RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-04076
		INDEX NUMBER:  126.00
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 1 Jul 97 be set aside and all rights and property of which he was deprived be restored.

The referral Enlisted Performance Report (EPR) rendered on him for the period 8 May 97 through 7 May 98 be voided and removed from his record.

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APPLICANT CONTENDS THAT:

His ex-wife fabricated the charges against him.  She manipulated 
their children to support her claims of spousal abuse.  His ex-wife has provided him a statement recanting her earlier claims.  His oldest child has also written a statement verifying that false statements were given to the Office of Special Investigation (OSI).

In support of his appeal, the applicant provides a statement of his account of the Article 15 action, a copy of the Article 15 and appeal actions, a copy of his record of performance, and a recent statement from his daughter.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is presently serving on active duty in the grade of master sergeant (MSgt) (E-7).  He enlisted in the Air Force on  24 Aug 82.  In Jan 97, while he was serving in the grade of MSgt (E-7), an OSI investigation was initiated on the applicant due to his alleged aggravated assault of his dependent wife at their off-base residence.  The applicant’s wife also made claims that the applicant physically and sexually abused her on several occasions.  The OSI investigation was concluded on 19 May 97.  On 13 Jun 97, the applicant’s commander offered him proceedings under Article 15 for an alleged violation of Article 128, Uniform Code of Military Justice (UCMJ), for assault on his wife.  On   23 Jun 97, the applicant accepted proceedings under Article 15 and submitted a written presentation.  On 1 Jul 97, the applicant’s commander determined that the applicant had committed the alleged offense.  He imposed punishment consisting of a six-month suspended reduction to technical sergeant (E-6), forfeiture of $973.00 per month for two months, and a reprimand.  On 10 Jul 97, the applicant appealed the punishment and submitted a written presentation for consideration by the appeal authority.  The appeal authority granted the applicant’s appeal to reduce the amount of forfeiture to $650.00 per month for two months.  The other part of the punishment remained the same.  A resume of the applicant’s last ten EPRs follows:

	  Closeout Date			Overall Ratings

	    03 Jan 94				5
	    23 Aug 95				5
	    23 Aug 96				5
	    07 May 97				5
	   *07 May 98				3
	    31 Jan 99				4
	    31 Jan 00				5
	    02 Jan 01				5
	    16 May 01				5
	    02 Mar 02				5

*  Contested referral report.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to set aside his Article 15.  After receiving nonjudicial punishment, a member can apply to his commander or superior commander for set aside of the punishment.  When a commander decides that a member who has been punished, or is being punished, has suffered a “clear injustice,” the commander can cancel the punishment in whole or in part and restore the member’s rights, privileges, or property accordingly.  In this case, the commander concluded that the applicant had assaulted his wife.  The applicant’s successor commander, from whom the applicant requested a set aside, came to the same conclusion, even after reading the recanted statement from the applicant’s wife.  When an application is timely filed, the legal office that processed the Article 15 often can provide the evidence supporting the action.  In this case, more than five years have passed and the evidence is no longer available for review.  The applicant has not provided evidence of a clear error or injustice related to the Article 15 action.

The complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPPE recommends denial of the applicant’s request to remove his referral EPR from his record.  The applicant did not provide substantiated evidence that his 7 May 98 EPR was in error or unjust.  The rating chain simply documented adverse information that occurred during the rating period in accordance with AFI 36-2402, paragraph 1.2.1.

The complete evaluation is at Exhibit D.

AFPC/DPPPWB provides information regarding the applicant’s supplemental consideration for promotion should the 7 May 98 EPR be voided.  The applicant will be eligible for supplemental promotion consideration beginning with cycle 99E8 should the Board void the EPR.

The complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 9 May 03 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, in particular, the letters authored by his daughter and ex-wife; however, we are not persuaded that the applicant has been the victim of an error or injustice.  We especially found the letter from his ex-wife recanting her allegations against him problematic.  As pointed out by AFLSA/JAJM, the letter has no return address, is not dated, and does not provide a phone number or other means by which to contact her.  Finally, the letter states: “so I know the purpose is to help him I expect contact with me to come through him first.  That way I will know that I am only doing things that will help him and he will know that I am not doing anything else to hurt him.”  Even if we accept the letter on its face, this statement causes us to wonder whether its intent is to right a wrong done to the applicant or to mitigate the consequences he has suffered, regardless of whether he committed the stated offenses.  As noted in AFLSA/JAJM’s evaluation, the applicant’s commander considered this same letter before she denied his request to set aside his Article 15.  Finally, although the actions taken against the applicant may have been instigated by his ex-wife’s allegations against him, the commander only took action after an investigation by the OSI substantiated misconduct on the applicant’s part.  We do not find the actions of the applicant’s commander in this case to be either arbitrary or capricious.  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 BC-2002-04076 in Executive Session on 2 July 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 21 Feb 03.
    Exhibit D.  Memorandum, AFPC/DPPPE, dated 11 Apr 03.
    Exhibit E.  Memorandum, AFPC/DPPPWB, dated 17 Apr 03.
    Exhibit F.  Letter, SAF/MRBR, dated 9 May 03.