RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02600
            INDEX CODE:  126.03
            COUNSEL:  NOT INDICATED
            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The Record of Nonjudicial Punishment, imposed on 4 May 07, pursuant to
Article 15, Uniformed Code of Military Justice (UCMJ),  be  set  aside
and  his  rank  be  restored  to  senior  master  sergeant.   In   the
alternative, the  punishment  be  mitigated  to  forfeitures  and  the
Article 15 not be filed in his Senior NCO Selection Record.

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APPLICANT CONTENDS THAT:

His commander abused his discretion in imposing the  Article  15.  His
right to counsel was affected, by the denial of his  reasonable  delay
request, which prevented his lawyer from  having  sufficient  time  to
prepare his case.  Appellate authorities ignored established case laws
pertaining to indecent language and illegal orders.

In support of his request, applicant provided a copy  of  the  Article
15,  a  memorandum  concerning  a  Military  Equal  Opportunity  (MEO)
complaint filed  against  him,  a  personal  statement,  an  Appellate
Authority Memorandum, a Financial Statement, a copy of an Appeal  from
his attorney to the  Appellate  Authority,  a  Request  for  Delay  in
Response to the Article 15 Memorandum, 19 Character Statements, a copy
of a Congressional Inquiry, and witness statements.

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

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STATEMENT OF FACTS:

The applicant contracted his initial enlistment  in  the  Regular  Air
Force on 3 May  82,  for  a  four-year  term,  and  was  progressively
promoted to the grade of senior master sergeant (E-8).

On 18 Apr 07, the commander notified the applicant of  his  intent  to
initiate nonjudicial punishment pursuant to Article 15  of  the  UCMJ.
The commander cited the bases for this action were  one  specification
of failure to obey a lawful order  and  two  counts  of  communicating
indecent language.

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 4 May 07, his commander found  that  he  committed  the
alleged specifications.  On 11 May 07, he acknowledged receipt of  the
punishment, his right to appeal, and that a copy  of  the  Article  15
would be filed in his Senior Noncommissioned Officer  (NCO)  Selection
Record.

On 16 May 07, the  applicant  appealed  the  action  to  the  imposing
commander and to the appeal authority.  His appeals were denied.  On 6
Jun 07, the Article 15 action was reviewed for legal  sufficiency  and
found to be legally sufficient.

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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 an error or injustice.  The applicant has not
presented evidence of meaningful  error  or  clear  injustice  in  the
Article 15 process, and there is no evidence in the  record  that  the
commander abused his discretion.

The applicant chose to waive his right to contest  the  charges  at  a
court-martial at which the charges would have had to have been  proven
beyond a reasonable doubt in a court of law.   Instead,  he  chose  to
accept the Article 15 forum and his commander’s judgment.  As a member
accepting nonjudicial punishment proceedings, the  applicant  had  the
right to have a hearing with the commander, to request that  witnesses
appear and testify, and to present evidence.   The  applicant  availed
himself  of  all  his  rights.   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.   He  exercised
his appeal rights, and he presents no evidence that he was denied  due
process or that the proceedings were unfair.  The punishment  involved
was well within the commander’s  authority  to  impose  and  does  not
appear to be disproportionate or unjust given the applicant’s  serious
failure to meet the standards of conduct expected of a senior NCO.

The AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSOE defers to the recommendation of  AFLOA/JAJM  regarding  the
applicant’s request for setting aside the Article 15  and  restoration
of rank to the grade of senior master sergeant.

The AFPC/DPSOE complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
28 Sep 07 and 12 Oct 07, for review and comment within 30 days.  As of
this date, this office has not received a response.

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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.  In the absence  of  evidence  to
the contrary, we find no compelling basis to  recommend  granting  the
relief sought in this application.

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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-
2007-02600 in Executive Session on 21 Feb 08, under the provisions  of
AFI 36-2603:

                 Mr. Wayne R. Gracie, Panel Chair
                 Mrs. Lea Gallogly, Member
                 Mr. Joseph D. Yount, Member

The following documentary evidence was considered for AFBCMR Docket BC-
2007-02600:

    Exhibit A.  DD Form 149, dated 2 Aug 07, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 12 Sep 07.
    Exhibit D.  Letter, AFPC/DPSOE, dated 28 Sep 07.
    Exhibit E.  Letters, SAF/MRBR, dated 12 Oct 07.




                                   WAYNE R. GRACIE
                                   Panel Chair