RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-01340
                                             INDEX CODE:  126.04
      XXXXXXXXXXXXX                     COUNSEL:  NONE

                                             HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  1 November 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

Action under Article 15, Uniform Code of Military  Justice  (UCMJ),  imposed
on 5 June 2003, be removed (set aside) due to fraudulent  evidence,  as  the
allegations brought against him and used to discredit him were false.

________________________________________________________________

APPLICANT CONTENDS THAT:

Information has been received  showing  that  the  accuser,  a  female  USAF
airman, admitted under oath while testifying at a court-martial  against  an
Army specialist, that she deceived investigators  concerning  the  facts  of
both his case and the case being tried.  It shows  that  she  lied  about  a
great many things in the years leading up to the trial.

Due to her false allegations, the second finding  in  the  Article 15  being
contested was given much more weight than it should have been given, and  he
was punished for another’s joke when he allegedly stated  to  a  female  co-
worker that he wanted to “get into her drawers.”  Another NCO actually  made
that comment in reference to his need to get office supplies from  her  desk
drawer and, when it was mentioned again, he participated in  the  joke,  but
never directed it against  the  female  co-worker.   When  an  investigation
ensued, the  off-hand  comment  made  by  another  was  attributed  to  him,
exaggerated in its significance, and he was punished for it.

In support of his appeal, he has provided copies of  a  personal  statement,
dated 22 April 2007, and a notarized DA Form 2823,  Sworn  Statement,  taken
from a United States Army Reservist, Major S----, dated 5 January 2007.

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

________________________________________________________________


STATEMENT OF FACTS:

Non-Judicial  Punishment  (NJP)  is  permitted  by  Article  15,  UCMJ,  and
governed by the Manual for Courts-Martial and Air Force Instruction  51-202.
 This procedure permits commanders to dispose of  certain  offenses  without
trial by court-martial unless  the  service  member  objects.   The  service
member must first be notified by the commander of the nature of the  charged
offense, the supporting evidence, and of the commander’s  intent  to  impose
NJP.  The service  member  may  then  consult  with  a  defense  counsel  to
determine whether to accept  the  NJP  or  demand  trial  by  court-martial.
Accepting the proceedings is simply a choice of  a  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  allegation  in  the  non-
judicial forum, a service member places the  responsibility  of  determining
his/her guilt with their commander.

Applicant was assigned to the 48th Security Forces Squadron, Lakenheath  AB,
UK, when he was offered NJP under Article 15, UCMJ, on 29 May 2003, for,  on
or about 13 February 2003, wrongfully requesting “meaningless  sex”  from  a
female  subordinate,  for,  on  or  about  3   February   2003,   wrongfully
communicating to a female  subordinate  that  he  wanted  to  get  into  her
drawers, and for, between on or about  1  January  2003,  and  on  or  about
30 January 2003, wrongfully striking a female Ministry of  Defense  employee
on the buttocks with a folder.  After consulting with his  defense  counsel,
he voluntarily waived  his  right  to  demand  trial  by  court-martial  and
accepted  NJP  proceedings  on  5  June  2003.   He  requested  a   personal
presentation before  the  imposing  commander  and  also  submitted  written
matters for the commander’s consideration.  After considering  the  evidence
as well as the applicant’s response, the commander found him guilty  of  the
first two allegations, but determined that NJP was not appropriate  for  the
third allegation and lined through that  allegation.   Punishment  consisted
of  a  suspended  reduction  in  grade  from  technical  sergeant  to  staff
sergeant, suspended until 4 December 2003, forfeiture of $1,141.00 pay,  and
a reprimand.

Two years after this incident, applicant was again given NJP for  committing
a similar offense at Thule AB, Greenland.  He was offered NJP on 13  October
2005, for allegedly maltreating  a  female  subordinate  by  inappropriately
touching her on her leg and on her  back,  and  for,  on  divers  occasions,
pursuing  an  unprofessional  relationship  with  a  female  subordinate  by
inviting her to his  room  for  tea,  calling  her  on  the  telephone,  and
introducing himself by first name.  After consulting with  an  attorney,  he
accepted NJP proceedings and submitted matters, both oral and  written,  for
the commander’s consideration.  The commander  evaluated  all  the  evidence
and found that he had committed the offenses.   Punishment  consisted  of  a
reduction in grade  from  master  sergeant  to  technical  sergeant,  and  a
reprimand.  Applicant appealed the action and his appeal was denied  as  the
NJP action was found  to  be  legally  sufficient  and  in  compliance  with
applicable regulations.  The applicant then appealed the NJP action  to  the
AFBCMR on 9 May 2006, AFBCMR Docket Number BC-2006-01715.  He  made  similar
contentions that are contained in his current appeal, alleging  the  use  of
“flawed evidence”  to  support  the  NJP  action  which  was  based  on  the
allegations of a female subordinate airman.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM  recommends  denial  and  no  relief  be  granted   because   the
application is untimely, and the applicant’s contentions are  without  merit
and provide no legal basis for relief.  A commander’s action should only  be
set aside when  the  evidence  demonstrates  an  error  or  injustice.   The
applicant has  not  presented  evidence  of  a  meaningful  error  or  clear
injustice in the Article 15 process, and there is no evidence in the  record
that the commander abused his discretion.

Since the NJP was imposed on 5 June 2003 and this application  is  dated  22
April 2007, the application is untimely.  Applicant presents no evidence  to
justify his untimely filing; rather, he states the Board should  excuse  his
untimeliness  because  “the  allegations  against  (him)  were   false   and
deliberately created as  a  result  of  a  psychological  condition.   As  a
result, the entire investigation against  (him)  and  subsequent  punishment
was based on  fabricated  testimony.”   Applicant  was  perfectly  aware  of
AFBCMR deadlines when he filed his previous application in 2006,  which  was
timely, and he  has  provided  absolutely  no  reason  or  justification  to
explain why he waited almost four  years  before  filing  this  application.
His contention that the allegations were false has nothing to  do  with  his
ability to file a two-page document within three years after the action  was
imposed, especially since he contends that the allegations were false.

Applicant does not provide any compelling evidence to support  his  request;
he simply implies that because  his  accuser  was  supposedly  caught  lying
about her extra-marital affairs in a completely  different  case,  she  must
have been lying when she accused him of the  allegations  that  resulted  in
this NJP.  Even if the purported affidavit from  Major  S---  is  completely
accurate, the fact that the complainant may have  hidden  her  extra-marital
affairs from investigators during a  rape  trial  does  not  in  any  manner
demonstrate that the applicant was not guilty of the conduct  for  which  he
was punished.  If anything, the fact that he was again punished for  similar
misconduct two years later against another  female  airman  at  a  different
assignment  corroborates   the   complainant’s   allegations   and   reveals
applicant’s modus operandi.

The  affidavit  from  Major  S----  in  no  way  clears  applicant  of   any
wrongdoing.  It does not  demonstrate  a  clear  error  in  the  Article  15
process, and it by no means proves any injustice in this case.  Major  S----
states how applicant admitted to making sexual comments to  the  complainant
in the past, thinking it was a joke, and the applicant argues  that  one  of
the comments for which he was punished  was  also  a  joke.   He  apparently
believes that making unwanted sexual comments to much lower  ranking  female
subordinates is a joke, and he has been caught and punished  twice  for  his
offenses.  He now comes to this Board suggesting that a grave injustice  has
occurred and the complainant lied when she  accused  him  of  his  offenses.
However, he presents no  evidence  showing  that  the  complainant  lied  to
investigators during the investigation into his misconduct, and he  presents
no evidence of clear error during the NJP process.  He presents no  evidence
of injustice, and provides absolutely no reason  to  grant  him  the  relief
requested.

As a member accepting NJP proceedings, 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 and, after his commander found by a  preponderance
of the evidence that he committed the offenses alleged, he had the right  to
contest the determination or the severity of the punishment by appealing  to
the next higher commander who may set aside  the  punishment,  decrease  its
severity,  or  deny  the  appeal.   Applicant  chose  not  to   appeal   the
commander’s decision, and he presents no evidence that  he  was  denied  due
process or that the proceedings were unfair.

Since the applicant does not contend that any  specific  actions  have  been
taken by reviewing authorities that require correction of  his  record,  any
decision regarding his NJP must be done as a matter of  clemency.   He  sets
forth no basis for clemency however, except  that  he  blames  everyone  but
himself.  By selecting the NJP forum and  waiving  his  right  to  trial  by
court-martial, where the government would have to prove the  allegations  in
a court of law beyond a reasonable doubt, he selected his commander  as  the
authority to weigh the evidence and decide  his  culpability,  if  any,  and
impose punishment if appropriate.  His commander determined that Article  15
action was warranted for two of the three alleged offenses, and there is  no
evidence in the record that the commander abused his discretion.

When evidence of an error or injustice is missing,  it  is  clear  that  the
BCMR process is not intended to simply second-guess the  appropriateness  of
the judgments of field commanders.  In the case of NJP,  Congress  (and  the
Secretary via AFI  51-202)  has  designated  only  two  officials  with  the
responsibility for determining the appropriateness of  an  otherwise  lawful
punishment:  the commander and the appeal authority.  So long  as  they  are
lawfully acting within the scope of authority granted  them  by  law,  their
judgment should  not  be  disturbed  just  because  others  might  disagree.
Commanders “on the scene” have first-hand  access  to  facts  and  a  unique
appreciation for the needs of morale and discipline in  their  command  that
even the best-intentioned higher headquarters cannot match.

The AFLOA/JAJM evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was forwarded to the applicant on 13  July
2007, for review and comment, within 30 days.  However, 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  or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinion and recommendation of  the  Air  Force  office  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.   He
has  presented  no  evidence  showing   that   the   complainant   lied   to
investigators during the  investigation  into  his  misconduct;  rather,  he
simply implies that because his accuser was supposedly  caught  lying  about
her extra-marital affairs in a completely  different  case,  she  must  have
been lying when she accused him of the allegations  that  resulted  in  this
NJP.  Even if the purported affidavit he furnished is  completely  accurate,
the fact that the complainant may  have  hidden  her  extra-marital  affairs
from investigators during a rape trial does not in  any  manner  demonstrate
that the applicant was not guilty of the conduct for which he was  punished.
 Additionally, he has presented no evidence of clear error  during  the  NJP
process, and, since he does not contend that any specific actions have  been
taken by reviewing authorities that require correction of  his  record,  any
decision regarding his NJP must be done as a  matter  of  clemency,  and  he
sets forth no basis for clemency.  By selecting the NJP  forum  and  waiving
his right to trial by court-martial, where  the  government  would  have  to
prove the allegations in a court  of  law  beyond  a  reasonable  doubt,  he
selected his commander as the authority to weigh  the  evidence  and  decide
his  culpability,  if  any,  and  impose  punishment  if  appropriate.   His
commander determined that Article 15 action was warranted  for  two  of  the
three alleged offenses, and there is no evidence  in  the  record  that  the
commander abused his discretion.  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-2007-01340
in Executive Session on 23 August 2007, under  the  provisions  of  AFI  36-
2603:

                       Ms. Kathleen F. Graham, Panel Chair
                       Mr. Wallace F. Beard, Jr., Member
                       Ms. Karen A. Holloman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 22 Jun 07.
    Exhibit D.  Letter, SAF/MRBR, dated 13 Jul 07.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair