RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-01704
            INDEX CODE:  111.01
      XXXXXXX    COUNSEL:  NONE
            HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15 (nonjudicial punishment) be set aside and removed  from
his records.

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APPLICANT CONTENDS THAT:

The applicant's former group commander (GP/CC) provided a statement on
behalf of the  applicant  in  which  he  states  he  was  informed  of
potential gambling activities within the  unit.   The  GP/CC  verbally
reprimanded him and directed he cease  card  playing  activities  from
that point on.

On or about 12 April 2005, the WG/CC directed a  formal  investigation
that revealed the applicant was derelict in  the  performance  of  his
duties.  As a result, the GP/CC administered an Article 15.

The GP/CC states new evidence has surfaced  making  him  question  the
validity of the testimony and the accurateness of  the  punishment  he
imposed.  He now believes  the  punishment  he  administered  was  not
appropriate for the infraction.

In support of his request,  applicant  provided  statements  from  his
GP/CC, section chief and an eyewitness.

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

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently serving in the Air Force in the  grade
of TSgt having assumed that grade effective and with a  date  of  rank
(DOR) of 1 November 2004.

The applicant was offered  nonjudicial  punishment  on  25 April  2005
while  deployed  to  Afghanistan,  for  gambling  and  failing  to  be
available for expediter and fire guard duties.

On 28 April 2005, after consulting with counsel, he waived  his  right
to demand trial by court-martial and accepted nonjudicial  punishment.
He chose to make  a  personal  appearance  before  his  commander  and
submitted a written presentation.

On 30 April 2005, his  commander  determined  that  he  committed  the
alleged offenses and imposed punishment consisting of reduction to the
grade of staff sergeant (which  was  suspended  for  six  months)  and
forfeiture of $100 pay per month for two  months  (suspended  for  six
months).  He did not appeal and the nonjudicial punishment proceedings
were found legally sufficient.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM  states  actual  unlawful  command
influence (UCI) does not appear to be a factor in this case.  Apparent
UCI occurs when a reasonable member of the public, if aware of all the
facts, would have a loss of confidence in the military justice  system
and believes it to be unfair.  Although  the  WG/CC  never  explicitly
stated the result he expected.  The GP/CC perceived the WG/CC  did  in
fact expect certain results.  The GP/CC alleges when he questioned the
judge advocate who was advising him on the case,  the  judge  advocate
stated the WG/CC's concern was boarder  line  inappropriate,  but  was
done to  protect  him  from  allegations  of  favoritism.   The  GP/CC
mentions that both he and the applicant are  African  American  making
the disturbing implication that race may have played a factor  in  the
imposition of nonjudicial punishment.  Whether the  WG/CC  waded  into
the dark waters of apparent UCI is challenging to resolve.  The  GP/CC
perceived what he terms as  "undue  commander  pressure"  but  whether
these pressures actually existed is not entirely clear.  On  one  hand
the GP/CC states he  imposed  nonjudicial  punishment  to  punish  and
protect the applicant, but on the other hand felt this action was done
to  satisfy  the  commander.   Undoubtedly,  the  GP/CC  believes  the
applicant committed the offenses on the Article 15, but expressed  his
concerns  the  Article  15  has  affected   the   applicant’s   career
tremendously.  The applicant raises the specter of UCI  that  warrants
attention and  consideration  by  the  Board.   However,  despite  the
imposing commander’s request relating to the  applicant's  nonjudicial
punishment, JAJM is unable to recommend the Board grant the request.

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  20
June 2008 for review and response.  As of this date, no  response  has
been received by this office.

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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 an error or injustice.  We find no evidence of  error
in this case and after thoroughly reviewing the documentation provided
in support of his appeal,  we  do  not  believe  he  has  suffered  an
injustice.  His contentions as well as those of his  former  commander
are duly noted; however, we do not find these assertions or his former
commander's  allusion  to  undue   command   influence,   sufficiently
persuasive to warrant removal of the  Article  15  from  his  records.
After our review of the evidence of record we find  no  evidence  that
would  lead  us  to  believe  that  the  Article  15  was   improperly
administered or that the applicant's substantial rights were  violated
during the processing  of  the  Article  15  action.   The  punishment
imposed was within legal limits, appropriate to the offense, and  does
not appear unjust or disproportionate.  Therefore, in the  absence  of
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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-
2008-01704 in Executive Session on 28 August 2008 under the provisions
of AFI 36-2603:

                 Mr.  Wallace F. Beard JR., Panel Chair
                 Ms.  Dee R. Reardon, Member
                 Ms.  Karen A. Holloman, Member


The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2008-01704 was considered:

    Exhibit A.  DD Form 149, dated 29 April 2008, w/atchs.
    Exhibit B.  Available Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 16 June 2008.
    Exhibit D.  Letter, SAF/MRBR, dated 20 June 2008.




                                   WALLACE F. BEARD JR
                                   Panel Chair