RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01252
            INDEX CODE:  126.03
            COUNSEL:  NONE
            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  25 SEP 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15, Record of Nonjudicial Punishment (NJP), imposed on  16
Feb 07, be set aside and his punishment be rescinded.

He be promoted to the rank of chief master sergeant (E-9),  reinstated
as a First Sergeant, and reassigned to Langley AFB.

His name be removed from the Air Force’s Force Shaping List.

The previously denied Meritorious Service Medal (MSM), First Oak  Leaf
Cluster (w/1 OLC) be approved.

A letter  be  placed  in  his  Unit  Personnel  Records  Group  (UPRG)
explaining that he was unable  to  complete  his  duties  due  to  the
allegations against him and a letter explaining the final  outcome  of
these matters.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The evidence used by his commander for the Article 15 was inadmissible
because the evidence was obtained as a result of  an  illegal  search.
He was treated unfairly and this  case  should  have  been  dismissed;
therefore, the evidence should be suppressed and the action set aside.

In support of his request, applicant provided a personal statement, AF
Form 3070, Record of Nonjudicial Punishment Proceedings, a copy of his
response and appeal to the Article 15, character statements, documents
from his  defense  counsel,  an  extract  of  AFI  33-119,  Air  Force
Messaging, a copy of his civilian attorney  contract,  promotion  non-
recommendation letters, a  citation  from  a  deployment  to  Iraq,  a
memorandum of investigation, phone records, an extract of AFI  36-213,
Withdrawal Procedures, copies of letters relating to withdrawal of his
special duty identifier, a letter  from  Life  Skills,  and  a  budget
statement.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted his initial enlistment  in  the  Regular  Air
Force on 6 Mar  84,  for  a  four-year  term,  and  was  progressively
promoted to the grade of senior master sergeant (E-8).

On 23 Jan 07, the commander notified the applicant of  his  intent  to
initiate non-judicial punishment pursuant to Article 15 of the Uniform
Code of Military Justice (UCMJ).  The commander cited  the  bases  for
this action were that he wrongfully  had  sexual  intercourse  with  a
woman not his wife; was willfully derelict in the performance  of  his
duties by using his government-issued blackberry cellular  device  and
government computer for  unauthorized  personal  use;  sent  offensive
material using his government email account; and made a false official
statement with regard to his use of the blackberry cellular device and
his government email account.

The applicant consulted with counsel, waived his right to demand trail
by court-martial, and accepted the Article 15.  He  submitted  written
statements in his own behalf and requested an  appearance  before  the
commander.  On 16 Feb 07, his commander found that he committed two of
the three alleged offenses.   Specifically,  his  commander  concluded
that nonjudicial punishment was appropriate for the adultery  and  the
willful dereliction of duty allegations, and withdrew  the  allegation
of making a false official statement.

The applicant’s punishment  consisted  of  a  reprimand,  a  suspended
reduction in rank to the grade of master sergeant, and  forfeiture  of
$2,170.00 pay per month for 2 months, with the amount over $892.00 per
month for 2 months suspended through 15 Aug 07.

On 1 Mar 07, the applicant appealed the action which was denied.

On 30 Mar 07, the applicant requested retirement,  effective  1 August
2007.

On  21  Jun  07,  AFPC/DPPPR  requested  the  applicant  withdraw  the
decoration  portion  of  his  request   until   he   first   exhausted
administrative channels for the decoration.  DPPPR also  informed  him
that once a decision had been  rendered  by  the  decoration  approval
authority and if he believes  an  injustice  existed,  he  could  then
resubmit a DD Form 149 with the approval authority’s final decision to
SAF/MRBR.



On 1 Aug 07, he was retired in the grade of senior master sergeant.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial and states,  in  part,  that  Article  15
punishment should be set aside only when the evidence presented in the
application  demonstrates  a  material  error   or   injustice.    The
applicant’s  entire  argument  is  not  relevant  to  the  nonjudicial
punishment  forum,  and  he  fails  to  demonstrate  either  error  or
injustice.

The applicant admits his culpability and apologizes for his actions in
his responses.  He contends the offenses were discovered through, what
he believes, was an illegal search of his government email.

He states that his former assistant first sergeant entered his  office
and noticed an open email on his computer which  reflected  negatively
on him.  Out of curiosity the former assistant  examined  his  emails.
This occurred because the  applicant  left  his  access  card  in  the
computer and unlocked, which he should  not  have  done.   The  former
assistant was then able to load applicant’s PST  file  to  a  portable
hard drive, to see what other emails applicant had written about  him.
While he was looking through the emails,  he  found  evidence  of  the
offenses and turned this evidence over to his squadron commander.

The applicant contends that the information  gathered  by  his  former
assistant was an illegal search.   He  cites  M.R.E.  311  and  United
States v.  Long,  61  MJ  539  (NMCCA  2005),  which  were  both  also
referenced in a brief from his area defense counsel.  However, whether
the search was illegal, or  the  evidence  might  have  possibly  been
suppressed  in  court  is  irrelevant.   Under  the  advice   of   two
experienced defense  counsels,  the  applicant  chose  to  accept  the
Article 15, knowing full well, the extent of the evidence against  him
and the advantages and limitations of the Article 15 process.

According to the Manual  for  Court-Martial,  the  military  rules  of
evidence do not apply to  Article  15  proceedings,  other  than  with
respect to privileges.  Thus, his claim that the Article 15 should  be
set aside due to an illegal search, is without merit.  He  could  have
demanded trial by court-martial in lieu of the Article 15,  where  the
rules of evidence are fully applicable and  he  could  have  made  the
appropriate motion to suppress evidence.  He chose not to, most likely
to avoid the risk of a criminal conviction  and  possibly  confinement
time and a punitive discharge.



In his application to the Board,  he  states  that,  in  his  lawyers’
opinion, a trial would have likely resulted in a conviction.  He  also
states, he was willing to take responsibility for his conduct  and  he
did not want to further burden his unit with this matter.  There is no
evidence of clear error or injustice in this  case,  and  no  evidence
that any commander abused his discretionary authority or  acted  in  a
capricious matter [sic].  The punishment was well  below  the  maximum
authorized, and well within the discretion of the commander.

The AFLOA/JAJM complete evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial and states, in part, that Force  Shaping
policy specified that those members who were denied reenlistment would
be separated on 31 Jul 07, unless the commander took definitive action
to retain the member.

Although the applicant previously had a date of  separation  (DOS)  of
15 Jun 09, since he was under a suspended Article 15  punishment,  his
DOS was rolled-back to 31 Jul 07.  Under  the  DOS  Rollback  Program,
retirement eligible airmen are afforded  the  opportunity  to  request
retirement for 1 Aug  07  or  earlier.   If  he  had  not  voluntarily
requested a retirement date of 1 Aug 07, he would have been  separated
(Title 10, U.S.C. 8914 states that an  enlisted  member  must  request
retirement).

Under the  enlisted  Force  Shaping  policy,  if  a  situation  arises
requiring the applicant’s DOS to revert back to  15 Jun  09,  the  Air
Force  Personnel  Center  (AFPC)  has  the  authority  to  change  the
applicant’s DOS from 31 Jul 07 to 15 Jun 09.  Commanders, the Military
Personnel Flight, and Staff Judge Advocates  (SJA)  are  charged  with
working together  to  ensure  airmen  are  discharged,  separated,  or
retired under the correct provisions and with the appropriate  service
characterization.

The AFPC/DPPRRP evaluation, with attachment, is at Exhibit D.

AFPC/DPPPWB recommends denial of the applicant’s request for promotion
to chief master sergeant, a grade to which he has never been selected.
 DPPPWB defers to  the  recommendation  of  AFLOA/JAJM  regarding  the
applicant’s request for setting aside the Article 15.

DPPPWB states in part, that based on  the  applicant’s  date  of  rank
(DOR) to senior master sergeant of 1 Dec 04, the first time  he  would
have normally been considered for promotion to chief  master  sergeant
was  cycle  06E9.   However,  on  19 and 24 Oct  06,   his   commander
nonrecommended him for  promotion,  based  on  his  engagement  in  an
adulterous relationship and dereliction of duties.

Since the promotion eligibility cutoff date for cycle 07E9 was  31 Jul
07, he was ineligible for  promotion  consideration  to  chief  master
sergeant for this cycle based on his suspended  reduction  through  15
Aug 07 (per AFI 36-2502, Table 1.1, Rule 19).

The AFPC/DPPPWB complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
3 Aug 07, for review and comment within 30 days.   As  of  this  date,
this office has not received a response.

_________________________________________________________________

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 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  was
erroneous, or  that  it  was  obtained  improperly.   Furthermore,  no
evidence has been presented to  convince  us  the  applicant  was  the
victim of differential treatment or that there was  an  abuse  of  the
commander’s discretionary authority.  Therefore,  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.  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  issue(s)   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-
2007-01252 in Executive  Session  on  27  September  2007,  under  the
provisions of AFI 36-2603:

                 Mr. Michael J. Maglio, Panel Chair
                 Ms. Karen A. Holloman, Member
                 Mr. Wallace F. Beard Jr., Member

The following documentary evidence was considered for AFBCMR Docket BC-
2007-01252:

    Exhibit A.  DD Form 149, w/atchs, dated 9 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 1 Jun 07.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 15 Jun 07, w/atch.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 31 Jul 07.
    Exhibit F.  Letter, SAF/MRBR, dated 3 Aug 07.




                                   MICHAEL J. MAGLIO
                                   Panel Chair