RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  02-00893
		INDEX CODE:  131.00
		COUNSEL:  NONE

  						HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His pay grade of E-7 (master sergeant) be reinstated.

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APPLICANT CONTENDS THAT:

He was told by his previous commander that it was his intent to give him his stripe back before the four months time limit had elapsed, if he proved worthy.  

Unfortunately, he was moved to a job other than the one he had planned or anticipated.  He spoke to his new commander about the possibility of getting his previous rank reinstated, but he was only a major and therefore unable to give him his stripe back.  Through correspondence with his former commander, a package for clemency was staffed to his commander’s boss and denied.  He inquired as to the reasons and was told no compelling information was offered to go against the previous appellate authority decision.

In support of his appeal, applicant provided a letter from his former commander; a copy of his Article 15, dated 30 May 01; a copy of a letter from the Area Defense Counsel; an email from a co-worker and copies of the applicant’s letters to his commander and the Appellate Authority.

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

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STATEMENT OF FACTS:

Based on available records, applicant’s total active federal military service date (TAFMSD) is 18 Aug 81.  His most recent reenlistment was on 20 Oct 00 for a period of four years.  His expiration term of service (ETS) and date of separation (DOS) is 19 Oct 04.  He is currently serving in the grade of technical sergeant (TSgt/E-6) with an effective date and date of rank (DOR) of 14 Jun 01.

On 19 Jan 99, the applicant received Article 15 punishment for being derelict in the performance of his duties on or about 9 Oct 98 to on or about 12 Dec 98, in that, he willfully failed to remove his daughter from the limits of XXXX AFB and by wrongfully allowing his daughter to reside with him in his assigned on-base quarters and work at the XXXX AFB Commissary.  His punishment consisted of a suspended reduction to the grade of technical sergeant and forfeiture of $250 pay.

While serving in the grade of master sergeant and assigned to the wing safety office, the applicant was offered nonjudicial punishment on 30 May 01 for being derelict in his duties on 28 Apr 01 by willfully failing to respond to an accident scene to take photos, prepare required reports, and make necessary notifications, as it was his duty to do.

On 6 Jun 01, after consulting with counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He submitted a written presentation to his commander.  On 14 Jun 01, his commander determined that the applicant had committed the offense alleged and imposed punishment consisting of a reduction to the grade of technical sergeant.  The applicant appealed the punishment and on 20 Jun 01, his appeal was denied.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the case file and recommended denial.  They provided the following facts on the case:

JAJM indicates that the applicant contends that he was told by his commander when he took the stripe he intended to give the applicant his stripe back before the four-month time limit if he proved himself worthy.  During this four-month period the applicant was moved to another job under a new commander.  His new commander was a major and did not have authority to give the applicant his stripe back.  His new commander told the applicant that he would recommend to the next superior commander to give the applicant his stripe back toward the end of the four-month period if the applicant did a good job and stayed out of trouble.  About three and a half months later, the applicant contacted his former commander and asked to get a recommendation from him regarding getting his stripe back.  His former commander sent an email to his current commander reminding him of the deadline.  The applicant approached his current commander about getting his stripe back.  His current commander asked the applicant to write a memo requesting clemency and to provide a list of bullet statements describing his on-the-job accomplishments over the past three months.  His commander said that he would present the information to his commander along with a recommendation. On about 25 Sep 01, the applicant submitted a formal request to get his stripe back.

On 14 Oct 01, the applicant’s commander told him his request for clemency was denied.  Applicant states that his commander told him that the request was denied because no compelling information was offered to go against the previous appellate authority decision.  The applicant wonders how the deciding commander could deny his request when he had never met him and he had recommendations from both his commander and the commander who took his stripe.  

JAJM states that nonjudicial punishment is permitted by Article 15, UCMJ (10 USC 815), and governed by the Manual for Courts-Martial (MCM) and Air Force Instruction 51-202.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Service members first must be notified by their commanders of the nature of the charged offense, the evidence supporting the offense, and of the commander’s intent to impose nonjudicial punishment.  The service member may then consult with a defense counsel to determine whether to accept nonjudicial punishment proceedings or demand trial by court-martial.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.

A member accepting nonjudicial punishment proceedings may have a hearing with the commander.  The member may have a spokesman at the hearing, may request that witnesses appear and testify, and may present evidence.  The commander must consider any information concerning the offense before imposing punishment.  Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander.  The appeal authority may set aside the punishment, decrease its severity, or deny the appeal.  Nonjudicial punishment does not constitute a criminal conviction.

The MCM provides several actions a commander may take to affect nonjudicial punishment previously imposed.  The commander may suspend, mitigate, remit or set aside the punishment.  Each action has a different impact and generally these options should be exercised within four months of the date of execution of the punishment.

The commander’s powers to suspend, mitigate, remit, or set aside nonjudicial punishment passes to his or her successor in command.  A commander cannot suspend, mitigate, remit, or set aside punishment under Article 15 unless the commander had the authority to impose that punishment.  If the commander did not have the authority to impose the punishment, as in this case, the immediate commander should recommend suspending, mitigating, remitting, or setting aside the action to the next superior commander who is empowered to impose such a punishment.

In this case, the applicant’s entreaties failed to convince the commander with the decision authority.  The commander considered the applicant’s inputs as well as the inputs of his former and current commander.  He determined that the applicant’s grade should not be restored.  While different commanders may come to a different conclusion, the commander’s decision is neither arbitrary nor capricious and should not be disturbed.  So long as that commander is lawfully acting within the scope of authority granted by law, that judgment should not be disturbed just because others might disagree.  A commander “on the scene” has the first-hand access to facts and a unique appreciation for the need of morale and discipline within the command that even the best-intentioned higher headquarters cannot match.

Reinstating applicant’s grade should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside his reduction to technical sergeant, and does not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.

A complete copy of JAJM’s evaluation, with attachment, is at Exhibit C.

HQ AFPC/DPPPWB states that JAJM reviewed this case and determined there are no legal errors requiring corrective action and concurred with their recommendation to deny.

The complete Air Force evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 4 Oct 02 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).

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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 error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions or his supporting documentation sufficiently persuasive to override the rationale provided by AFLSA/JAJM.  The evidence of record reflects that, after considering all matters presented by the applicant, his commander determined that he had committed the offense alleged, and made the decision to impose nonjudicial punishment under Article 15, UCMJ, resulting in his reduction in grade to technical sergeant.  The applicant’s commander with the decision authority considered the applicant’s inputs as well as the inputs of his former and current commander and determined that the applicant’s grade should not be restored.  The applicant now requests that his previous rank of master sergeant be restored.  However, we find no evidence to indicate that the commander’s assessment of his misconduct was unjust or disproportionately harsh given all the facts and circumstances of the case.  While different commanders might come to different conclusions, there is no evidence that the commander’s findings were either arbitrary or capricious, or should be disturbed.  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 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 AFBCMR Docket Number 02-00893 in Executive Session on 15 April 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Mar 02, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 4 Jun 02.
    Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 13 Sep 02.
    Exhibit E.  Letter, SAF/MRBR, dated 4 Oct 02.