RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 01-02323

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.	His rank of E-4 be reinstated.

2.	His former Air Force Specialty Code (AFSC) of 3P051 be reinstated.

3.	His Reenlistment Eligibility (RE) code of 4E be changed to allow his reentry.

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THE APPLICANT CONTENDS THAT:

The punishment of restriction to base, driver’s license revocation, and extra duty was punishment enough.

The applicant states that at the end of his enlistment, he was arrested for Driving While Intoxicated (DWI).  As a result, he could not reenlist, his AFSC was changed to 3P031, and the majority of his college credits were taken away.  Prior to this incident his record was impeccable.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6 December 1995 for a period of four years.

On 22 July 1999, the commander notified the applicant of his intent to impose nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 111 (i.e., drunken or reckless driving) and Article 92 (i.e., failure to obey an order or regulation).  Specifically, for physically controlling a vehicle while drunk on 10 July 1999, and being derelict in the performance of his duties in that he willfully failed to refrain from drinking alcoholic beverages while under the age of 21.  After consulting legal counsel, the applicant waived his right to a trial by court-martial and accepted the nonjudicial punishment.  After considering the applicant’s oral and written submissions, on 30 July 1999, the commander determined that he did commit one or more of the alleged offenses and imposed the nonjudicial punishment. The applicant appealed the punishment; however, his appeal was denied.  The punishment consisted of reduction to the grade of airman, restriction to McConnell AFB for 45 days, and 45 days of extra duty. However, the reduction below the grade of airman first class (E-3) was suspended until 5 December 1999, at which time it would be remitted without further action, unless sooner vacated.  

The suspended reduction to airman was vacated on 29 November 1999, by the commander, based on applicant’s intent to deceive him by making a false official statement that he had been in his room alone from dusk on 14 November 1999 through the morning of 15 November 1999.

The applicant was released from active duty on 5 December 1999 and transferred to the Air Force Reserve under the provisions of AFI 36-3208 (Completion of Required Active Service) and was assigned an RE code of 4E (i.e., Grade is airman first class or below and airman completed 31 or more months), with his service characterized as honorable. He completed four years of active service, with 2 months and 18 days of prior inactive service.

Applicant’s performance profile follows:

         PERIOD ENDING                 OVERALL EVALUATION

           15 Jul 97                           4
            1 Apr 98                           5
            1 Apr 99                           5

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AIR FORCE EVALUATIONS:

AFPC/DPPPWB recommends the application be denied. AFPC/DPPPWB states, in part, that at the time of the applicant’s separation, his grade should have reflected the grade of airman (E-2) with an effective date of 29 November 1999, rather than airman first class (E-3), as indicated on his separation certificate.  If the Board voids the Article 15, the applicant’s date of rank to senior airman (E-4) was 6 April 1968.

The AFPC/DPPPWB evaluation, with attachments, is at Exhibit C.

AFPC/DPPAC recommends the application be denied. AFPC/DPPAC states, in part, that a thorough review of the applicant’s personnel records surfaced no evidence that his primary AFSC was downgraded in accordance with AFI 36-2101.  Therefore, the skill level reflected in item 11 of the DD Form 214 should be 3P051, rather than 3P031.

The AFPC/DPPAC evaluation is at Exhibit D.

AFPC/DPPAE recommends the application be denied. AFPC/DPPAE states, in part, that the applicant’s RE code assigned at the time of his separation is correct.  However, if the Board recommends the applicant’s rank of E-4 be restored, they recommend changing his RE code to 3K (i.e., Reserved for use by HQ AFPC or the AFBCMR when no other reenlistment eligibility code applies or is appropriate).

The AFPC/DPPAE evaluation, with attachments, is at Exhibit E.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant on 12 October 2001 for review and response within 30 days.  However, as of this date, no response has been received by this office.

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ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied. AFLSA/JAJM states, in part, that by electing to resolve the allegation in the nonjudicial forum, the applicant placed the responsibility to decide whether he had committed the offenses with his commander.  The commander weighed all the evidence, including the credibility of the various witnesses, and made his decision.  The applicant has failed to demonstrate that a clear injustice occurred in his case and has provided no evidence of a clear error or injustice related to the nonjudicial punishment proceedings.  The original punishment imposed on the applicant was lawful and, given the serious nature of the misconduct, appropriate for the offenses committed.

The AFLSA/JAJM evaluation is at Exhibit H.

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 1 February 2002 for review and response within 30 days.  However, 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant amending the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, in Item 11, to reflect Air Force Specialty Code (AFSC) 3P051.  In this respect, we note that there is no evidence that the applicant’s AFSC was downgraded in accordance in AFI 36-2101, Chapter 4.  In view of this, the appropriate office of the Air Force has recommended the skill level reflected on his DD Form 214 be changed to 3P051.  We agree.  Therefore, we recommend the applicant’s records be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant reinstatement of the applicant’s former rank of E-4 and upgrade of his RE code.  We find no evidence of error in this case and after thoroughly reviewing the documentation applicant submitted in support of his appeal, we do not believe he has suffered from an injustice.  In this respect, we note the following:

	a.	Evidence has not been presented which would lead us to believe that the nonjudicial punishment, initiated on 22 July 1999 and imposed on 30 July 1999, was improper.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence indicates that, during the processing of this Article 15 action, the applicant was afforded every right to which he was entitled.  He consulted counsel, waived his right to demand trial by court-martial, and submitted oral and written matters for review by the imposing commander.  After considering the matters he raised, the commander determined that he had committed “one or more of the offenses alleged” and imposed punishment.  Furthermore, he does not dispute the charges against him, only that the resultant punishment was excessive.

	b.	The Secretary of the Air Force has statutory authority to promulgate rules and regulations governing the administration of the Air Force.  In the exercise of that authority, he has determined that members separated from the Air Force would be furnished an RE code predicated upon the quality of their service and circumstances of their separation.  At the time an RE code is assigned, it reflects the Air Force position regarding whether or not, or under what circumstances, the individual should be allowed to reenlist.  There has been no showing that the Secretary abused this discretionary authority or that the particular RE code assigned was contrary to the prevailing directive.  Furthermore, the applicant was issued an RE code that can be waived for prior service enlistment consideration, provided he is otherwise qualified.  Whether or not he is successful will depend on the needs of the service.  Therefore, we find no basis upon which to recommend favorable consideration of his request for reinstatement of his former rank of E-4 and upgrade of his RE code.

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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 his DD Form 214, Certificate of Release or Discharge from Active Duty, be amended in Item 11, to reflect Air Force Specialty Code (AFSC) 3P051, rather than 3P031.

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The following members of the Board considered Docket Number 01-02323 in Executive Session on 14 March 2002, under the provisions of AFI 36‑2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Aug 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPWB, dated 6 Sep 01, w/atchs.
    Exhibit D.  Letter, AFPC/DPPAC, dated 18 Sep 01.
	Exhibit E.  Letter, AFPC/DPPAE, dated 5 Oct 01.
	Exhibit F.  Letter, SAF/MRBR, dated 12 Oct 01.
	Exhibit G.  Letter, AFBCMR, dated 31 Oct 01.
	Exhibit H.  Letter, AFLSA/JAJM, dated 22 Jan 02.
	Exhibit I.  Letter, AFBCMR, dated 1 Feb 02.