RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02083
		INDEX CODES:  110.03, 126.04

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 imposed on 18 Mar 02 be set aside and expunged from his records.

He be reinstated in the Air Force in the grade of staff sergeant with the date of rank (DOR) he held prior to the Article 15.

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APPLICANT CONTENDS THAT:

He was wrongly accused and did not commit the acts alleged against him.  The investigation into the allegations was poorly conducted and had no evidence to support he committed the acts.

In support of his appeal, the applicant provided an expanded statement and extracts from his military personnel records.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 13 Aug 92 for a period of four years in the grade of airman basic.  Prior to the matter under review, he was progressively promoted to the grade of staff sergeant.

Applicant’s Enlisted Performance Report (EPR) profile follows:

	PERIOD ENDING	EVALUATION

	28 Aug 94		4
	28 Aug 95		4
	28 Aug 96		5
	28 Aug 97		5
	28 Aug 98		5
	31 Mar 99		5
	31 Oct 99		5
	31 Oct 00		5
	31 Oct 01		4

On 8 Mar 02, the applicant was notified of his commander's intent to impose nonjudicial punishment upon him for, on about 1 Jun 99, stealing military property (cellular phone) of a value greater than $100.00; and, on or about 1 Jun 99 and 31 Oct 99, with intent to defraud, falsely pretending he was an authorized user and wrongfully obtained cellular telephone services of a value greater than $100.00.

On 13 Mar 02, after consulting with counsel, the applicant waived his right to a trial by court-martial and submitted a written presentation.

On 18 Mar 02, he was found guilty by his commander who imposed the following punishment:  reduction from the grade of staff sergeant to senior airman.  He appealed but it was denied.

On 2 Apr 02, the applicant was notified by his commander he was recommending the applicant be discharged from the Air Force for the commission of a serious offense.  The reasons for this action was that, on about 1 Jun 99, the applicant stole a military cellular phone with a value greater than $100.00.  Also, between on or about 1 Jun 99 and  31 Oct 99, he fraudulently obtained cellular services from De TeMobil Deutsche Telekom MobilNet GmbH with a value greater than $100.00.  For these offenses he received an Article 15.

On 9 Apr 02, the applicant waived his right to an administrative discharge board on the condition that he received no less than a general discharge.

On 23 Apr 02, the office of the staff judge advocate recommended the applicant’s conditional waiver be accepted and he be discharged with a general discharge.

On 3 May 02, the discharge authority accepted the applicant’s conditional waiver and directed that he be discharged with a general discharge.

On 6 May 02, the applicant was discharged under the provisions of AFI 36-3208 (Misconduct) and furnished a general discharge.  He was credited with 9 years, 8 months, and 24 days of active service.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating this is not a case for set aside.  As often occurs, this case presented multiple pieces of circumstantial evidence to the commander at the time of the nonjudicial punishment and to the next superior commander at the time the applicant’s appeal of the punishment.  When considering the imposition of nonjudicial punishment, or when considering an appeal from such punishment, the commander must weigh the evidence, including possible alternative interpretations, and draw reasonable inferences from the known facts.  The commanders’ determinations here were not manifestly unreasonable or clearly unfair, and set aside is not in the best interest of the Air Force.  Despite the applicant’s assertion the evidence did not support the nonjudicial punishment, the preponderance of the evidence indicated the applicant stole the government phone and then surreptitiously used it for personal enjoyment.  In AFLSA/JAJM’s view, there is no error or injustice in connection with the military justice action or the resulting administrative discharge.  The commander’s imposition of a one-grade reduction was a permissible and proportionate punishment.

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

AFPC/DPPRS recommended denial indicating that based on the available documentation, the applicant’s discharge was consistent with the procedural and substantive requirements of the discharge regulation, and was within the discretion of the discharge authority.

A complete copy of the AFPC/DPPRS 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 applicant on 3 Sep 04 for review and response.  As of this date, no response has been received by this office (Exhibit E).

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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.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, the majority of the Board does not find the applicant’s uncorroborated assertions or the documentation presented sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs).  The evidence of record indicates the applicant received nonjudicial punishment under Article 15 for stealing a military cellular phone and fraudulently obtaining cellular services.  As a result of the Article 15, the applicant was involuntarily discharged from the Air Force for misconduct.  The applicant now requests the Article 15 be expunged from his records and he be reinstated in the Air Force.  Unless the Article 15 is removed, no basis would appear to exist for reinstating the applicant.  However, the majority is not inclined to remove the Article 15 from the applicant’s records absent a strong showing the commander who imposed the punishment abused his discretionary authority.  Furthermore, no evidence has been presented which would lead the majority to believe his discharge was improper or contrary to the governing directive under which it was effected.  Therefore, in the absence of evidence the applicant's substantial rights were violated, the information contained in the discharge case file was erroneous, or his superiors abused their discretionary authority, the majority of the Board adopts the Air Force rationale and conclude that no compelling basis exists to recommend granting the relief sought in this application.

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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered AFBCMR Docket Number BC-2004-02083 in Executive Session on 21 Oct 04, under the provisions of AFI 36-2603:

By a majority vote, the Board voted to deny the application.  Ms. XXXXX voted to grant the appeal but did not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 18 Aug 04.
    Exhibit D.  Letter, AFPC/DPPRS, dated 27 Aug 04.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Sep 04.

AFBCMR BC-2004-02083

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
			FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of 

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.