RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00406
		INDEX CODE:  126.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  The punishment imposed upon him under Article 15, Uniform Code of Military Justice (UMCJ), dated 23 June 2000 be removed.

2.  He be reinstated to the grade of staff sergeant (SSgt) (E-5), with the original date of rank of 1 December 1997, and with back pay.

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APPLICANT CONTENDS THAT:

On 23 May 2000, he was served an Article 15 with a suspended reduction to the rank of senior airman.  It was to have a Termination Date of 22 November 2000.  Later he was called into the 1st Sergeant’s office and was given a paper that had a vacation of suspended reduction, but it states that on 19 May 2000 he did deceive the Shop Chief at Kunsan AB.  He did not know anything about this until he was in the Shirt’s office.  The 1st Sergeant told him that he could not reply to this action until 4 months had passed to allow time for him to be a good troop.  The date that is in question is before he received his suspended reduction and therefore is not a valid reason.  He has checked his U.I.F. along with his personnel records and there is no record of any letter’s of counseling or any letters of reprimand stating that he had deceived the Shop Chief.

The 4 months that would have passed by put him into September, which was when he PCS’d from Kunsan AB, Korea back to the USA.  He took 30 days leave enroute and arrived at Dyess AFB, TX in late October.  His household goods arrived just before Christmas so he waited until after all the holidays to bring this up to the Area Defense Counsel’s attention.  He was then told to type out all the circumstances and how it happened.

He states that he is approaching his high year of tenure for senior airman in August, and the result of this board will have an important decision as to whether or not he is allowed to stay in the USAF.  In his almost 12 years of active duty he feels as though he has helped out many new airmen coming into today’s Air Force and would like to continue this.  He is proud to be a member of the world’s top fighting force and feels, if given the chance to prove this, he could make up for this injustice in leaps and bounds.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of senior airman.

On 4 May 2000, applicant was served with an Article 15 for violating Article 121 of the Uniform Code of Military Justice (UCMJ), specifically for larceny.  On 9 May 2000, applicant accepted nonjudicial punishment proceedings in lieu of trial by court-martial.  He consulted a lawyer, made a personal presentation before his commander and submitted a written presentation.  On 23 May 2000, applicant’s commander imposed punishment consisting of a one stripe reduction, forfeiture of $150 pay per month for two months, seven days  extra duty and a reprimand.  The reduction in grade was suspended for six months.  The applicant did not appeal the punishment.  On 19 June 2000, the applicant was given notice of his commander’s intent to vacate the suspended portion of the Article 15 based upon misconduct committed by the applicant.  The misconduct that formed the basis of the vacation was a false official statement, in violation of Article 107, UCMJ, made on 19 May 2000.

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AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division, AFLSA/JAJM, reviewed the application and states that it is not clear from the applicant’s petition whether he considers the original Article 15 or the vacation or both to be an injustice.  As to the original Article 15 action, the applicant provided no additional information or evidence to substantiate the allegation of injustice.  The applicant presented matters to the commander and it is clear from the reprimand administered as part of the punishment that the commander did not believe the applicant.  The commander was in the best position at the time to assess the credibility and weight to be given to the evidence before him and concluded adversely to the applicant.  There is no basis in law or fact to conclude the commander’s imposition of punishment was clearly erroneous or unjust.

Notwithstanding the appropriateness of the original Article 15 action, the vacation action is erroneous and should be set-aside.  The Manual for Courts-Martial, Part V, Nonjudicial Punishment Procedure, paragraph 6a(5), indicates that vacation of suspension may be based only on a violation of the conditions of suspension which occurs within the period of a suspension.  The punishment and suspension went into effect on 23 May 2000.  The misconduct that forms the basis of the vacation action occurred on 19 May 2000.  Although this misconduct could have been the basis for a new nonjudicial punishment action, it was not properly the basis for the vacation action.  It is clear that this is an error.

The applicant has provided no evidence of a clear error or injustice related to the initial, 4 May 2000, nonjudicial punishment proceedings.  They recommend the Board deny that portion of the applicant’s request to have the original nonjudicial punishment action removed from his records.  However, they recommend the 19 June 2000 vacation action be removed from the applicant’s record and that all rights affected by the vacation action be restored.

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

The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed the application and states that if the Board voids the Article 15 or removes the vacated action, the date of rank and effective date for staff sergeant would revert to the original date of          1 December 1997.

The applicant received a referral EPR closing 1 June 2000 with an overall rating of “2”.  The referral EPR would have rendered him ineligible for promotion consideration in accordance with AFI 36-2502, Airman Promotion Program, Table 1.1, Rule 22 for the 00E6 cycle.  Promotion eligibility is regained only after the member receives an EPR with a rating of “3” or higher that closed out on or before the Promotion Eligibility Cutoff Date (PECD) for the next cycle.  The PECD for the next cycle, 01E6, was 31 December 2000.  As a matter of information, the applicant would not have been selected for the 00E6 cycle had he been eligible.  Selections were made on 8 June 2000, he was reduced to SrA on   23 May 2000, and received the referral EPR closing 1 June 2000.  He would have missed selection for the 00E6 cycle by 70.50 points had he been considered.

If the AFBCMR sets aside the Article 15 or the vacated action which resulted in the reduction, the applicant will not be entitled to supplemental promotion consideration for the 01E6 cycle because he received a referral EPR closing 1 June 2000.  In order for the applicant to be eligible for supplemental consideration for the 01E6 cycle, the AFBCMR would have to void the referral report or upgrade the overall rating to a “3” or higher and remove the portion of the report that makes it a referral, providing he is otherwise eligible and recommended by his commander.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 June 2001, a complete copy of the Air Force evaluation was forwarded to applicant for review and response within 30 days.  As of this date, no response has been received by this office.

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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 probable error or injustice warranting removal of the Article 15 be removed from his records.    After reviewing the evidence of record, we find no evidence of error or injustice related to the nonjudicial punishment proceedings.  In absence to the evidence to the contrary, we find no compelling basis upon which to recommend removal of the Article 15, dated 23 May 2000, from his records.

4.  Notwithstanding the above determination, we note that the Associate Chief, Military Justice Division, indicates that the vacation action is erroneous and should be set aside.  In this respect, they note that his misconduct occurred before the contested Article 15 was issued.  Therefore, to remove any possibility of injustice to the applicant, we recommend that the 19 June 2000 vacation action be removed from the applicant’s record and that all rights affected by the vacation action be restored.

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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 the 19 June 2000 vacation of the suspended portion of the punishment imposed on the applicant under Article 15, Uniform Code of Military Justice (UCMJ) on 23 May 2000 which provided for reduction in grade from staff sergeant (E-5) to senior airman (E-4) be set aside and all rights, privileges and property of which he may have been deprived be restored.

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The following members of the Board considered this application in Executive Session on 29 August 2001, 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 5 Feb 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 18 Apr 01.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 17 May 01, w/atch.
   Exhibit E.  Letter, AFBCMR, dated 15 Jun 01.

                                   
                                   Panel Chair

AFBCMR 01-00406
INDEX CODE:  126.00

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 the 19 June 2000 vacation of the suspended portion of the punishement imposed on the applicant under Article 15, Uniform Code of Military Justice (UCMJ) on 23 May 2000 which provided for reduction in grade from staff sergeant (E-5) to senior airman (E-4) be, and hereby is, set aside and all rights, privileges and property of which he may have been deprived be restored.

		
		Director
		Air Force Review Boards Agency