RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-03400
            INDEX CODE:  111.05

                 COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  6 MAY 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment (NJP) imposed under Article 15 on 22 March  2005,
be removed from his records and his rank be restored to the grade  of  chief
master sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He believes the punishment was unfair and unjust.  He is the first and  only
person to be given an Article 15 for hugging someone.  Hugging a  non-family
member is not a violation of an Air Force regulation  and  not  one  of  the
Articles in the  Uniform  Code  of  Military  Justice  (UCMJ).   Until  this
incident, he had not been disciplined his entire military career.

In support of his request, the applicant provided a  personal  statement,  a
copy of his DD Form 214, Certificate of Release  or  Discharge  from  Active
Duty, a copy of his Promotion and Retirement Orders, a Biography,  AF  Forms
932,  Performance  Feedback  Worksheet,   Commentary   from   Col   _______,
Statements  from  staff  members  of  the  11th  Medical  Group,   character
statements, and copies of his  AF  Form  911,  Senior  Enlisted  Performance
Reports from 1992 through 2004.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air  Force  in  the  grade  of  airman
basic on 12 October 1976, for a term  of  4  years.   He  was  progressively
promoted to the grade of chief master sergeant.  In December  2004,  he  was
notified by his chain  of  command  that  he  was  under  investigation  for
allegedly committing sexual harassment.  Specifically,  he  was  accused  of
touching the breast and attempting to  kiss  the  lips  of  a  female  staff
sergeant  on  or  about  3  November  2004;  massaging  the  shoulders   and
attempting to kiss the lips of a female technical sergeant on  or  about  25
April 2004, and on or about 30 April 2004; touching the hip  and  attempting
to kiss the lips of a female senior airman between  on  or  about  1  August
2004 and on or about 31 August 2004; and putting his arm  around  the  waist
and attempting to kiss the lips of a female airman first class on  or  about
1 August 2004 and on or about 31 August 2004; and  putting  his  arm  around
the waist and attempting to kiss the lips of a female airman first class  on
or about 1 August 2004 and on or about 31 August 2004, all with  the  intent
to gratify his sexual desires.  He was also  accused  of  allegedly  telling
the airman first class on or about 1 August 2004 to  “stop  looking  at  his
dick,” or words to that effect.  On 14 March  2005,  after  consulting  with
counsel he waived his right to demand trial by  court-martial  and  accepted
nonjudicial punishment proceedings.  He requested  a  personal  presentation
before his commander and submitted written statements  in  his  own  behalf.
The commander found him guilty of the offenses alleged.  He was  reprimanded
and reduced in rank from chief master sergeant to  senior  master  sergeant.
He elected no to pursue his right to appeal the  Article  15.   After  being
reviewed for legal sufficiency at  two  separate  levels  and  found  to  be
legally sufficient, the Article 15 became final on 28 March 2005.

He was reduced from the grade of chief  master  sergeant  to  senior  master
sergeant on 22 March 2005.  He retired on 1 May 2005 in the grade of  senior
master sergeant.  He served a total of  28 years,  6  months,  and  19  days
active duty service.

The Secretary of the Air Force Personnel Council (SAFPC) conducted a  review
of his records for a  grade  determination  and  opined  he  did  not  serve
satisfactorily in the highest grade held of chief  master  sergeant.   SAFPC
also determined that he will not be advanced to that grade  on  the  retired
list upon completion of the required service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states in  part,  a  commander’s  action
should only be set aside when the evidence demonstrates an error or a  clear
injustice.  He has not presented evidence of a  meaningful  error  or  clear
injustice in the Article 15 process.

Nonjudicial punishment is permitted by Article 15, UCMJ (10  USC  815),  and
governed by the Manual for Courts-Martial (Part V)  and  AFI  51-202.   This
procedure permits commanders to dispose of certain  offenses  without  trial
by `court-martial unless the service member  objects.   The  service  member
first must be notified by  the  commander  of  the  nature  of  the  charged
offense, the supporting evidence, and of the commander’s  intent  to  impose
nonjudicial punishment.  The service member may then consult with a  defense
counsel to determine whether to  accept  nonjudicial  punishment  or  demand
trial by court-martial.  Accepting the proceedings is  simply  a  choice  of
forum (service members have the  right  to  demand  trial  by  court-martial
instead); it is not an admission of  guilt.   By  electing  to  resolve  the
allegations  in  the   nonjudicial   forum,   the   applicant   placed   the
responsibility of determining his guilt with his commander.

Although he provides numerous character reference letters attesting  to  his
good  character,  he  fails  to  provide  any  evidence   to   support   his
allegations.  Moreover, the applicant provides  absolutely  no  evidence  of
error or injustice during the Article 15 process.   As  a  member  accepting
nonjudicial punishment proceedings, the applicant had the right  to  have  a
hearing with the commander, to have a spokesman at the hearing,  to  request
that witnesses appear and testify, and  to  present  evidence.   He  availed
himself of all his rights.  After his commander found by a preponderance  of
the evidence that he committed the offense alleged,  he  had  the  right  to
contest the determination or the severity of the punishment by appealing  to
the  next  higher  commander.   The  appeal  authority  may  set  aside  the
punishment, decrease its severity, or deny the appeal.  With the  advice  of
counsel the applicant elected to  not  appeal  the  action.   The  applicant
presents no evidence that he was denied due process or that the  proceedings
were unfair.

He should not prevail here absent  clear  error  or  injustice.   Commanders
considering nonjudicial  punishment  are  to  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.  His commander, having applied  that
standard  to  the  individual  circumstances  of   the   applicant’s   case,
determined that Article 15 action  was  warranted.   The  commander  had  to
weigh all the evidence before him to  make  that  decision.   He  ultimately
resolved the issue of the alleged misconduct against the  applicant.   There
is no evidence in the record that the commander abused his discretion.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB recommends denial and determined  there  were  no  legal  errors
requiring corrective action regarding  the  nonjudicial  punishment.   DPPWB
defers to the recommendation of JAJM regarding the Article 15

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  the  applicant  on  19
January 2007, for review and comment within 30 days.  As of  this  date,  no
response has been received by this office.

_________________________________________________________________

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.  The  applicant’s  complete  submission  was  thoroughly
reviewed and his contentions were duly noted.  However, we did not find  his
assertions nor  the  documentation  submitted  in  support  of  his  appeal,
sufficiently persuasive to warrant  corrective  action.   After  a  thorough
review of the facts and circumstances of this  case,  we  find  no  evidence
which would lead us to believe that the information used as a basis for  the
Article 15 dated 22 March 2005, was erroneous, or that there  was  an  abuse
of discretionary authority.  Furthermore, no  evidence  has  been  presented
which convinces us  that  the  applicant  was  the  victim  of  differential
treatment.  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 an 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-
03400 in Executive Session on 22 March 2007 and on 2 April  2007  under  the
provisions of AFI 36-2603:

                 Mr. Michael J. Maglio, Panel Chair
                 Ms. Mary C. Puckett, Member
                 Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 31 Oct 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLOA/JAJM, dated 15 Dec 06.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 3 Jan 07.
   Exhibit E.  Letter, SAF/MRBR, dated 19 Jan 07.
   Exhibit F.  Letter, US Senate, dated 19 Mar 07, w/atch.





                                   MICHAEL J. MAGLIO
                                   Panel Chair