  the  elements
that the applicant committed the offense of wrongful appropriation.

The JAJM’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and states  there  is  no  mention  of
statements from two credible witnesses that were the final authority on  all
dorm rooms.  These individuals were the most senior leadership personnel  in
the chain of command with first hand knowledge  of  the  dorms  day  to  day
operations   and   were   not   interviewed   concerning    their    overall
responsibilities  of  managing  the  dorms  and  dorm  managers.   The   two
individuals rated him a five on his EPRs.   This  directly  contradicts  the
Shaw AFB Legal Office’s allegation that  he  was  derelict  in  his  duties.
Further, the legal office and AFOSI could  not  charge  him  with  receiving
sexual favors for allowing individuals to move  off  base;  therefore,  they
had to find something criminal against him to  not  bring  embarrassment  to
their offices.  When it was determined he had not received sexual favors  by
allowing female individuals to move off base, a witch hunt then  took  place
in an attempt to justify the  investigation  and  to  make  amends  for  the
erroneous information  initially  up-channeled  to  the  senior  leadership,
specifically erroneous information supplied by a former disgruntled airman.

In regard to the NCIC, he was never convicted in a court as is suggested  by
the erroneous information placed into the NCIC system.   An  Article  15  is
not an admission of guilt, but a forum he was entitled to use to  fight  the
accusations alleged.  By  placing  this  NJP  matter  into  the  NCIC  is  a
violation of the privacy act of 1974.

Applicant’s complete response, with attachments, 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.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice that  would  warrant  corrective  action.
The applicant requests that his nonjudicial punishment be removed  from  his
records.  It appears that the Article 15 punishment was  rendered  in  part,
based upon alleged misconduct arising from his duties as dormitory  manager.
 It has been subsequently determined that part of  the  Article  92 and  121
under the NJP had been removed due to insufficient evidence.  The Air  Force
has recommended that the Article 121, wrongful  appropriation  specification
from the NJP be set aside and the remaining charge  -  Article  92,  willful
dereliction of  duty  remain  intact.   However,  we  believe  that  due  to
numerous errors regarding the  NJP  and  having  seen  no  evidence  in  the
applicant’s record or AFOSI report of Investigation to support the  charges,
we believe the entire Article 15 action should be removed from his  records.
 Certainly we do not condone the alleged behavior  that  led  to  the  AFOSI
investigation and NJP.  However, we believe there is  some  doubt  regarding
the allegations against the applicant.  Therefore, we  believe  to  preclude
any possibility of an injustice  to  the  applicant,  any  doubt  should  be
resolved in favor of the applicant.  Accordingly, we recommend  his  records
be corrected to the extent indicated below.

4.    With regard to his request that the information entered into the  NCIC
database be removed, we are compelled to note that  this  Board’s  authority
is limited to the correction of Air Force records and  does  not  allow  for
correction to any civilian records.  However, we have been made  aware  that
this issue is being worked by  HQ AFOSI/XILI  on  an  administrative  basis.
Therefore, it is suggested that the applicant contact AFOSI  regarding  this
issue.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that  the  nonjudicial  punishment  under
the provision of Article 15, Uniform Code of Military Justice, initiated  on
20 January 2004 and imposed on 24 March 2004, be declared void and  expunged
from his records, and all rights, privileges and property of  which  he  may
have been deprived be restored.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2006-
00407 in Executive Session on 8 August 2006, under the provisions of AFI 36-
2603:

                 Ms. Charlene M. Bradley, Panel Chair
                 Mr. John E. Pettit, Member
                 Mr. James A. Wolffe, Member

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

   Exhibit A.  DD Form 149, dated 3 February 2006, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 29 March 2006.
   Exhibit D.  Letter, SAF/MRBR, dated 2 June 2006.
   Exhibit E.  Letter, Applicant, dated 20 June 2006, w/atchs.





                 CHARLENE M. BRADLEY
                 Panel Chair









AFBCMR BC-2006-00407





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 XXXXX, be corrected to  show  that  the  nonjudicial  punishment
under the provision  of  Article  15,  Uniform  Code  of  Military  Justice,
initiated on 20 January 2004 and imposed on 24 March 2004,  be,  and  hereby
is, declared void and expunged from his records, and all rights,  privileges
and property of which he may have been deprived be restored.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency