RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00757 (Case 2)
		INDEX CODE:  133.00, 133.03

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The 1998 Article 15, UCMJ, nonjudicial punishment imposed, demotion from master sergeant (E-7) to technical sergeant (E‑6), be set aside; and, that his retired grade be immediately restored to E‑7.

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APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to be in error or unjust and the evidence submitted in support of the appeal are at Exhibit A.

In support of his request, the applicant submits a personal statement, a copy of the Article 15 and additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is 26 Jun 78.  He was progressively promoted to the grade of master sergeant (E-7).  However, pursuant to an Article 15, the applicant was reduced to the grade of technical sergeant (E-6), with an effective date and date of rank (DOR) of 10 Feb 98.

On 9 Sep 83, the applicant was notified of his commander's intent to impose nonjudicial punishment under Article 15, UCMJ.  The misconduct applicant had allegedly committed was for assaulting his then wife by grabbing her by the arms and pushing her, on or about 27 Aug 83, in violation of Article 128, UCMJ.  Applicant elected nonjudicial punishment under Article 15.  The applicant consulted a lawyer, waived his right to demand trial by court-martial and accepted nonjudicial punishment.  After considering all matters presented to him, the commander found that the applicant did commit one or more of the offenses alleged.  The commander imposed punishment consisting of a suspended reduction in grade from sergeant (E-4) to airman first class (E-3) and forfeiture of $100.00 for two months.  The applicant appealed the nonjudicial punishment on 11 Oct 83.  His request was denied on 28 Oct 83.

On 30 Jan 98, the applicant was notified of his commander's intent to impose nonjudicial punishment under Article 15, UCMJ.  The misconduct applicant had allegedly committed was for failing to obey a lawful order, recklessly operating a motor vehicle while drunk, assaulting his estranged wife and for threatening to kill his wife, and drunk and disorderly behavior which brought discredit upon the armed forces, in violation of Articles 92, 111, 128 and 134.  Apparently, after considering all matters presented to him, the commander found that the applicant did commit one or more of the offenses alleged.  The commander imposed punishment of a reduction to the grade of technical sergeant (E-6).  A copy of the completed Record of Nonjudicial Punishment Proceedings, AF Form 3070, is unavailable.

On 31 Aug 98, the applicant was relieved from active duty under the provisions of AFI 36-3202 (Maximum Service or Time in Grade) and voluntarily retired on 1 Sep 98.  He had completed a total of 20 years, 2 months and 5 days of active service for retirement and was serving in the grade of technical sergeant (E‑6) at the time of retirement.  He received an RE Code of 2V, which defined means "Applied for retirement, or retirement has been approved."

By order of the Secretary of the Air Force, dated 7 Jul 98, the Secretary found that the applicant did serve satisfactorily in the grade of master sergeant (E-7) and directed the applicant’s advancement to that grade on the Retired List effective the date of completion of all required service.

Effective 26 Jun 08, the applicant will be advanced to the grade of master sergeant (E-7) on the USAF Retired List by reason of completing a total of 30 years of active service plus service on the Retired List on 25 Jun 08.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

HQ AFLSA/JAJM recommends the application be denied.  JAJM stated that no record of the Article 15, UCMJ, nonjudicial punishment proceedings can be located for review.  The applicant provided a partially completed copy of the AF Form 3070, Record of Nonjudicial Punishment Proceedings, served on him on 4 Feb 98.  The copy provided includes the charges but does not reflect the subsequent course of the action.  The applicant claims he was found guilty of some but not all the offenses and was demoted one rank to E-6.  JAJM indicated that the applicant does not contend he was denied procedural or substantive due process.  He does not contend that any error or irregularity occurred in the nonjudicial punishment proceedings or the appellate process.  Essentially, he maintains that his commander incorrectly evaluated the evidence against him and then imposed a disproportionate and unjust punishment for the offenses the commander determined the applicant had committed.

JAJM stated that since a completed copy of the Article 15 action cannot be located, it is impossible at this time to directly review the sufficiency of the evidence against the applicant.  The applicant does not claim, however, to have been denied his procedural rights.  He apparently availed himself of his right to counsel and presented evidence in defense, extenuation or mitigation.  After reviewing the evidence before him, the commander determined that there was sufficient evidence that the accused committed one or more of the offenses charged.   His decision was subject to appeal by the applicant and has withstood the scrutiny of appellate and legal review.  Absent evidence to the contrary (and none is provided by the applicant), the Article 15 action is entitled to a presumption of regularity.  JAJM indicated that, while different fact finders may have come to a different conclusion, there is no evidence that the commander’s findings were either arbitrary or capricious or should, at this late date, be disturbed.  The mere fact that the applicant disagrees with the commander’s assessment of the evidence certainly does not rise to that level.  Further, the applicant’s naked assertion that his commander and “senior leadership” were in some way inattentive to his case is contradicted by the fact that, according to the applicant, he was found to have committed some offenses but not others.  The burden of proof rests with the applicant to show the commander erred.  In JAJM’s opinion, he has failed to produce any evidence to carry that burden.

JAJM stated that the punishment imposed by the commander was well within the parameters set out in applicable instructions.  On its face, there is no evidence that it was unjust or disproportionately harsh given all the facts and circumstances before the commander.  Even if, as the applicant claims, he was found only to have committed the alcohol-related offenses, those offenses standing alone are certainly severe enough to warrant the punishment imposed.

JAJM indicated that a set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is not sufficient to mandate the relief requested, and does not demonstrate an equitable basis for relief.  To the extent that any relief is warranted, the applicant has already received it, in that his former rank of master sergeant (E-7) will be restored at his thirty-year service mark by Order of the Secretary of the Air Force.

The HQ AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 9 August 2002 for review and response.  As of this date, no response has been received by this office (Exhibit D).

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case.  However, we agree with the opinion and recommendation of the appropriate Air Force office and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In view of the above and absent persuasive 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 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 24 September 2002, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number 02-00757.

   Exhibit A.  DD Form 149, dated 25 Feb 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFLSA/JAJM, dated 24 Jul 02.
   Exhibit D.  Letter, SAF/MRBR, dated 9 Aug 02.