RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00224
		INDEX CODES:  111.02, 126.04

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15, imposed on 16 Nov 98, be set aside and removed from his records, and that all rights, privileges, and benefits taken from him because of the Article 15 be restored.

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APPLICANT CONTENDS THAT:

The Article 15 was in error and unjust because under the preemption doctrine the alleged offense was not lawful.

In support of his appeal, the applicant provided copies of the Article 15, Armed Forces Traffic Ticket, Blood Alcohol Testing Record, and an extract from The Reporter, Office of the Judge Advocate General.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was honorably discharged on 6 May 01 under the provisions of AFI 36-3208 (Completion of Required Active Service).  He was credited with 4 years of active duty service.

Applicant's EPR profile follows:

	PERIOD ENDING	EVALUATION

	 6 Jan 99		4 (Referral)
	 6 Jan 00		4
	10 Aug 00		3 (Referral)

The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force.  Accordingly, there is no need to recite these facts in this Record of Proceedings.

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AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed this application and noted that on 22 Oct 98, the applicant was notified of his commander’s intent to impose nonjudicial punishment for an alleged violation of Article 134, Uniform Code of Military Justice (UCMJ).  Specifically, the applicant was accused of driving while the alcohol concentration in his blood was .08 grams of alcohol per 100 milliliters of blood, a violation of California Vehicle Code 23152(b), as assimilated by Title 18 United States Code (U.S.C.) Section 13.  After consulting counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He made a personal appearance before his commander and submitted a written presentation.  On 16 Nov 98, the commander found the applicant guilty and imposed punishment of a reduction to the grade of airman (from airman first class) and forfeiture of $250.00 pay per month for two months.  The applicant did not appeal the nonjudicial punishment.

According to JAJM, Article 134, UCMJ, creates three different types of crimes, commonly referred to as clause 1, 2, and 3 offenses.  Clause 3 offenses involve non-capital crimes or offenses that violate Federal law, including law made applicable through the Federal Assimilative Crimes Act.  The use of Article 134, UCMJ, to charge misconduct is limited by the preemption doctrine. The preemption doctrine states if any conduct charged under Article 134, UCMJ, is specifically made punishable by another article of the code, it must be charged as a violation of that article.  This doctrine prohibits the application of Article 134, UCMJ, to conduct covered by Articles 80 through 132 because Congress has already set the minimum requirements for such offenses in the enumerated articles.

JAJM indicated that drunk driving is covered by Article 111, UCMJ.  Congress established offenses under Article 111 to be either operating a vehicle in a reckless or wanton manner or while impaired (Article 111 (1), UCMJ) or operating a vehicle with a blood alcohol measurement at .10 grams of alcohol per 100 milliliters of blood (Article 111 (2), UCMJ). As stated in The Reporter, Volume 26, Number 1, (Mar 99), Congress, by enacting clause 2 of Article 111, established the minimum requirements for drunken driving and Congress’ enactment cannot be supplanted with a lower minimum standard.  Thus, the charged offense of drunk driving in violation of Article 134 for an alcohol concentration of .08 grams was not authorized.  While a nonjudicial punishment action can be sustained so long as the alleged offender is aware of the nature of the alleged misconduct, that did not occur here.  Applicant was put on notice of the offense of driving with a blood alcohol content of .08 or more of alcohol per 100 milliliters of blood, which is not sufficient to put him on notice of the offense of operating a vehicle while impaired under Article 111, UCMJ.  Therefore, JAJM stated that they recommend the Board set aside the Article 15 and restore all privileges, property, and rights to the applicant.

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

The Enlisted Promotion and Military Testing Branch, AFPC/DPPPWB, reviewed this application and noted that the applicant received a referral Enlisted Performance Report (EPR) closing 6 Jan 99, with an overall rating of “4.”  The applicant received the referral EPR with references to his Article 15 action which rendered him ineligible for promotion consideration in accordance with AFI 36-2502, Airman Promotion Program, Table 1.1, Rule 22.  DPPPWB indicated that if the AFBCMR sets aside the Article 15 and restores his original date of rank for promotion to the grade of airman first class (A1C) to 7 Nov 98, it could also void the portion of the report that makes it a referral.

DPPPWB also noted that, on 13 Jun 00, the applicant received a Letter of Reprimand (LOR) for a speeding ticket he received on 21 May 00.  On 13 Jun 00, he received another LOR for Driving Under the Influence (DUI) which occurred on 1 Aug 99 (a separate incident from the incident on 16 Nov 98).  In addition, he was placed on the Control Roster.  He also received a referral EPR closing 10 Aug 00 for operating a motor vehicle under the influence of alcohol and violating California State driving laws.  He also received an LOR and an Unfavorable Information File (UIF) for behavior injurious to personnel.  He was nonselected for reenlistment on 26 Oct 00 and discharged on 6 Mar 01 in the grade of A1C.  After the reduction from A1C to Amn on 16 Nov 98, he was again promoted to A1C on 16 Sep 99, when he again completed the 10 months time-in-grade requirement.  That was an erroneous promotion as he was automatically ineligible based on the referral EPR closing 6 Jan 99.  This promotion to A1C was subsequent to the 16 Nov 98 incident but prior to the 21 May 00 speeding incident.  DPPPWB indicated that they are uncertain as to why the applicant was erroneously promoted to A1C on 16 Sep 99, although he had a DUI on 1 Aug 99, 6 weeks earlier and the referral EPR.  Apparently the results were not confirmed at that time as he did not receive the LOR for this incident until 13 Jun 00, and was not placed on the Control Roster until 23 Jun 00.  A referral EPR, placement on the Control Roster, and nonselection for reenlistment are all automatic ineligibility reasons for promotion in accordance with AFI 36-2502.  In view of the additional incidents and adverse actions taken, the applicant is ineligible for promotion to SrA.

DPPPWB deferred to AFLSA/JAJM’s recommendation regarding the set aside of the reduction in grade from A1C to Amn.  DPPPWB indicated that if the reduction is set aside as recommended by AFLSA/JAJM, the applicant’s DOR and effective date would be 7 Nov 98.

A complete copy of DPPPWB evaluation is at Exhibit D.

The Performance Evaluation Section, AFPC/DPPPEP, reviewed this application and indicated that setting aside the Article 15 would make the comments on the EPR closing 6 Jan 99 invalid.  Therefore, if the Article 15 is set aside, they recommend removing the last two lines in Section V and correcting the first line in Section VI.

A complete copy of the DPPPEP 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 applicant on 27 Jul 01 for review and response.  As of this date, no response has been received by this office (Exhibit F).

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  Having carefully reviewed this application, a majority of the Board agrees with the recommendation of AFLSA/JAJM and adopts the rationale expressed as the basis for its decision that the applicant has been the victim of an error or an injustice.  Accordingly, a majority of the Board recommends that the Article 15 imposed on 16 Nov 98 be set aside and removed from his records, and that all rights, privileges, and benefits taken from him because of the Article 15 be restored.  Furthermore, in light of the recommendation to set aside the Article 15, the majority agrees with AFPC/DPPPEP recommendation to remove the comments contained in the applicant’s EPR closing 6 Jan 99 pertaining to the Article 15 punishment.  Accordingly, a majority of the Board recommends that the EPR be amended deleting the last two lines in Section V and the first line in Section VI.  In view of the applicant’s further misconduct, the majority notes that he is not eligible for promotion consideration.  Therefore, no basis exists to recommend supplemental promotion consideration as a result of his corrected records.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	a.  The nonjudicial punishment under Article 15, UCMJ, initiated on 22 Oct 98 and imposed on 16 Nov 98, be declared void and expunged from his records, and all rights, privileges, and property of which he may have been deprived be restored.

	b.  The Enlisted Performance Report, AF Form 910, rendered for the period 7 May 97 through 6 Jan 99 be amended by deleting the last two lines in Section V (Rater’s Comments) and the first line in Section VI (Indorser’s Comments).

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The following members of the Board considered this application in Executive Session on 5 Sep 01, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

By majority vote, the Board voted to correct the records, as recommended.  Mr.   voted to deny the appeal but did not wish to submit a minority report.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 12 Jan 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 16 Apr 01.
     Exhibit D.  Letter, AFPC/DPPPWB, dated 17 May 01, w/atchs.
     Exhibit E.  Letter, AFPC/DPPPEP, undated.
     Exhibit F.  Letter, SAF/MIBR, dated 27 Jul 01.

                                   
                                   Panel Chair

AFBCMR 01-00224

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to , be corrected to show that:

		a.  The nonjudicial punishment under Article 15, UCMJ, initiated on 22 Oct 98 and imposed on 16 Nov 98, be, and hereby is, declared void and expunged from his records, and all rights, privileges, and property of which he may have been deprived be restored.

		b.  The Enlisted Performance Report, AF Form 910, rendered for the period 7 May 97 through 6 Jan 99 be amended by deleting the last two lines in Section V (Rater’s Comments) and the first line in Section VI (Indorser’s Comments).

                                                                           
                                                                           Director
                                                                           Air Force Review Boards Agency