RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01241
		INDEX CODE:  126.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15, Uniform Code of Military Justice (UCMJ), dated 8 May 1998 be set aside.

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APPLICANT CONTENDS THAT:

He has been in the Air Force for over 17 years and has endured all that has been done to him.  His only mistake was not admitting his guilt to his commander at the time of the incident.  He has since admitted to taking the $100.00 from the ATM to his commander.  At the time of the incident he had no premeditated intention of stealing any money from the ATM, he was only interested in withdrawing money from his account.

At the time of his crime he did not admit any guilt because his defense attorney advised him not to say anything until she had seen the evidence against him.  A day prior to the meeting with his commander he met with his attorney to discuss the evidence against him and was informed that she had not yet seen any evidence for his case.  When he questioned her about why she had not yet seen any evidence for his case she became very defensive.  He released her as his attorney and hired a civilian attorney.  He is not trying to excuse his actions and he knows he should have admitted his guilt.  Since receiving the Article 15, he has been allowed to retest for staff sergeant one time to remain in the Air Force.  After 20 years of service he will retire as a staff sergeant.  This is not fair.  This is not supposed to be a one mistake Air Force.

In support of his request, he submits a personal statement, the Article 15, dated 16 June 1998, 8 character reference letters, and other documentation.

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 23 April 1998, applicant was notified of his commander's intent to impose nonjudicial punishment upon him for larceny (a $100.00 theft from another individual’s ATM account).

On 4 May 1998, after consulting with counsel, applicant waived his right to a trial by court-martial, requested a personal appearance and did not submit a written presentation.

On 8 May 1998, he was found guilty by his commander who imposed the following punishment:  Reduction to the grade of senior airman, with a new date of rank of 8 May 1998, a forfeiture of $617.00 pay per month for two months, and 45 days extra duty.

Applicant did appeal the punishment; however, the appeal was denied on 7 June 1998.  The Article 15 was filed in his Unfavorable Information File (UIF).

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AIR FORCE EVALUATION:

The Associated Chief, Military Justice Division, AFLSA/JAJM, reviewed the application and states that the applicant was represented by qualified military defense counsel and then by civilian defense counsel of his own choice throughout the Article 15, UCMJ proceedings before his commander and during the appeals process.  There is no evidence that the applicant was misled concerning any aspect of the proceedings (including potential punishment).  After reviewing the evidence, the commander found the applicant committed the offenses alleged.  Further, the applicant has admitted his guilt herein.

Applicant asserts he suffered double punishment because he was denied a pending promotion to technical sergeant following the nonjudicial punishment action.  They defer to Personnel to address any specific issues as to that administrative action governed by AFI 36-2502, Airman Promotion Program.  They do note however, that Air Force promotion policy is to select individuals for promotion based on potential to serve in the next higher grade.  Only the best should be promoted due to the limited vacancies in the higher grades.  The responsibility for a quality enlisted force rests with the prudent judgement of the commanders who make recommendations for promotion.  Normal practice is to withhold promotion while an individual is under investigation for an offense.  In this case, the commander concluded that the applicant’s conduct fell far short of the standards the military demands of its members, particularly those trusted to serve as noncommissioned officers.  As the commander concluded he was not fit to remain a staff sergeant, loss of his potential promotion to the next higher grade was a logical and inevitable consequence of his theft.

Given the degree to which the applicant failed to meet his responsibilities as an NCO, his loss of NCO status by reduction to senior airman and other punishments were well within legal limits and appropriate for the offenses committed.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment proceedings.

Set aside should only be utilized where, under all the circumstances of the case, the punishment has resulted in a clear injustice.  That 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.  They recommend the Board deny the applicant’s request.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and states that the evaluation indicates he was represented by a qualified military defense attorney and by a civilian attorney throughout the Article 15 proceedings.  Neither attorney had received any of the evidence against him and the only advice the military attorney gave him was to not say anything at all; nor did she make an appearance before his commander.  This is why he released her to hire a civilian attorney.  The civilian attorney he hired did not make an appearance before his commander and only wrote a letter asking for leniency.  To say that he was fairly represented is quite debatable.  He has never been through an Article 15 proceeding and was quite unfamiliar with the process.  Had he been more familiar and understood that nonjudicial punishment means the commander has complete control over the punishment imposed set within the guidelines established by AFI 51-202, he would have definitely done things differently.

As far as the commander reducing his rank to senior airman was because he felt he was not fit to remain a NCO, then he should have been removed from a leadership position, which he was not.  He maintained the same job and responsibilities as he did prior to the punishment.  He still supervised the same number of people.  He is not trying to justify what he did was right, he is trying to put this incident into perspective.  His previous commander took away eleven years of his career.  The effect that this has on his career is profound.  He has lost a huge amount of time-in-grade and a considerable sum of money.  He does not understand how a mistake such as this, that couldn’t possibly be perceived as premeditated, could warrant this type of punishment.

Applicant's complete response is attached at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

The Chief, Inquiries/AFBCMR Section, Enlisted Promotion & Military Testing Branch, AFPC/DPPPWB, also reviewed the application and states that the applicant was tentatively selected for promotion to technical sergeant (TSgt) during cycle 97E6 per Promotion Sequence Number (PSN) 6611.0 which would have been incremented 1 May 1998.  The projected promotion was placed in a withhold status.  He was reduced from staff sergeant (SSgt) to senior airman (SrA) effective 8 May 1998 and again promoted to SSgt on 1 August 2000.

A review of the applicant’s records reflects that he was tentatively selected for promotion to TSgt during cycle 97E6 as indicated above.  However, the Headquarters Air Force (HAF) Personnel Data System (PDS) indicates his Promotion Eligibility Status (PES) code was updated in April 1998 to a “B.”  This indicated a member whose promotion is in a withhold status while under investigation (military/civil) in accordance with AFI 36-2502, Airman Promotion Program, Table 1.2, Rule 6.  The commander was within his authority to withhold the promotion until the investigation or inquiry was completed.  After reviewing the evidence, the commander determined the applicant committed the alleged offense.  On 8 May 1998, the applicant received the Article 15 with the reduction to the grade of SrA.  It rendered him ineligible for promotion to TSgt.  AFLSA/JAJM has reviewed the case and determined the evidence presented by the applicant is insufficient to mandate the relief requested.  They defer to their recommendation.  However, should the AFBCMR void the Article 15, it could reinstate his promotion to TSgt for cycle 97E6.  The applicant would have been promoted 1 May 1998, provided he was otherwise eligible and recommended by his commander.  They recommend the applicant’s request to have his promotion reinstated to TSgt be denied.  The Commander was acting within his authority when he elected to withhold the promotion until an investigation was completed and imposing punishment under Article 15 resulting in demotion.

A complete copy of their evaluation, with attachment, is attached at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 31 August 2001, a copy of the Air Force evaluation was forwarded to the applicant for review and response within thirty (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 the punishment imposed upon him under Article 15, Uniform Code of Military Justice (UCMJ), dated 8 May 1998 be set aside.  Applicant’s contentions are duly noted; however, we find no evidence that the Article 15 action taken against the applicant was in error or unjust.  In this respect, the applicant was offered and accepted nonjudicial punishment for larceny for which he admitted his guilt.  Therefore, we believe the commander was in the best position to weigh the evidence in the case and judge the applicant’s credibility and demeanor throughout the proceedings before rendering his decision.  There is no indication the commander abused his discretionary authority when assessing the merits of the case.  In view of our determination that the Article 15 was appropriate, the applicant’s contention that it was unfair that he lost his pending promotion is a moot issue.  In this regard, the applicant rendered himself ineligible for promotion when he received the Article 15 with its reduction in grade to airman first class.  In view of the foregoing, we agree with the opinions and recommendations of the Air Force, in particular, the Associate Chief, Military Justice Division, and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  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 probable 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 this application in Executive Session on 4 October 2001, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 February 2001, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 20 July 2001.
   Exhibit D.  Letter, SAF/MIBR, dated 3 August 2001.
   Exhibit E.  Letter, Applicant, dated 24 August 2001, w/atchs.
   Exhibit F.  Letter, AFPC/DPPPWB, dated 23 August 2001, w/atch.
   Exhibit G.  Letter, SAF/MIBR, dated 31 August 2001.

					   
					   Panel Chair