RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00260

					COUNSEL:  NONE

					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  The Letter of Reprimand (LOR) dated 14 June 2000 and the Unfavorable Information File (UIF) be removed from his records.

2.  The punishment imposed upon him under Article 15, Uniform Code of Military Justice (UCMJ), dated 26 December 2000 be set aside.

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APPLICANT CONTENDS THAT:

The unfavorable information is in error or unjust.  He states he is innocent of the charges that are the basis for the Article 15 action.  He also states he did not fail to go on 18 September 2000, since AFI 65-103 states that any day in excess of the permissive TDY would be chargeable leave.

In support of the appeal, applicant submits his Article 15 submissions including numerous character references, and performance reports.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant is currently serving in the Regular Air Force in the grade of staff sergeant.

On 14 June 2000, applicant received an LOR for failure to return from emergency leave by a specified date.  On 22 June 2000, the applicant provided a rebuttal, stating that he never noticed the return date on his flight itinerary differed from the date he actually thought he was returning.

On 24 October 2000, applicant was served an Article 15 for failure to return to work after a permissive TDY (PTDY).  The applicant declined the Article 15 via memorandum dated 30 October 2000.  He pointed out that the AF Form 988, Leave Request/Authorization, reflected his PTDY dates as             13-20 September 2000, yet he was charged with not reporting for duty on 18 September 2000.  Based on the documentation submitted the matter was temporarily dropped.  On 13 December 2000, the applicant’s commander reissued the Article 15 for failure to report to work on 18 September 2000 (after his PTDY); failure to refrain from administering a vaccine to members of a particular squadron; and making a statement, with intent to deceive, concerning the fact that he (the applicant) was authorized to administer the above referenced vaccine.

On 20 December 2000, after consulting with counsel, applicant waived his right to a trial by court-martial, did not request a personal appearance and submitted a written presentation.

On 26 December 2000, applicant’s commander found that the applicant had committed the offenses and imposed the following punishment:  Reduction to the grade of Senior Airman, suspended until 25 June 2001, after which time it will be remitted without further action, unless sooner vacated, and 20 days extra duty.  After careful consideration and review of all matters submitted, the commander set aside that portion of the punishment which consisted of a suspended reduction to the grade of Senior Airman.  The remaining portion of the punishment remained in effect.

Applicant did appeal the punishment; however, the appeal was denied on 1 January 2001.  The Article 15 was filed in his Unfavorable Information File (UIF).

EPR profile since 1996 follows:

		PERIOD ENDING		OVERALL EVALUATION

			10 May 96			5
			10 May 97			5
			10 May 98			5
			30 Jan 99			5
			30 Jan 00			5
			29 Dec 00			3

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AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division, AFLSA/JAJM, reviewed the application and states that after reviewing the evidence and applicant’s submissions, the commander found the applicant committed the offenses alleged.  The punishment imposed on the applicant was lawful and extremely lenient for the offenses committed.

In reference to the applicant contending that he did not fail to go on 18 September, since AFI 65-103 states that any day in excess of the permissive TDY would be chargeable leave; they point out that Air Force Instruction 36-3003, para 12.3.8, states that unit commanders should charge leave for any additional absence beyond the approved permissive TDY.  They further state the applicant fails to acknowledge that his commander would have to approve whatever leave he requested in conjunction with the permissive TDY.  Although he called into his squadron on 18 September 2000, the applicant failed to contact the appropriate individual(s) who could authorize his leave.  They state he determined on his own accord that he would take a day of leave.  The further state, as a non-commissioned officer, it is reasonable to conclude the applicant was or should have been aware of the necessary authorization he would need to be granted leave.

In reference to the applicant stating his flight commander told him to start routinely immunizing all of 36th Airlift Squadron and 374th Security Forces Squadron members on mobility status, the commander reviewed statements provided by both the flight commander and the applicant and he found the flight commander’s statement to be more credible than the applicant.

They state the applicant provided no evidence of a clear error or injustice related to the nonjudicial punishment proceedings.  In addition, the applicant was granted relief in that the majority of his appeal was granted.  The remaining punishment was extremely light, consisting solely of 20 days extra duty.

They further state that set aside should only be utilized where, under all the circumstances of the case, the punishment has resulted in a clear injustice.  Which is not the case here.  The evidence presented by the applicant is insufficient to mandate the relief requested, and does not demonstrate an equitable basis for relief.  Therefore, they recommend denial of applicant’s request to have his Article 15 set aside.

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

The Chief, Field Activities Division, AFPC/DPSF, recommends relief be provided.  They normally work under the premise that a commander’s decision-making authority is paramount when issuing LORs or imposing Article 15 punishment.  However, while technically correct in the administration of the derogatory data, the applicant has provided documentation that lends credence to his version of the events and the AFI and AF Form 988 validate his assertions regarding the PTDY issue.  They state, if the emergency leave issue wasn’t held against the applicant as a second incident, the PTDY issue (for which the applicant was correct) might not have been included in the Article 15.  Additionally, the documentation submitted demonstrates that vaccination policy in the immunization clinic wasn’t clear.  Therefore, they believe this warrants approval of his request.

A complete copy of the evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and states that he believes this situation to be just a blip in his career that seeks unbiased overview.  He states there were no intentions to deceive the government.  He states the he is providing more evidence that would outline more circumstances that he inhibited during his time of mismanagement.  He is not intending the debase anyone character, just to point out the wrong that was simply done to him because it was allowed.

Applicant's complete response, with attachments, is attached at 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 warranting removal of the contested Article 15 from applicant’s record and from his Unfavorable Information File.  After reviewing the evidence of record, we believe that sufficient doubt exists as to the accuracy of the contested Article 15.  In this respect, we note that the Chief, Field Activities Division, indicates in his advisory that the applicant has provided documentation that lends credence to his version of the events and the AFI and AF Form 988 validates applicant’s assertions regarding the PTDY issue.  In addition, we note that the vaccination policy in the immunization clinic was not clear.  In view of the above findings and in an effort to remove any possibility of an injustice, we recommend that the applicant’s records be corrected to the extent indicated below.

4.	Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice in regard to the contested LOR.  After reviewing the evidence of record, we are not persuaded that the actions taken against the applicant constituted an abuse of discretion on the part of his NCOIC.  Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend removal of the contested LOR from applicant’s 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 Article 15, UCMJ, initiated on 13 December 2000, with punishment imposed on 26 December 2000, be void and expunged from his records, and all rights, privileges and property of which he may have been deprived be restored.

    b.  Any reference to the above Article 15 being placed in his Unfavorable Information File (UIF) be removed from his records.

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The following members of the Board considered this application in Executive Session on 18 December 2001, under the provisions of AFI 36-2603:

	            Chair
	            Member
              Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 Jan 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 20 Jun 01.
   Exhibit D.  Letter, AFPC/DPSF, dated 27 Aug 01.
   Exhibit E.  Letter, AFBCMR, dated 31 Aug 01.
   Exhibit F.  Applicant's Response, dated 28 Sep 01, w/atchs.

                                   
                                   Vice Chair

AFBCMR 01-00260

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 Article 15, UCMJ, initiated on 13 December 2000, with punishment imposed on 26 December 2000, 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.  Any reference to the above Article 15 being placed in his Unfavorable Information File (UIF) be, and hereby is, declared void and removed.

		
		Director
		Air Force Review Boards Agency