RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00307
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His retirement pay grade be changed from E-6 to E-7.

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APPLICANT CONTENDS THAT:

The reduction in his rank was based on unsubstantiated allegations of improprieties regarding his use of government properties for his personal use and in connection with his legitimate off-duty employment as a police officer.  Therefore, it was unjust.

In support of his appeal, the applicant provided a personal statement, and a copy of his nonjudicial punishment under Article 15 and related documentation, to include supportive statements.

Applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force on 4 Nov 76.  Prior to the events under review, he was progressively promoted to the grade of master sergeant.

Applicant's Airman Performance Report/Enlisted Performance Report (APR/EPR) profile since 1987 follows:

	PERIOD ENDING	EVALUATION
	 2 Aug 87		9
	 2 Aug 88		9
	 2 Aug 89		9
	 2 Aug 90		5 (EPR)
	10 Jun 91		5
	29 Jan 92		5
	29 Jan 93		5
	29 Jan 94		5
	29 Jan 95		5
	29 Jan 96		5
	29 Jan 97		5

On 10 Oct 97, the applicant’s commander notified him that he was considering whether he should be punished under Article 15, Uniform Code of Military Justice (UCMJ) based on allegations that the applicant violated Article 92, in that he did, on divers occasions between on or about 1 Nov 96, and on or about 28 Feb 97, violate a lawful general regulation, to wit:  Department of the Defense (DOD) Directive 5500.7-R, paragraph 2635.704(a), by wrongfully using and allowing the use of government property, to wit:  computers, office supplies, data processing and reproduction equipment, telecommunications equipment, in connection with his employment by the Sugar Creek Police Department; he did, on divers occasions between on or about 1 Dec 95, and on or about 20 Feb 97, violate a lawful general regulation, to wit:  Department of the Defense (DOD) Directive 5500.7-R, paragraph 2635.704(a), by wrongfully using government property, to wit:  a router, tenets, mallets, sledge hammers, cordless drills, battery chargers, drill bits, a palm stapler, iron tent stakes, leather gloves, a Porter-Cable belt sander, a Skil orbital sander and cargo straps for his personal use or in connection with his employment by the Sugar Creek Police Department; he did, on divers occasions between on or about 1 Sep 96, and on or about 31 Dec 96, violate a lawful general regulation, to wit:  Department of the Defense (DOD) Directive 5500.7-R, paragraph 2635.705(b), by wrongfully directing and/or coercing subordinates to use official time to perform activities not required in the performance of their official duties nor authorized by law or regulation, to wit:  directing a technical sergeant to use his official duty time to perform computer work for the Sugar Creek Police Department, and directing two staff sergeants to use their official duty time to design, acquire, transport and assemble furniture for the Cincinnati, Ohio, office of the Drug Enforcement Administration; he did, on diverse occasions between on or about 1 Sep 96, and on or about 28 Feb 97, violate a lawful general regulation, to wit:  Department of the Defense (DOD) Directive 5500.7-R, paragraph 2635.705(a), by wrongfully using official time to perform activities not required in the performance of his official duties nor authorized by law or regulation to wit:  using his official duty time to engage in activities associated with his employment with the Sugar Creek Police Department, and using his official duty time to design, acquire, transport and assemble furniture for the Cincinnati, Ohio, office of the Drug Enforcement Administration; he was, on diverse occasions between on or about 1 Jan 93, and on or about 31 Dec 96, derelict in the performance of his duties in that he willfully failed to perform official duties during his military duty hours as it was his duty to do, to wit:  that he willfully performed work related to his employment with the Sugar Creek Police Department during military duty hours, willfully slept during his military duty hours, and willfully engaged in frequent, protracted, personal telephone calls during his military duty hours; he did, on divers occasions between on or about 1 Aug 95 and on or about 30 Jun 97, fail to obey a lawful general regulation, to wit:  AFI 31-207, paragraph 2.11, by carrying a concealed firearm without proper authorization; and, that he violated Article 128, in that he did, between on or about 1 Aug 94 and on or about 31 Dec 94, unlawfully push a staff sergeant on the upper part of his body with his hands causing the staff sergeant to fall backwards over a chair and onto the floor.

The applicant was advised of his rights in the matter.  After consulting legal counsel, the applicant waived his right to demand trial by court-martial, accepted the nonjudicial proceedings under Article 15, and submitted written comments for review.  On 27 Oct 97, after considering the matters presented by the applicant, the commander found that the applicant had committed one or more of the offenses alleged and imposed punishment consisting of a reduction from the grade of master sergeant to the grade of technical sergeant, forfeiture of $1020.00 pay per month for two months, and 20 days of extra duty.  The applicant appealed the punishment.  An AF Form 3212, Record of Supplementary Action Under Article 15, UCMJ, dated 3 Nov 97, indicated that the punishment of forfeiture of $1020.00 pay per month for two months was mitigated to forfeiture of $250.00 pay per month for two months.  The applicant acknowledged that he had seen the action taken on his appeal.  On 3 Nov 97, legal authority found that the nonjudicial proceedings under Article 15 were legally sufficient.

On 6 Jan 98, the Secretary of the Air Force found that the applicant did not serve satisfactorily in any higher grade than technical sergeant and that he would not be advanced under the provisions of Section 8984, Title 10, United States Code.

On 31 Jan 98, the applicant was relieved from active duty and retired for length of service, effective 1 Feb 98, in the grade of technical sergeant.  He was credited with 21 years, 2 months, and 27 days of active duty service.

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AIR FORCE EVALUATION:

AFLSA/JAJM indicated that with the exception of amending two specifications and deleting the assault specification, they recommend denial.  According to AFLSA/JAJM, the Article 15 was well founded and there was more than sufficient material to hold the applicant accountable for his actions.  Even though the applicant appealed a portion of the punishment, he did not appeal the reduction or the factual determination that punishment was appropriate.  In AFLSA/JAJM’s view, he should not be heard to do so now three-plus years after the fact.

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

AFPC/DPPRRP recommended denial.  AFPC/DPPRRP indicated that in accordance with Section 8961, Title 10, United States Code, the applicant was correctly retired in the grade of technical sergeant (TSgt), which was the grade he held on the date of his retirement.

According to AFPC/DPPRRP, the law which allows for advancement of enlisted members of the Air Force, when their active service plus service on the retired list totals 30 years, is very specific in its application and intent.  On 6 Jan 98, the SAFPC made the determination that the applicant did not serve satisfactorily on active duty in any grade higher than TSgt.  This determination is final for all purposes of law.  There are no other provisions of law that would allow for advancement of enlisted members.  All criteria of the pertinent laws (Sections 8961 and 8964) have been met in this regard and no error or injustices occurred in his retirement grade determination or advancement action.

A complete copy of the AFPC/DPPRRP evaluation, with attachments, 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 15 Nov 01 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.  Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  

	a.  The evidence of record reflects that as a result of nonjudicial punishment under Article 15, the applicant was reduced from the grade of master sergeant to technical sergeant.  Subsequent to his receipt of the Article 15, the Secretary of the Air Force found that he had not served satisfactorily in any higher grade and would not be advanced to the highest grade he held.  With the exception of the recommendation by JAJM to amend the portions of the Article 15 pertaining to the fifth and six specifications under Article 92 and to delete the portion of the Article 15 pertaining to the specification under Article 128, we find no evidence which has shown to our satisfaction that the Article 15 punishment was improper or an abuse of discretionary authority.  Therefore, we are not inclined to disturb the discretionary judgment of the commanding officer by removing the Article 15 from the applicant’s records.  Accordingly, the applicant’s request that his retirement pay grade be changed from E-6 to E-7 is not favorably considered.  

	b.  Because of the nonjudicial punishment under Article 15 that reduced him in grade, the applicant has had to retire in the grade of technical sergeant rather than master sergeant.  As a result, it has already cost him $7,818 in retired pay since 1998.  Excluding any cost of living increases that he may be entitled to, he will lose over $10,000 by the time he reaches 30 years of service, and more than $60,000 over a normal lifetime.  Furthermore, we note that the applicant had an outstanding Air Force career and prior to the Secretarial finding, with the exception of the infractions which led to the imposition of the Article 15, he had performed his duties faithfully and well in the grade of master sergeant for eight years.  In view of all these considerations, we believe that the Article 15, which is intended to be corrective in nature, was sufficient punishment for the applicant’s misconduct.  Therefore, to not allow the applicant to at least advance to the highest grade he held after he completes the required service, would, in our view, be excessively harsh, and therefore, unjust.  Such action, in our view, would be proper and fitting relief.  Further, we accept JAJM’s recommendation to amend two specifications under Article 92 and to delete one specification under Article 128.  Accordingly, we recommend that the applicant’s records be corrected as set forth below.

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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 portion of the nonjudicial punishment under Article 15, imposed on 27 Oct 97, pertaining to the fifth specification under Article 92 be amended to read “on divers occasions between on or about 10 Oct 95,” rather than “1 Jan 93.”

	b.  The portion of the nonjudicial punishment under Article 15, imposed on 27 Oct 97,  pertaining to the sixth specification under Article 92 be amended to read “on divers occasions between on or about 10 Oct 95,” rather than “1 Aug 95.”

	c.  The portion of the nonjudicial punishment under Article 15, imposed on 27 Oct 97, pertaining to the specification under Article 128 be deleted.

	d.  The Secretary of the Air Force found that he served satisfactorily in the higher grade of master sergeant (E-7) within the meaning of Section 8964, Title 10, United States Code, and directed the member’s advancement to that grade on the retired list effective the date of completion of all required service.

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                                                                                      The following members of the Board considered this application in Executive Session on 9 Jan 02, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

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

     Exhibit A.  DD Form 149, dated 29 Jan 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 18 Sep 01.
     Exhibit D.  Letter, AFPC/DPPRRP, dated 13 Nov 01, w/atchs.
     Exhibit E.  Letter, SAF/MRBR, dated 15 Nov 01.

                                   
                                   Panel Chair

AFBCMR 01-00307

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 portion of the nonjudicial punishment under Article 15, imposed on 27 Oct 97, pertaining to the fifth specification under Article 92 be amended to read “on divers occasions between on or about 10 Oct 95,” rather than “1 Jan 93.”

				b.  The portion of the nonjudicial punishment under Article 15, imposed on 27 Oct 97,  pertaining to the sixth specification under Article 92 be amended to read “on divers occasions between on or about 10 Oct 95,” rather than “1 Aug 95.”

				c.  The portion of the nonjudicial punishment under Article 15, imposed on 27 Oct 97, pertaining to the specification under Article 128 be deleted.

				d.  The Secretary of the Air Force finds that he served satisfactorily in the higher grade of master sergeant (E-7) within the meaning of Section 8964, Title 10, United States Code, and directs the member’s advancement to that grade on the retired list effective the date of completion of all required service.

                                                                           
                                                                           Director
                                                                           Air Force Review Boards Agency