RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02628
		INDEX NUMBER:  126.00
	XXXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 he received on 26 Jul 99 be set aside and he be restored to the grade of master sergeant.

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APPLICANT CONTENDS THAT:

He received the Article 15 based entirely on the hearsay of his accuser.  The only proof presented to the commander was the word of his accuser to her friends.  None of the allegations against him were substantiated through other means.

The result of the Article 15 was his demotion to technical sergeant (E-6), which put him at his high year of tenure (HYT) and forced him out of service.

Applicant provides his account of the incident that led to the Article 15.

Also in support of his appeal, applicant provides a copy of the Article 15 paperwork with supporting statements and current letters of recommendation addressed to the AFBCMR.

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

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STATEMENT OF FACTS:

The applicant, while serving in the grade of master sergeant was offered an Article 15 on 1 Jul 99 for the following alleged violations of the Uniformed Code of Military Justice (UCMJ):

	  a.  Violation of Article 92, dereliction of his duties in that he failed to refrain from engaging in an unprofessional relationship with a subordinate airman.

	  b.  Violation of Article 93, maltreatment of an airman subject to his orders, by offering to influence her job in exchange for sexual favors.

	  c.  Violation of Article 125, committing sodomy with a subordinate airman.

	  d.  Violation of Article 134, he, a married man, wrongfully had sexual intercourse with a subordinate airman, a woman not his wife.

The applicant accepted proceedings under Article 15 on 23 Jul 99.  On 26 Jul 99, the commander determined that he had committed the alleged offenses and imposed punishment consisting of reduction to the grade of TSgt.  The applicant elected not to appeal.

The applicant retired in the grade of TSgt effective 1 Dec 99 with 20 years of active service.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  They provide an account of the incidents leading to the applicant’s Article 15 as given by the accuser.  By electing to resolve the allegations in the nonjudicial forum, the applicant placed the responsibility to determine an appropriate punishment with his commander.  Likewise, his commander was given the responsibility to determine an appropriate punishment if the commander determined the applicant had committed one or both of the offenses.  The commander had to weigh all the evidence, including the credibility of the various witnesses, and make his decision.  The commander ultimately resolved the issues of the alleged misconduct against the applicant.  Applicant chose not to appeal the commander’s determination, which prevented a timely look by another commander at the issues applicant now raises again, over three years later.

There was sufficient evidence for the commander to determine that the applicant had committed the alleged offenses.  The applicant’s arguments failed to convince the commander.  While different fact finders may have come to a different conclusion, the commander’s findings are neither arbitrary nor capricious and should not be disturbed.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB evaluated the effect of a set aside of the applicant’s Article 15 on his promotion to MSgt.  They defer to the recommendation of AFLSA/JAJM regarding the propriety of setting aside the Article 15.  If the Board elects to set aside the Article 15, the applicant’s effective date and date of rank would be 1 Apr 98.

The 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 11 Oct 02 for review and comment within 30 days.  To date, a response has not been received.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, 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.

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The following members of the Board considered Docket Number 02-02628 in Executive Session on 23 January 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 20 Sep 02.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 1 Oct 02.
    Exhibit E.  Letter, SAF/MIBR, dated 11 Oct 02.