RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01995
            INDEX CODE:  111.02
      XXXXXXX    COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: 29 DECEMBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Enlisted Performance Reports (EPR) rendered for  the  periods  26
April 1998 through 25 April 1999; 26 April 1999 through  25  April  2000;
and 26 April 2000 through 20 March 2001, be removed from his records.

2.  His two Article 15's be removed from his records.

3.  He be retained in the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The allegations brought against him were unsupported because the majority
of his section indicated he never used the alleged terms, and  those  who
brought the allegations against him did so because they either had hidden
agendas  or  otherwise  desired   his   job.    He   believes   all   the
accomplishments during his entire  career  have  been  disregarded.   The
discharge board should have never taken place.  Because he  received  two
Article 15's his commander felt compelled to initiate the discharge  even
though his commander thought he should  be  allowed  the  opportunity  to
overcome a recent Article 15 and reduction in rank.   His  discharge  was
initially cited as Misconduct - Minor Disciplinary Infractions.  However,
throughout the board proceedings it was the government's contention  that
his duty performance was unsatisfactory and he should be  discharged  for
unsatisfactory duty performance.  He was surprised his  duty  performance
was being quoted as  a  reason  for  his  discharge  considering  he  was
previously notified that the basis was misconduct.  The board proceedings
were inconsistent with the recommendations of the legal  office  and  his
commander.  The board's decision  to  discharge  him  for  unsatisfactory
performance did not afford him the opportunity to respond to that  basis.
Neither he nor his attorneys were put on notice of that  basis  resulting
in his discharge.  Ultimately, he believes he was not afforded a fair  or
full hearing because of this.

In support of his  request,  applicant  provided  a  personal  statement,
promotion scores,  copies  of  his  Degree  certificates  and  unofficial
transcripts.

His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 15 May 1985. He  is
a technical sergeant currently assigned at Kirtland AFB, NM. On 24  March
1999, his  commander  offered  him  nonjudicial  punishment  (NJP)  under
Article 15 for allegedly disrespecting two superior  officers  on  divers
occasions in violation of Article 89, Uniform Code  of  Military  Justice
(UCMJ).  Specifically, he allegedly referred to a female  captain  and  a
female major as "bitch" and "dumb cunt" or words to that  effect.   After
consulting with his defense attorney, he  accepted  NJP  proceedings  and
waived his right to demand trail by court martial.  He presented  matters
to the commander in writing and orally at a  personal  presentation.   On
27 May 1999, after having considered the evidence  and  defense  matters,
the commander concluded he committed the  offenses  alleged  and  imposed
punishment consisting of forfeiture of $250.00  pay  per  month  for  two
months and a reprimand.  He did not appeal the  punishment  and  the  NJP
action underwent legal review at two separate levels and was found to  be
legally sufficient.  He was subsequently offered NJP on 14 November 2000,
for one specification of dereliction of duty  for  failing  to  review  a
hospital dining facility checklist in  violation  of  Article  92,  UCMJ.
After consulting with counsel, he accepted NJP and provided a written and
oral presentation to his commander.  After considering the  evidence  and
the  applicant's  presentation  the  commander  concluded  the  applicant
committed the offense alleged and  imposed  punishment  consisting  of  a
reduction in grade to staff sergeant.  His appeal of the  punishment  was
denied 12 December 2000.  The NJP action underwent legal review  and  was
found to be legally sufficient.

He was recently selected for promotion (Cycle 07E7) to  master  sergeant,
with a promotion sequence number of 5806.

The following is a resume of his recent EPR profile:

            PERIOD ENDING    PROMOTION RECOMMENDATION

            15 October 2006       5
            15 October 2005       5
            15 October 2004       5
            15 October 2003       5
            20 March 2003         5
            20 March 2002         4
            20 March 2001         2(Contested Report)
            25 April 2000         3(Contested Report)
            25 April 1999         4(Contested Report)

________________________________________________________________
AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denial.  DPSIDEP states the supporting  documents
he provided only address a request for a review of  his  discharge  board
proceedings.  DPSIDEP finds the documentation confusing.   The  applicant
is asking to be retained in the Air Force and to have his EPR's remitted;
making  it  sound  as  though  he  is  currently  pending  administrative
discharge; however, he reenlisted on 13 August 2007 and has an assignment
to Lackland AFB with a reporting date of October 2007 and DPSIDEP sees no
recent derogatory information on  him  in  the  Military  Personnel  Data
System (MILPDS).  Therefore, DPSIDEP assumes he is referring  to  a  past
incident, which obviously did not take  place  because  he  is  still  on
active duty.   After reviewing the contested reports, DPSIDEP  determined
the report ending 25 April 1999 although not a perfect "firewall" report,
there was no derogatory information and the report was not,  nor  was  it
required to be referred to the applicant.   The  report  ending  25 April
2000, again, is not a perfect "firewall" report  and  although  it  is  a
borderline referral, it does not state the applicant is not  meeting  Air
Force standards.  Additionally, the applicant had one Article  15  during
this period and it was not included in the EPR.  The report was not,  nor
required to be referred to the applicant.  The  report  ending  20  March
2001, the applicant received his second Article 15 during this  reporting
period and it was mentioned in this EPR.  The report only referred to the
Article 15 that was received during this reporting period  and  therefore
was authorized.  The report  was  properly  referred  and  the  applicant
submitted a rebuttal that was reviewed and considered by the  appropriate
personnel.  DPSIDEP found no procedural errors or injustices  in  any  of
the contested reports.   DPSIDEP  contends  the  applicant  did  in  fact
receive two Articles 15.  It looks like the applicant was given  a  break
on the first Article 15 when it could have been, but was not mentioned in
the 25 April 2000 EPR.  However, after the second Article  15,  which  is
only reasonable, the rating chain determined to include the Article 15 in
the 20 March 2001 EPR.  DPSIDEP states the request is from six  to  eight
years after the fact, lacks evidence supporting his allegations and there
are no procedural errors found in the contested reports.

The complete DPSIDEP evaluation is at Exhibit C.

AFLOA/JAJM recommends denial.  JAJM states 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,
the commander's discretion is unfettered so long as  the  commander  acts
within the limits and parameters  of  the  commander's  legal  authority.
JAJM states the applicant presents no documentation to support his  broad
assertions.  The fact remains that two different commanders  imposed  NJP
for two different offenses.  When evidence of an error  or  injustice  is
missing, it is clear the BCMR process is not intended to  simply  second-
guess the appropriateness of the judgment of field  commanders.   In  the
case of  NJP,  Congress  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  to  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.
Applicant provided no evidence of error or injustice, nor does the record
reveal any.  Both  commanders  acted  well  within  the  scope  of  their
authority  and  discretion,  and  there  is  no  indication  that  either
commander acted in an arbitrary or capricious  manner.   Absent  a  clear
error or injustice, the applicant should  not  prevail.   Procedural  and
substantive requirements  having  been  met  in  both  NJP  actions,  the
application is untimely and the request for equitable relief  is  without
legal or factual justification.

The complete JAJM evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 31
August 2006 and 14 September 2007 for review and comment within 30  days.
As of this date, this office has received no 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 an error or injustice.   After  a  thorough  review  of  the
evidence of record and the applicant’s submission, we are  not  persuaded
the contested Article 15's should be voided.  His  contentions  are  duly
noted; however, we do not find these uncorroborated assertions, in and by
themselves, sufficiently persuasive to override the available evidence of
record. The Article 15's were properly administered and the applicant was
afforded all rights granted by statute and regulation.   The  nonjudicial
punishment was within legal limits, appropriate to the offense, and  does
not appear unjust or disproportionate.  Evidence has  not  been  provided
which would lead us to believe that the administrative actions  taken  by
his commanders were beyond their scope of authority or that  they  abused
their discretionary authority in taking those actions.  Further,  we  are
not persuaded by the evidence provided  that  the  contested  performance
reports are not a true  and  accurate  assessment  of  his  behavior  and
demonstrated potential during the specified  time  periods  or  that  the
comments contained in the reports  were  in  error  or  contrary  to  the
provisions of the governing instruction.  Therefore, in  the  absence  of
persuasive 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 BC-2007-01995 in  Executive
Session on 8 November 2007, under the provisions of AFI 36-2603:

                 Mr. Laurence M. Groner, Panel Chair
                 Mr. Reginald P. Howard, Member
                 Ms. Teri G. Spoutz, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 22 June 2007, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter AFLOA/JAJM, dated 17 August 2007, w/atchs.
   Exhibit D.  Letter AFPC/DPSIDEP, dated 13 September 2007.
   Exhibit E.  Letter, SAF/MRBR, dated 31 August 2007.





            LAURENCE M. GRONER
            Panel Chair