RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01793
		INDEX NUMBER:  126.00
	XXXXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 he received on 26 Jan 01 be set aside and removed from his records.

The Enlisted Performance Report (EPR) rendered on him for the period 7 Nov 00 through 6 Nov 01 be voided and removed from his records.

He be awarded as a minimum an Air Force Commendation Medal for his assignment to Naval Air Station Keflavik.

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APPLICANT CONTENDS THAT:

The individual that called the police didn’t follow Air Force procedures for resolving complaints in the dormitory.

Navy Security overacted because he was intimidated by the applicant’s size.

His commander didn’t listen to advice from his first sergeant and superintendent.

The incident was racially motivated.  He was never asked by his next door neighbor to turn down his music.

In support of his appeal, applicant provided copy of an unsigned memorandum from his Operations Superintendent, a copy of the findings of an Inspector General (IG) complaint, and copies of his appeal of the Article 15.

The applicant submitted an addendum memorandum to his initial appeal requesting that he receive an end of tour decoration.  The applicant contends that he was denied an end of tour decoration due to the unjust Article 15 and EPR that he received.

The applicant’s complete submission, with attachments, 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.  According to information provided by AFPC/DPPPWB, the applicant became a select for master sergeant during cycle 02E7 with a date of rank of 1 Sep 02.

On 16 Jan 01, while serving in the grade of technical sergeant (E-6), proceedings under Article 15 were initiated against the applicant for the violation of Article 95 of the Uniformed Code of Military Justice (UCMJ), “Resisting Arrest,” and Article 134, “Disorderly Conduct and Drunkenness.”  On 19 Jan 01, the applicant accepted proceedings under Article 15 and waived his right to trial by court martial and elected to make a personal appearance before his commander and submit a written presentation.  On 26 Jan 01, the applicant’s commander found that the applicant committed one or more of the offenses charged.  He imposed punishment of reduction to the grade of staff sergeant (E-5), suspended for six months, forfeiture of $1,003.00 pay, suspended for six months, and a reprimand.  The applicant appealed the punishment.  On 21 Feb 01, the appellate authority denied the applicant’s appeal.

A resume of the applicant’s last ten EPRs follows:

	Closeout Date				Overall Rating

	  05 Feb 93					5
	  30 Aug 94					5
	  30 Aug 95					5
	  25 Jun 96					5
	  25 Jun 97					5
	  25 Jun 98					5
	  25 Jun 99					5
	  25 Jun 00					5
	  06 Nov 00					5
	 *06 Nov 01					4

*  Contested Report

The remaining relevant facts pertaining to this application are found in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C, D, and E.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to set aside the Article 15 he received on 26 Jan 01.

According to the complainant involved in the incident with the applicant, he asked the applicant to turn down his music or he would call Navy Security.  Applicant, who is black, started screaming that the complainant was a racist and pushed him.  Applicant bumped into the complainant chest to chest and knocked the phone out of his hand and stepped on it.  The complainant then went to his room and called Navy Security from another phone.  The complainant's wife made a statement that tracked with that of her husband.

When Navy Security arrived, the patrolman stated he found applicant in the hallway and asked him for identification.  The patrolman detected the odor of alcohol coming from the applicant (his BAT was .157% 3 hours after the incident).  Applicant refused several times to give the patrolman his ID and was informed that he was being apprehended for assault.  He was ordered several times to place his hands behind his back and refused.  The patrolman reported that the applicant stated that he was not going to be handcuffed and he grabbed the patrolman’s arm.  The patrolman ordered the applicant to comply with his orders or he would be sprayed with pepper spray.  The applicant refused and was sprayed.  He was then wrestled to the ground and handcuffed.  The other patrolman dispatched to the dormitory confirmed the major details.  Another witness also gave essentially the same story.

At the time of the incident, applicant initially declined to give a statement but did provide a memo for record the next day.  In the memo, he stated that the patrolman assaulted him and he never assaulted the complainant in the dorm.  He states that he fully cooperated with the patrolman and after he was handcuffed, he was thrown to the ground and sprayed with pepper spray.  In his response to the Article 15, applicant stated that the complainant’s statement was not true and he never assaulted him.  He further states that he was never asked for his ID, never resisted arrest, and never grabbed the patrolman’s arm.  He also stated that the witnesses’ statement was not true.  

Applicant’s contentions are without merit.  Whatever procedures may have existed for handling incidents in the dormitory have no bearing on the matters for which the applicant was punished nor would the existence of such procedures confer any rights to the applicant.  Navy Security was called and the incident occurred.  There is no evidence that the call to Navy Security was racially motivated.  Naval authorities investigated applicant’s IG complaint and the allegations found to be unsubstantiated.

By accepting proceedings under Article 15, applicant placed the responsibility to decide whether he had committed the offenses with his commander.  The commander had to weigh all the evidence, including the credibility of the various co-workers, and make his decision.  The applicant’s arguments failed to convince either the commander who imposed punishment or the appellate authority.  While different fact finders might 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/DPPPE recommends denial of the applicant’s request to void the EPR rendered on him closing 6 Nov 01.  The applicant did not provide any specific arguments against the EPR in question and no documentation to suggest the report was erroneous or unjust.  The report does not mention the Article 15 or the incident that led to it.

The complete evaluation is at Exhibit D.

AFPC/DPPPWB evaluated the effect a set aside of the Article 15 would have on the applicant’s promotion opportunity.  If the Board decides to remove the Article 15, the applicant would be eligible for supplemental promotion consideration for cycle 01E7.  If only the EPR is removed, the applicant would remain ineligible for promotion consideration during cycle 01E7.

The complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluation by indicating that he has done everything possible to prove that he was singled out and discriminated against because he is African American.  He provides information about other incidents that occurred at his unit that he contends were handled differently based on the race of the individuals involved.  He contends that out of three alcohol incidents under the same commander, only the African Americans were punished.  He indicates that he is willing to take a polygraph and to testify before the Board if necessary.  The applicant also provides a copy of a statement from an eyewitness to the incident that he claims told him that the commander wanted to make an example out of him.

The applicant’s complete response, with attachment, is at Exhibit G.

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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 are not persuaded that the applicant has been the victim of an error or injustice.  The applicant has not provided corroborating evidence for his version of events.  Also, we note that none of the allegations filed by the applicant in an IG complaint were substantiated.  Finally, we find the actions taken by the applicant’s commander to be within his discretionary authority and do not find any evidence that they were 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 02-01793 in Executive Session on 5 November 2002, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 May 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 20 Aug 02
    Exhibit D.  Memorandum, AFPC/DPPPE, dated 19 Sep 02.
    Exhibit E.  Memorandum, AFPC/DPPPWB, dated 20 Sep 02.
    Exhibit F.  Letter, SAF/MIBR, dated 4 Oct 02.
    Exhibit G.  Memorandum, Applicant, undated, w/atch.

                                   
                                   Panel Chair