RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03250
		INDEX NUMBER:  126.00; 111.00
	XXXXXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 imposed on her on 15 Mar 93 be set aside and all rights and privileges of which she was deprived be restored.

The referral Enlisted Performance Report (EPR) rendered on her for the period 16 Feb 92 through 15 Feb 93 be voided and removed from her record.

Her noncommissioned officer (NCO) status be reinstated.

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APPLICANT CONTENDS THAT:

In a four-page statement, with attachments, applicant recounts the actions and sequence of events that led to her receiving an Article 15 and referral EPR.

While on active duty at her last duty assignment she endured constant harassment and unfair, discriminatory treatment.  The state of her physical and mental condition today is a direct consequence of the harassment of her superiors in the Air Force.

She was raped on 20 Dec 92 and, as a result, her mental health declined.  With the help of her immediate supervisor, she made every effort to continue being a loyal, conscientious, independent performer.  Her immediate supervisor informed her that he thought she was being singled out, discriminated against, and treated unfairly.  She was eventually given a bad performance rating by her immediate rater’s supervisor, although she and her immediate supervisor provided senior management proof of her achievements.

On 5 Mar 93, she was offered punishment under Article 15 for not taking the trash out, although she and her immediate supervisor explained the mental stress she was under.

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

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 11 Dec 84.  On 5 Mar 93, while the applicant was serving in the grade of sergeant (E-4), her squadron commander notified her he was considering whether she should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for negligent failure to perform her assigned duties.  On 12 Mar 93, the applicant accepted Article 15 proceedings, consulted a lawyer, and submitted a written presentation in her behalf.  On 15 Mar 93, the commander determined that the applicant had committed the alleged offense.  He imposed punishment consisting of a six-month suspended reduction to the grade of airman first class.  The applicant did not appeal.  On 19 Apr 93, the applicant’s squadron commander notified her that he was nonrecommending her for promotion to the grade of staff sergeant for the following reasons:

	  a.  On 6 Aug 92, she received a letter of reprimand (LOR) for failure to properly document a leave, resulting in the establishment of an unfavorable information file (UIF) and placement on the control roster.

	  b.  On 26 Feb 93, she was counseled for failing to perform an office detail she was responsible for scheduling.

	  c.  On 15 Mar 93, she received the Article 15 referenced above.

On 21 Jun 93, the applicant’s squadron commander notified her that he was considering whether to vacate the suspended punishment imposed on 15 Mar 93 for the alleged offenses of dereliction of duty and failure to obey a lawful general regulation.  The applicant consulted a lawyer, requested a personal appearance, and submitted a written presentation.  On 30 Jun 93, the squadron commander determined that the applicant committed the alleged offenses and vacated the suspended punishment.  The applicant was reduced to the grade of airman first class effective 15 Mar 93.

A summary of the applicant’s EPRs and Airman Performance Reports (APRs) follows:

	Closeout Date				Overall Rating

    28 Jun 85					8
    27 Mar 86					8
    27 Mar 87					9
    29 Jan 88					9
    29 Jan 89					9
   *15 Feb 90					4
    15 Feb 91					4
    15 Feb 92					3
  **15 Feb 93					2

*  Start of ratings under the EPR system (maximum rating is 5)
** Contested referral report.

The applicant requested voluntary separation under AFR 39-10 and was discharged 10 Sep 93.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s requests.

The applicant contends that the Article 15 she received is the result of racial animus and that she is the victim of disparate treatment.  She also alleges that she was the victim of sexual harassment by a senior noncommissioned officer (NCO), an African American male.

The applicant traces all of her problems in the Air Force to    20 Dec 92 after a black man allegedly raped her after her car broke down in a bad section of town where she was assigned.  The applicant did not call police, did not go directly to the hospital, but went directly home.  She reported the attack several days later to the hospital, but could offer no specifics.  The applicant fails to mention the various administrative actions taken against her prior to 20 Dec 92.  Noteworthy is the reason why the Article 15 punishment imposed on 15 Mar 93 was vacated.  The applicant was caught watching TV and doing her laundry instead of the detail she was assigned.  The applicant also showed a general disdain for senior personnel and Air Force regulations as exemplified by her decision to wear unauthorized hosiery after having been previously warned.

Unless it is shown that a commander’s findings were either arbitrary or capricious, they 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 judgment of field commanders.  The commander in this case weighed all the evidence and made his decision.  The basis of the applicant’s request for relief is insufficient to warrant setting aside the Article 15 action.

The complete evaluation is at Exhibit C.

AFPC/DPPPE recommends that the applicant’s request to void her EPR closing 15 Feb 93 be denied.  The applicant’s contention that the referral action taken against her was the result of unfair treatment has not been substantiated.  She has not provided any supporting documentation proving that the comments made in her EPR were not valid.

The complete evaluation is at Exhibit D.

AFPC/DPPPWB evaluated the impact of the Article 15 and referral EPR on the applicant’s promotion opportunity.  They note that the applicant’s original date of rank as a sergeant (E-4) was 11 Dec 87 and that the referral EPR was never used in the promotion process.  They defer to the recommendations of AFLSA/JAJM and AFPC/DPPPE regarding the applicant’s requests.

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 12 Mar 04 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

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.  The applicant has made some serious and disturbing allegations.  However, insufficient evidence has been presented to substantiate them.  Additionally, while there are several character and support letters provided, none of them appear to be from senior members of the rating chain.  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-2003-03250 in Executive Session on 18 May 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Aug 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 14 Jan 04.
    Exhibit D.  Memorandum, AFPC/DPPPE, dated 27 Feb 04.
    Exhibit E.  Memorandum, AFPC/DPPPWB, dated 2 Mar 04.
    Exhibit F.  Letter, SAF/MRBR, dated 12 Mar 04.