RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02083
		INDEX CODE:  126.04

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

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

His under other than honorable conditions (UOTHC) discharge be voided.

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APPLICANT CONTENDS THAT:

(DD Form 149 undtd - A1)

The nonjudicial punishment grossly violated the United States Code, Manual for Courts-Martial, and AFI 51-202.

He was denied administrative due process and his constitutional and Uniform Code of Military Justice (UCMJ) rights were violated.

He was not guilty of the allegations, and insufficient evidence existed to warrant nonjudicial punishment. 

The nonjudicial punishment was imposed by an officer other than his commanding officer and was not personally imposed.  

The nonjudicial punishment was legally insufficient and he was denied proper legal advice.

In support of his appeal, the applicant provided a personal brief.

Applicant's complete submission, with attachments, is at Exhibit A1.

(DD Form 149 dtd 4 Jan 03 - A2)

The Show Cause Authority failed to procure his involuntary administrative discharge in compliance with AFI 36-3206, AFI 36-3207, and other relevant statutes.  The resulting prejudice deprived him of his constitutional due process, equal protection, and fundamental fairness.  The injustices, individually and cumulatively demonstrate occurrences warranting the voiding of the discharge action.  These deviations and noncompliance with AFI 36-3206 or AFI 36-3207 overcomes the presumption of regularity in governmental affairs.

There was no evidence of any UCMJ misconduct on his part which warranted and substantiated involuntary discharge action.  The discharge action was based largely on unsubstantiated allegations which had been introduced on an erroneous Article 15 given to him immediately prior to the Show Cause order.  In contrast to the requirements of AFI 36-3206, the Show Cause Authority initiated these proceedings without valid proof of any misconduct by him.

The manner in which the proceedings were conducted was prejudicial to his rights.  He was in civil confinement and was not paid at any time during the entire period encompassing these discharge proceedings.  Accordingly, he was deprived of legitimate assistance of qualified counsel.  In addition, he was hospitalized prior to the date of the proposed Board of Inquiry (BOI), and was suffering from mental conditions rendering him unfit to participate in the proceedings whatsoever or defend himself.  Having signed the BOI waiver under duress and with diminished capacity, he contends that it was invalid.  This occurrence overcomes the presumption of regularity in governmental affairs.  The discharge should therefore be voided.

In support of his appeal, the applicant provided a personal brief.

Applicant's complete submission, with attachment, is at Exhibit A2.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant on 16 Jun 95 and voluntarily ordered to extended active duty.

Applicant's available military records indicate that on 27 Nov 00, he received an Article 15 for, between 23 Oct 98 and 16 Aug 00, wrongfully using the Air Force electronic mail (e-mail) systems for unofficial, unauthorized, uses by sending 294 non-mission related e-mails to a married woman which were of a highly personal nature, referencing lovemaking, expressing love, torment, love poems, and personal greeting cards, and receiving over 100 non-mission related e-mails; between 1 Nov 98 and 1 Apr 00, wrongfully having sexual intercourse with a married woman; and, between 25 Jul 00 and 18 Sep 00, willfully disobeying a lawful order to cease and desist all contact with a married woman.  He was ordered to forfeit $1500 for two months and reprimanded.

On 7 Dec 00, the applicant's commander initiated discharge action against the applicant for serious misconduct.  

On 26 Mar 01, the applicant submitted an unconditional waiver of his rights to an administrative discharge board proceeding.  

On 29 Mar 01, legal authority recommended acceptance of the waiver and a UOTHC discharge.

On 1 Jun 01, the Secretary of the Air Force approved the administrative board waiver and directed that the applicant be furnished a UOTHC discharge.

Applicant was discharged on 8 Jun 01 under the provisions of AFI 36-3207 (Misconduct) and was furnished a UOTHC discharge.  He was credited with 8 years, 11 months, 25 days of active service.

On 17 Jan 02, the Air Force Board for Correction of Military Records (AFBCMR) considered and granted the applicant's request for base pay and allowances that were not paid to him while he was on active duty and incarcerated in a civilian confinement facility awaiting trial (Exhibit C).

On 23 Jan 03, the Air Force Discharge Review Board considered and denied the applicant’s request for upgrade of his UOTHC discharge to honorable and change of the reason and authority for his discharge.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating that there was sufficient evidence for the commander to determine the offenses had been committed.  While different fact-finders may have come to a different conclusion, the commander's findings were neither arbitrary nor capricious and should not be disturbed.  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 nonjudicial punishment, Congress, the President and the Secretary via AFI 51-202, have 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.

In AFLSA/JAJM's view, a set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant was insufficient to warrant setting aside the Article 15 action, and did not demonstrate an equitable basis for relief.  He has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit D.

AFPC/DPPRS recommended denial indicating that based on the documentation in the file, they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation, and was within the discretion of the discharge authority.  In AFPC/DPPRS' view, the applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing, and did not provide any facts warranting an upgrade of his discharge.

A complete copy of the AFPC/DPPRS evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter, dated 9 Jun 03, the applicant indicated that he does not want the Board to consider any issues related to his discharge at this time.  He only wants the Board to consider the matter of his request to set aside the Article 15 and nothing further (Exhibit G).

Applicant provided a rebuttal response regarding the Article 15 issue.  He indicated that the arguments he has presented overwhelmingly prove that one or more of his rights were compromised and violated.  He was prejudiced in so many respects, and contends that the information presented in the AFLSA/JAJM advisory opinion was not proof.  He was not allowed to see the proof against him and asserts that it is because it did not exist.  He was denied the right to appear personally; he was in jail.  He prays that the Board will see the inherent prejudice of this fact and remove the Article 15.

Applicant's complete response, with attachments, is at Exhibit H.

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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 regarding the applicant's request that his nonjudicial punishment under Article 15 be set aside and removed from his records.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions or the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by AFLSA/JAJM.  The evidence of record indicates that the applicant received nonjudicial punishment under Article 15 for wrongfully using the Air Force e-mail systems for unofficial, unauthorized, uses by sending 294 non-mission related e-mails to a married woman which were of a highly personal nature, referencing lovemaking, expressing love, torment, love poems, and personal greeting cards; receiving over 100 non-mission related e-mails; wrongfully having sexual intercourse with a married woman; and, willfully disobeying a lawful order to cease and desist all contact with a married woman.  We are not inclined to disturb the discretionary judgment of commanding officers, who are closer to events, absent a strong showing of abuse of that authority, which has not occurred in this case.  In view of the foregoing, and in the absence of clear-cut evidence to the contrary, we agree with the recommendation of the AFLSA/JAJM and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the applicant's request.

4.  The portion of the application pertaining to the applicant's request that his under other than honorable conditions (UOTHC) discharge be voided was not considered, as requested by the applicant.

5.  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.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2002-02083 in Executive Session on 7 Oct 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Forms 149, undated and dated 4 Jan 03,
                w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum for Chief of Staff, dated 17 Jan 02,
                w/atchs.
    Exhibit D.  Letter, AFLSA/JAJM, dated 15 Apr 03.
    Exhibit E.  Letter, AFPC/DPPRS, dated 29 Apr 03.
    Exhibit F.  Letter, SAF/MRBR, dated 9 May 03.
    Exhibit G.  Letter, applicant, dated 9 Jun 03.
    Exhibit H.  Applicant's Rebuttal Statement, undtd, w/atchs.

                                   Panel Chair