RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02660
            INDEX CODE:  126.04

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED: YES


MANDATORY CASE COMPLETION DATE:  5 MAR 2008


___________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 proceedings of 17 May 05 be rescinded;  all  records
of proceedings be removed  from  his  master  personnel  files  and
officer selection records and direct  correction  of  reference  to
Article 15 proceedings and  markdown  to  his  officer  performance
report closing 30 Jun 05

___________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 proceedings were not only factually wrong, but  also
technically wrong; procedurally wrong; legally wrong; and  entirely
wrong and unjust.

Violation of Article 86; for allegations of Absence  without  Leave
(AWOL) on two occasions, were  nothing  more  that  unsubstantiated
testimony from his supervisor and commander.  He had been  released
to quarters by his supervisor; however, his  supervisor  must  have
forgotten.  Violation of Article 107; he allegedly gave  misleading
testimony to investigators during an interview.  He states  he  did
in fact give a factual statement and the documents seized from  his
residence, was a  first  draft  of  the  referral  report  and  the
interview records clearly show the agent’s misquoted  statement  in
the Record of Investigation.  Violation of  Article  133;  (Conduct
Unbecoming an Officer), applicant allegedly signed his supervisor’s
name on two award  nomination  packages  and  the  fabrication  and
submission of a substitute OPR for the period ending 30 Jun 02.

Because of these proceedings and the protracted investigations,  he
lost his  appointment  to  a  key  Air  Staff  position  in  Texas,
resulting in a loss of over $25000, which effectively increased his
family’s financial hardship.

In support of his appeal, applicant submitted a personal statement;
a copy of the Addendum to the Record of Proceedings, AFBCMR  Docket
Number BC-2005-01533; a copy of the contested OPR; a  copy  of  his
Freedom of Information  Act  (FOIA)  request,  several  letters  of
support and other supporting documentation.

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

___________________________________________________________________

STATEMENT OF FACTS:

Applicant is a lieutenant colonel serving as an Aerospace  Medicine
Physician.

On 17 May 05, nonjudicial punishment was imposed under Article  15,
UCMJ, for three specifications under Article 133  for  forging  the
signatures of his superiors on a fraudulent  OPR,  Officer  of  the
Quarter nomination, and Meritorious Service Medal  nomination.   He
also received punishment for one specification  under  Article  107
for making a false  statement  to  an  OSI  investigator,  and  two
specifications under Article 86  for  being  absent  without  leave
(AWOL).

Applicant's OPR profile for the last ten reporting periods follows:

      PERIOD ENDING    OVERALL EVALUATION

      30 Jun 97  Meet Standards (MS)
      30 Jun 98  Training Report
      30 Jun 99  TR
      30 Jun 00  MS
      30 Jun 01  MS
*     30 Jun 02  AF IMT 77
      30 Jun 03  MS
      30 Jun 04  MS
**    30 Jun 05  Referral
      30 Jun 06  MS

* OPR closing 30  Jun  02  was  removed  by  AFBCMR  Docket  Number
   BC-2005-01533.
** Contested report closing 30 Jun 05.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM  reviewed  this  application  and  recommended   denial.
Applicant received nonjudicial punishment in 2005 proceedings.  The
specification related to the forgeries  stem  from  incidents  that
took place between  June  and  September  2003.   A  year  earlier,
applicant received a referral OPR closing 30  Jun  02.   The  rater
signed it on  16  Jul  02,  the  additional  rater  on  7  Oct  02.
Applicant provided a rebuttal statement.  Its authenticity has  not
been challenged.

In Sep 03, applicant’s deputy commander, in reviewing his  file  in
preparing to staff a new OPR, noticed that the  additional  rater’s
signature on the previous OPR was dated 19 May 03,  more  than  ten
months after the rater’s signature.  It appeared to be a favorable,
non-referral OPR with a closeout  date  of  30  Jun  02.   It  bore
signatures of the appropriate  rater  and  additional  rater.   The
commander called the rater to inquire  about  the  past  delay  and
faxed a copy of the OPR to him.  Upon review, the rater stated  the
OPR was not the one he had signed.  The additional rater  also  had
signed the referral OPR,  not  the  favorable  one.   Investigation
revealed, however, that a copy of the favorable OPR was already  in
AFPC records by the time the referral OPR  arrived  through  normal
channels.

Further investigation revealed the applicant had  faxed  the  AFELM
commander a nomination in his name for Officer of the  Quarter  and
another for a Meritorious Service Medal.  Both bore the  signatures
of  the  applicant’s  supervisor.    Investigation   revealed   the
supervisor  did  not  sign  either  nomination.   Applicant  denied
forging the nominations.

Subsequent to the investigation but prior to receiving  punishment,
applicant requested the Board for Correction  of  Military  Records
void the referral OPR.  Although it is  not  clear  from  the  BCMR
records provided, it appears the Board was unaware  of  an  ongoing
investigation into the forgeries.  The first  request  was  denied,
but a second request,  which  contained  additional  statements  of
support, was granted on 16 Jun  06.   It  is  unclear  whether  the
request would have been granted had the Board  been  aware  of  the
ongoing investigation.  What is clear, however, had the forgery not
been discovered, there would have been two OPRs at AFPC.  The Board
action to void and remove the referral OPR would have left only the
forged OPR in the file.

JAJM indicates that nonjudicial punishment is authorized by Article
15, UCMJ, and governed by the Manual  for  Courts-Martial  and  Air
Force Instruction 51-202.   A  commander  considering  a  case  for
disposition under  Article  15  exercises  personal  discretion  in
evaluating the case, both as to whether nonjudicial  punishment  is
appropriate and, if so, as to the nature and amount of  punishment.
Unless a commander’s authority to  act  in  a  particular  case  is
properly withheld, that commander’s  discretion  is  unfettered  so
long as the commander acts within the limits and parameters of  the
commander’s legal authority.

In sum, nothing in the applicant’s request  suggests  an  error  or
injustice occurred.  The Article 15 was well within the commander’s
authority and there is no basis to grant the relief requested.

AFLOA/JAJM’s evaluation is at Exhibit C.

HQ AFPC/DPPPEP reviewed  the  case  file  and  recommended  denial,
stating, in part, applicant contends the nonjudicial punishment was
an  injustice  and  the  report  therefore  unjust.   According  to
AFLOA/JAJM, the applicant’s Article 15 punishment was accurate  and
the applicant failed to provide supporting evidence  to  prove  the
Article 15 was  unjust.   Based  on  their  findings,  the  OPR  is
accurate to document the Article 15 punishment  IAW  36-4206,  para
1.3.1, 3.7.27, and 3.9.1.2.2.

HQ AFPC/DPPPEP’s evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant requests a second opinion on the grounds the opinion from
AFLOA/JAJM is inaccurate,  biased,  and  legally  incompetent.   He
further explained the circumstances surrounding his  case  and  the
basis for his request for a second opinion.

Applicant’s complete response, with attachments, is at Exhibit F.

___________________________________________________________________

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.   The  applicant's
complete submission, including  applicant’s  response  to  the  Air
Force Legal Operations Agency evaluation, was  thoroughly  reviewed
and  his  contentions  were  duly   noted.    The   commander   had
discretionary authority  to  impose  nonjudicial  punishment  under
Article 15, UCMJ, when he concluded reliable  evidence  existed  to
indicate an offense was committed.  When offered  the  Article  15,
applicant  had  an  opportunity  to  establish  his  innocence   by
demanding trial by court-martial.  However, he chose not to  pursue
this avenue and his appeal  of  the  Article  15  was  subsequently
denied.  By electing to resolve the allegation in  the  nonjudicial
forum, the applicant placed the responsibility to decide whether he
had committed the offense with his commander.  Unless a commander’s
authority to act in a particular case is  properly  withheld,  that
commander’s discretion is unfettered so long as the commander  acts
within  the  limits  and  parameters  of  the   commander’s   legal
authority.   The  applicant  has  not  provided  any  evidence   to
sufficiently convince the  Board  that  the  commander  abused  his
discretionary authority in imposing the Article 15 action  or  that
the  subsequent  referral  OPR  was  contrary  to   the   governing
instruction.   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 AFBCMR Docket  Number
BC-2006-02660 in Executive Session  on  26  June  2007,  under  the
provisions of AFI 36-2603:

      Ms. Patricia J. Zarodkiewicz, Vice Chair
      Mr. Jeffery R. Shelton, Member
      Ms. Dee R. Reardon, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Aug 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLOA/JAJM, dated 14 Sep 06.
    Exhibit D.  Letter, HQ AFPC/DPPPEP, dated 8 Jan 07.
    Exhibit E.  Letter, SAF/MRBR, dated 12 Jan 07.
    Exhibit F.  Letter, Applicant, dated 5 Feb 07, w/atchs.




                                   PATRICIA J. ZARODKIEWICZ
                                   Vice Chair