RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03290
            INDEX CODE:  126.03
            COUNSEL:
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Record of  Nonjudicial  Punishment,  imposed  on  19  Dec  05,
pursuant to Article 15, Uniform Code of Military  Justice  (UCMJ),  be
removed from her record and her rank of master sergeant be restored.

2.  The decision to deny her advancement to the highest grade held  on
the Retired List at 30 years be overturned.

3.  She be granted any and all other relief the Board deems  necessary
in the interest of justice.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She did not commit the offense, and the evidence used to  support  the
guilty finding is false.  The evidence used to support  a  finding  of
not  guilty  was  submitted  and  inappropriately  dismissed  by   the
commander imposing the punishment.  Her husband used her email account
to send the email containing  controlled  test  material  without  her
knowledge.

In support of her request, applicant provided  a  statement  from  her
attorney, AF Form 3070, Record of Nonjudicial Punishment  Proceedings,
excerpts from  her  military  personnel  records,  a  copy  of  Rights
Advisement Letter from her husband, a Memorandum for Record, dated  10
Aug 05, and two character statements.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted her initial enlistment  in  the  Regular  Air
Force on 14 Sep 83,  for  a  four-year  term,  and  was  progressively
promoted to the grade of master sergeant (E-7).  On  28  Nov  05,  the
commander notified the applicant of her intent to initiate nonjudicial
punishment pursuant to Article 15 of the UCMJ.   The  commander  cited
the basis for this action was one specification of failure to  obey  a
lawful  general  regulation,   by   wrongfully   distributing   and/or
communicating the contents of  controlled  test  material  to  another
active duty master sergeant.

She consulted with counsel, waived her right to demand trial by court-
martial, accepted the Article 15 and submitted written  statements  in
her own behalf.  On 14 Dec 05, her commander found that she  committed
the  alleged  specification.   She   acknowledged   receipt   of   the
punishment, her right  to  appeal  and  the  senior  selection  record
notification on that same day.

She appealed the action, first to the imposing commander and  then  to
the appellate authority. Both appeals were denied. On 19 Jan  06,  the
Article 15 action was found legally sufficient.   On  31 Mar  06,  the
Secretary of the Air Force Personnel Counsel determined  she  did  not
serve honorably in the grade of master  sergeant  and  should  not  be
granted highest grade held at the 30 year point.

On 1 May 06, the applicant retired from the Air Force in the grade  of
technical sergeant.  She served a total of 22 years, 8 months  and  26
days active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial and states, in part, the applicant should
not prevail absent  clear  error  or  injustice.   The  materials  and
arguments  she  now  presents  to  the  Board  fall   far   short   of
demonstrating clear error  or  injustice.   At  best  these  materials
provide  limited,  general  indications  of  discussions  between  her
husband and his defense counsel, both of whom are absent third parties
about the email in question.

The applicant asserts that evidence to support a finding of not guilty
was submitted, but contends that it was inappropriately  dismissed  by
her commander.  She  does  not  claim  that  she  was  prevented  from
submitting evidence during the initial proceedings or on appeal,  only
that she feels the evidence she submitted  was  dismissed.   She  also
asserts that evidence used to support the findings of guilty is false,
but does not identify the evidence she believes is  false  or  explain
why she believes it is false.  Her commander was charged with weighing
all the evidence before  her,  and  ultimately  resolved  the  alleged
violations of Article 92 against the applicant.  There is no  evidence
that the commander’s decision was arbitrary or capricious, or that the
commander’s
determination of her culpability was based on anything other than  the
evidence. Her application does  not  provide  a  sufficient  basis  to
warrant setting aside the Article 15 action, and does not  demonstrate
an equitable basis for relief.  The applicant has provided no evidence
of a clear error or injustice related to  the  nonjudicial  punishment
action.

The AFLOA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The advisory opinion fails to  acknowledge  the  true  nature  of  the
situation and what  she  is  due.   Accepting  nonjudicial  punishment
proceedings, rather than demanding trial by court-martial, is a choice
of forum, not an admission of guilt.  Nonjudicial punishment does  not
constitute a criminal conviction, yet the advisory opinion ignores any
and all admissions made by individuals to assert her innocence in  the
matter.  It is the duty of the Board to see that justice is served  to
those who have suffered injustice.  The Board  has  more  than  enough
substantial reason to grant the relief requested.

Considering this matter took place through electronic mail,  the  only
individuals that can attest to the facts  of  this  matter  are  those
involved.  The only evidence involved is a single email that was  sent
from her account.  However, there is  substantial  evidence  that  has
been submitted to the Board that shows that it was not the  applicant,
but rather her husband, who distributed the email.  Such  evidence  is
sufficient to demonstrate a clear injustice in this matter.

Her record is impeccable,  with  exemplary  marks  of  an  outstanding
noncommissioned officer.  The Board should not  ignore  the  years  of
dedication that she has contributed to the Air Force.

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

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 probable error or injustice.  We find no evidence  of
error in this case and after thoroughly
reviewing the documentation applicant  submitted  in  support  of  her
appeal, we  do  not  believe  she  has  suffered  from  an  injustice.
Evidence has not been presented which would lead  us  to  believe  the
nonjudicial punishment was improper.  In cases of this nature, we  are
not inclined to disturb the judgments of commanding officers absent  a
strong showing of abuse of discretionary authority.  We have  no  such
showing here.  The evidence indicates that, during the  processing  of
this Article 15 action, the applicant was offered every right to which
she was entitled.  She was represented by counsel, waived her right to
demand trial by  court-martial,  and  submitted  written  matters  for
review by the  imposing  commander.   After  considering  the  matters
raised by  the  applicant,  the  commander  determined  that  she  had
committed  "one  or  more  of  the  offenses  alleged"   and   imposed
punishment.  The applicant has not provided any evidence  showing  the
imposing  commander  or   the   reviewing   authority   abused   their
discretionary authority; that her  substantial  rights  were  violated
during the processing of  the  Article  15  punishment;  or  that  the
punishment exceeded the maximum authorized by  the  UCMJ.   Therefore,
based on the available evidence of record, we find no basis upon which
to favorably consider 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-
2007-03290 in Executive Session on 26 Mar 08, under the provisions  of
AFI 36-2603:

                 Mr. Michael J. Maglio, Panel Chair
                 Mr. Richard K. Hartley, Member
                 Mr. Elwood C. Lewis III., Member

The following documentary evidence was considered for AFBCMR Docket BC-
2007-03290:

    Exhibit A.  DD Form 149, w/atchs, dated 22 Jan 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 30 Nov 07.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Dec 07.
    Exhibit E.  Counsel, dated 11 Jan 08.




                                   MICHAEL J. MAGLIO
                                   Panel Chair