RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  02-02126
	INDEX CODE 126.02  126.04 111.02  111.05
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 imposed on 11 May 00 be voided, his record be  expunged, and leave be restored to his account.

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APPLICANT CONTENDS THAT:

His Leave and Earnings Statement (LES) reflects leave was effective and filled during dates issued.  This incident has ruined his career. His complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6 Jan 84 and was promoted to the grade of staff sergeant 1 Sep 91. During the period in question, the applicant was assigned to the 23rd MXS at Pope AFB, NC. According to the personnel data system, his Enlisted Performance Reports (EPRs) from 1995 through 24 Oct 01 reflect the following overall ratings: 4, 5, 5, 3, 3, 4, 2 (referral), and 4.

The applicant filled out a leave request on 11 Apr 00, which listed 17 Apr 00 and 25 Apr 00 as the first and last days of leave, respectively. However, he did not show for work on 14 Apr 00. According to a 20 Apr 00 letter from his supervisor, the applicant had filled out a leave form but failed to process the paperwork for leave starting on 17 Apr 00. The applicant had told him earlier that he was having trouble getting travel arrangements and wasn’t sure when exactly he was starting his leave. The supervisor had told him not to sit on the leave request and signed it to ensure there were no delays. On 14 Apr 00, the supervisor was told by another individual that the applicant had tried unsuccessfully to contact the supervisor to advise he was starting leave earlier on 14 Apr 00. The supervisor 
noticed the leave slip was still on the desk. The supervisor indicated in his statement that he did not give the applicant permission to leave early.  The matter was forwarded up the chain of command, whereupon the commander completed and signed a leave authorization form placing the applicant on leave from 14 Apr through 25 Apr 00. The applicant returned to his duty station on 27 Apr 00.

The applicant was offered nonjudicial punishment on 3 May 00 for having, without authority, absented himself from his place of duty from 14 to 16 Apr 00.  On 8 May 00, after consulting with counsel, the applicant waived his right to demand trial by court-martial, requested a personal appearance and submitted a written presentation. The applicant contended he informed the supervisor that he might have to leave early on 14 April 00 and was told there was no problem. He asserted he was not trying to “scam” the Air Force and, if he had been able to reach his supervisor the night before, the earlier leave date would have not been a problem. On 11 May 00, the commander determined that the applicant had committed the offense alleged and imposed punishment consisting of a suspended reduction to senior airman until 10 Nov 00, forfeiture of $192 in pay, and five days of extra duty.  The applicant’s appeal was denied on 22 May 00.

On 28 Nov 00, the EPR closing 24 Oct 00 was referred to the applicant. The overall rating was 2 (not recommended for promotion at this time) and he was marked unacceptable in his on/off duty conduct. The derogatory comments referred to the leave incident. The applicant provided a rebuttal.

HQ AFPC/DPPPWB informally advised the AFBCMR Staff that the Article 15 and referral EPR made the applicant ineligible for promotion consideration for technical sergeant in cycles 00E6 and 01E6. 

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AIR FORCE EVALUATION:

AFLSA/JAJM asserts it is clear the commander considered the applicant to be absent without leave (AWOL) from 14 Apr to the beginning of his authorized leave, 17 Apr 00, and that he intended the applicant be punished for that unauthorized absence.  However, the commander’s action in placing the applicant on leave created a basic contradiction in that one cannot be on leave and AWOL at the same time.  As such the records are inconsistent and corrective action is required to either remove the Article 15 action as the applicant requests or credit his leave account.  As the last action taken was the Article 15, it is reasonable to conclude that this is the action that should remain. The applicant was AWOL at the time he was required to be at his duty 
station on 14 Apr and did not appear. The fact that the commander at some later point erroneously placed the applicant on leave beginning 14 Apr to ensure he did not escape sanction for his authorized departure does not change the applicant’s AWOL status. Therefore, it is appropriate to resolve this inconsistency by crediting the applicant’s account with the three days leave erroneously debited.  No relief should be granted as to the Article 15 action.

A complete copy of the evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete 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, this office has received no response. 

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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 warranting set aside of the Article 15. AFLSA/JAJM’s recommendation that the AWOL/leave inconsistency be resolved by restoring three days of leave to the applicant’s account was noted. However, after carefully weighing all the available evidence and statements, we are not persuaded the applicant was trying to “scam” the system.  We believe this was a misunderstanding as he contends.  In this regard, our own experiences have included many instances where an individual, civilian or military, has unsettled leave plans or last minute changes. We know supervisors and subordinates frequently deal with uncertain leave situations and we find it reasonable that the applicant believed he had covered himself.  The supervisor indicates in his statement that he did not approve an earlier departure date. On the other hand, neither does he state that he specifically denied the applicant an earlier departure date. The supervisor confirms the applicant had informed him of his travel arrangement difficulties and uncertainty as to his precise leave start date. The applicant contacted another individual about his earlier departure when he could not reach his supervisor.  While the applicant may not have exercised good judgment in processing his leave, in our view his carelessness was more deserving of a letter of reprimand than nonjudicial punishment. However, in addition to the Article 15, he was further penalized with a referral EPR. As a result, he was made ineligible for promotion consideration to technical sergeant for not one, but two, promotion cycles.  Therefore, we conclude the Article 15 should be set aside on the basis of equity. The applicant did not request the referral EPR be voided but since it was driven by the same incident as the Article 15, which we have found to be overly harsh, we also recommend the referral report be voided for consistency’s sake and the applicant be afforded supplemental promotion consideration beginning with cycle 00E6. 

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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:

	a.  The punishment imposed under the provisions of Article 15, UCMJ, on 11 May 2000, be set aside and all rights, privileges and property of which he may have been deprived be restored.

	b.  The Enlisted Performance Report, AF Form 910, rendered for the period 2 April 2000 through 24 October 2000 be declared void and removed from his records.   

It is further recommended that he be provided supplemental consideration for promotion to the grade of technical sergeant for all appropriate cycles beginning with cycle 00E6.  

If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application, that would have rendered the individual ineligible for the promotion, such information will be documented and presented to the board for a final determination on the individual's qualification for the promotion.

If supplemental promotion consideration results in the selection for promotion to the higher grade, immediately after such promotion the records shall be corrected to show that he was promoted to the higher grade on the date of rank established by the supplemental promotion and that he is entitled to all pay, allowances, and benefits of such grade as of that date.

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The following members of the Board considered this application in Executive Session on 17 December 2002 under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence relating to AFBCMR Docket Number 02-02126 was considered:

   Exhibit A.  DD Form 149, dated 24 Jun 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 Sep 02, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 4 Oct 02.

                                   

AFBCMR 02-02126

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to  , be corrected to show that:

	      a.  The punishment imposed under the provisions of Article 15, UCMJ, on 11 May 2000, be, and hereby is, set aside and all rights, privileges and property of which he may have been deprived be restored.

	      b.  The Enlisted Performance Report, AF Form 910, rendered for the period 2 April 2000 through 24 October 2000 be, and hereby is, declared void and removed from his records.

	It is further directed that he be provided supplemental consideration for promotion to the grade of technical sergeant for all appropriate cycles beginning with cycle 00E6.

	If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application, that would have rendered the individual ineligible for the promotion, such information will be documented and presented to the board for a final determination on the individual's qualification for the promotion.

	If supplemental promotion consideration results in the selection for promotion to the higher grade, immediately after such promotion the records shall be corrected to show that he was promoted to the higher grade on the date of rank established by the supplemental promotion and that he is entitled to all pay, allowances, and benefits of such grade as of that date.