RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  01-01609
			INDEX CODE:  112.05
	APPLICANT		COUNSEL:  JOSEPH W. KASTIL

			HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His court-martial punishment consisting of a reduction to staff sergeant (E-5) be set aside and that he be allowed to retire as an technical sergeant (E-6) with back pay and allowances.
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APPLICANT CONTENDS THAT:

He received a sentence that was clearly unequal and unjust as compared to others who were punished in a series of promotion test compromises, and that he was the only one who lost a stripe that had been honestly earned.  He was the first to be tried with six others subsequently charged.  Two were acquitted of the cheating charge, one was granted a discharge in lieu of court-martial, one was sentenced to a one grade reduction, which was suspended, one received a one grade reduction, 15 days confinement and hard labor for 15 days.  The remaining staff sergeant received a one grade reduction, two months confinement and forfeiture of $200 per month for five months.

The two staff sergeants, whose reductions in rank were approved, obtained their rank of staff sergeant by virtue of cheating for which they were punished.  They suffered no net loss of rank.  However, he suffered a net loss of one grade since his rank of technical sergeant was not achieved by virtue of cheating.  He, citing various military appellate court decisions, avers that the disparity of punishment was beyond that permitted by the needs of justice.

In support of his submission, the applicant submits a brief prepared by counsel, copies of several Enlisted Performance Reports (EPRs) and a copy of a letter from his former commander.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C, D and E.
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AIR FORCE EVALUATION:

AFLSA/JAJM states the applicant, while assigned at Yokota AB, Japan, was charged with one specification of violating AFI 36-2605, paragraph 5.9.2, by reviewing or having access to illegal study materials that revealed the specific content of actual or suspected test material without proper authority, in violation of Article 92, Uniform Code of Military Justice (UCMJ).  On 13 October 1998 the charges were referred to a special court-martial.  He was found guilty and sentenced to confinement for one month, 45 days of hard labor without confinement and reduction to the grade of Senior Airman (SrA),E-4.  In a pre-trial agreement between the applicant and the convening authority, the latter agreed not to approve a bad conduct discharge, or any confinement in excess of four months.  In addition, the agreement provided that the convening authority could approve a reduction to E-5, but would suspend any reduction below that grade.  Accordingly, on 11 December 1998 the convening authority approved the sentenced adjudged except for the reduction from SSgt to SrA which was suspended for twenty-one months.   The record of trial was reviewed by 5 AF/JA and found to be legally sufficient

JAJM states the applicant asserts that there existed a disparity in the sentence received by him and others who were punished in a series of promotion test compromises.  The applicant cited two cases, U.S. v. Kent and U.S. v. Olinger, in support of his assertion.  The burden of demonstrating that any cited cases are closely related to his case and that the sentences are “highly disparate” lies with the applicant.  JAJM indicates he has failed to show that the above cases are closely related except for the general nature of the charges.  Secondly, in the two cases cited for the purpose by the applicant, the most severe punishment was the same as that accorded him, a reduction in grade.  Therefore, he has failed to establish the most basic requirement for the relief requested, the highly disparate nature of the punishments.

JAJM indicates that the applicant’s argument seems to center around a belief that he earned his technical sergeant stripe honestly and it is unfair for the court-martial to take it away.  The court members were instructed that the sentence in the applicant’s case was a matter within their discretion.  They could adjudge any punishment authorized by the Manual for Courts-Martial (MCM), including the maximum punishment, any lesser punishment, or no punishment at all.  After considering the integrity offense the applicant committed, it is consistent that the members concluded he was not fit to be a noncommissioned officer and sentenced him to be reduced to the grade of E-4, senior airman.  JAJM states that it was only his bargain with the convening authority that his reduction below staff sergeant was suspended.  The applicant overlooks that the reductions imposed in the other cases he cites also rightly remove those individuals from the noncommissioned officer corps.  To answer the applicant’s question, “please treat me like everyone else.  That’s all I’m asking” - he has been.  He was sentenced to be reduced from the noncommissioned officer ranks.

JAJM concludes that the court-martial was the correct forum to deal with the applicant’s misconduct.  The applicant’s sentence was within legal limits for the offense committed.  His reduction in grade, among the other punishments, was appropriate considering the serious nature of the offense for which he was convicted.  He has failed to allege any injustice or error in his request.  Therefore, JAJM recommends the Board deny the applicant’s request.  AFLSA/JAJM complete evaluation, with attachments, is at Exhibit C.

In addressing the promotion and testing issues, AFPC/DPPPWB states that the applicant was court-martialed per Special Court-Martial Order Number 1, dated 11 December 1998.  The part of the sentence extending to his reduction from staff sergeant to senior airman was suspended for twenty-one months at which time it would be remitted without further action.  His new date of rank and effective date for staff sergeant was 24 November 1998.  He pled guilty to the charged offense prior to testing for the 97E7 cycle promotion to master sergeant for which he was a nonselect.  He retired 1 September 2000 in the grade of staff sergeant based on maximum length of service.  DPPPWB deferred to the recommendation of AFLSA/JAJM.  AFPC/DPPWB complete advisory is at Exhibit D.

With respect to the retirement issues, AFPC/DPPRRP indicates that in accordance with Section 8961, Title 10, United States Code (USC), the applicant was correctly retired in the grade of staff sergeant, which was the grade he held on the date of his retirement.  The law which allows for advancement of enlisted members when their active service plus service on the retired list totals 30 years, is very specific in its application and intent.  On 24 March 2000, the Secretary of the Air Force Personnel Council (SAF/PC) made the determination that the applicant did not serve satisfactorily on active duty in any grade higher than staff sergeant.  DPPRRP states that all provisions of the pertinent laws have been met, no injustices or irregularities occurred with the applicant’s retirement process, and he was correctly retired in the grade of staff sergeant.  AFPC/DPPRRP complete evaluation, with attachments, is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force Evaluations were forwarded to the applicant for review and response.  As of this date, this office has received no response (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.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case to include his contentions that there was a disparity in the sentence received by him and others who were punished in a series of promotion test compromises; that he earned his technical stripe honestly and it was unfair for the court-martial to take it away.  However, we agree with the opinion and recommendation of JAJM that the applicant’s sentence was within legal limits for the offense committed and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Applicant, in our opinion, has failed to substantiate that he has been the victim of either an error or an injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 8 January 2002, under the provisions of AFI 36-2603:

	Panel Chair
    Member
Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Jun 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 6 Sep 01, w/atchs.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 1 Oct 01.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 22 Oct 01, w/atchs.
    Exhibit F.  Letter, SAF/MIBR, dated, 26 Oct 01.