RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02376
		INDEX CODES:  100.06, 126.04

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 initiated on 6 Apr 98 and imposed on 23 Apr 98 be set aside and removed from his records.

His reenlistment eligibility (RE) code be changed from 4H to 1A.

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APPLICANT CONTENDS THAT:

He was accused of driving under the influence (DUI) of alcohol.  Regarding this incident, he believes that he was misled about the rights and privileges afforded him.  Since he had never been in trouble before or after the incident, he was unaware of the actual charge of the Article 15.  His defense counsel, commander, and first sergeant told him the punishment given was a violation and not an Article 15.  Specifically, each said that the incident would in no way be on any permanent record, and that he was receiving a reprimand, as indicated by the commander on the AF Form 3070 (Record of Nonjudicial Punishment Proceedings).  He found out that the incident was on his permanent record.  He was also told by a recruiter that he could not rejoin the Air Force because of his reenlistment code of 4H.  He is outraged because he feels that he was lied to and betrayed by his superiors.

In support of his appeal, the applicant provided an expanded statement and extracts from his military personnel records.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 5 Jul 95.  He received three Enlisted Performance Reports, in which the overall evaluations were 4 (1-5 (Highest)).

On 6 Apr 98, the applicant’s commander notified him that he was considering whether he should be punished under Article 15, Uniform Code of Military Justice (UCMJ) based on allegations that the applicant did, on or about 25 Mar 98, operate a jeep while drunk.  The applicant was advised of his rights in the matter.  After consulting legal counsel, the applicant waived his right to demand trial by court-martial, accepted the nonjudicial proceedings under Article 15, and submitted written comments for review.  On 23 Apr 98, after considering the matters presented by the applicant, the commander found that the applicant had committed the alleged offense and imposed punishment.  He was reduced from the grade of airman first class to airman, which was suspended until 23 Oct 98 and remitted, ordered to forfeit $100.00 per month for two months, reprimanded, and ordered to perform 14 days of extra duty.  The applicant did not appeal the punishment.  On 14 May 98, legal authority found that the nonjudicial proceedings under Article 15 were legally sufficient.

On 4 Jul 99, the applicant was honorably discharged under the provisions of AFI 36-3208 (Completion of Required Active Service).  He was assigned an RE code of 4H (Serving suspended punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ)).  He had served 4 years of active duty service.

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AIR FORCE EVALUATION:

AFPC/DPPAE indicated that the applicant received the correct RE code of 4H as a result of the Article 15 punishment.  However, in accordance with AFI 36-2606, members are not to be discharged with the RE code of 4H.  Further, there was no indication by the applicant’s commander that he intended to deny reenlistment or that he intended to authorize reenlistment.  Based on a review of the applicant’s records, the RE Code of 4H was incorrect.  AFPC/DPPAE recommended that the applicant’s RE code be changed to 3K (Reserved for use by HQ AFPC or the Air Force Board for Correction of Military Records (AFBCMR) when no other reenlistment eligibility code applies or is appropriate).

A complete copy of the AFPC/DPPAE evaluation is at Exhibit C.

AFLSA/JAJM recommended denial of the applicant’s request that the nonjudicial punishment under Article 15 be set aside and removed from his records.  According to AFLSA/JAJM, the applicant’s contentions have no merit.  It was clear from the AF Form 3070 that he was clearly advised of the offense, the process, and the potential and actual punishment.  Applicant did receive a reprimand as part of the nonjudicial punishment as he alleged, but it was in addition to the suspended reduction to the grade of airman, forfeiture of $100.00 pay per month for two months and 14 days of extra duty.  Although it was not clear from the matters the applicant submitted exactly what proceedings he complains violated his right against double jeopardy, it appears that he refused to provide a breath or blood sample when stopped for the DUI.  His privilege to drive on Dover Air Force Base (AFB) was suspended for a year as required by Air Force regulations.  It appears that the State of Delaware also had taken administrative action, presumably for the same incident, to suspend his license, as the letter from the law firm references a successful Division of Motor Vehicles (DMV) hearing and return of his license.  Both these suspension proceedings are administrative not criminal--—proceedings conducted by different sovereigns--Delaware and the United States.  The Constitutional protection against double jeopardy is not applicable under these circumstances, nor would it have barred criminal prosecution by either Delaware or the United States if that had occurred.  The suspension proceedings are independent of the Article 15 process and involve different issues.  The facts under review in a suspension hearing for refusing to provide a sample are generally whether the appropriate procedures were followed.  There was no evidence as to the basis for the civilian DMV decision, but that basis could easily have nothing to do with whether the applicant drove while drunk.  The applicant’s reliance on this provision and argument is misplaced.

In AFLSA/JAJM’s view, the applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action, and did not otherwise demonstrate an equitable basis for relief.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that the Air Force had no concrete evidence or proof that he was over the drinking legal limit.  This lack of evidence was error number one contrary to what AFLSA/JAJM believes.  Anyone who alleged or thought that he was drunk were going on hearsay.  Error number two occurred when the two Security Police officers at the north gate of Dover Air Force Base (AFB) did not do their jobs properly.  He asked four times about his rights regarding the base and state driving laws.  Each time his rights as a service member and a citizen was disregarded.  There was no breathalyzer or blood tests done.  The charge was dismissed and the military saw fit to punish him without cause or proof.  He seeks to have this charge dropped from his record because it was wrong.  His ambition and goal in life has and always will be to serve his country with honor.  He now desires to become an officer in the Air Force or Air National Guard.  He asks that the chance to serve his country proudly not be taken away from him.

Applicant’s complete response, with attachments, is at 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice concerning the applicant’s request that his RE code be changed.  The evidence of record indicates that he received an Article 15 with a suspended reduction from the grade of airman first class to airman.  Thus, he was appropriately assigned the RE Code of 4H.  However, AFPC/DPPAE has indicated that in accordance with the governing instruction, he should not have been assigned the RE code of 4H in conjunction with his discharge.  Therefore, AFPC/DPPAE recommends that the RE code be changed to 3K.  We note that just prior to the incident for which the applicant received the Article 15, his supervisor recommended him for reenlistment, however, we have no evidence whether or not the applicant's commander intended to select him for reenlistment after this incident.  Therefore, we are not inclined to change his RE code to one that would allow immediate reenlistment.  Accordingly, we agree with AFPC/DPPAE’s recommendation that the RE code of 4H be changed to 3K.  This will provide the applicant with an RE code that, based on the needs of the respective military service, can be waived by the enlistment authorities.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice regarding the applicant’s requests that the Article 15 imposed on 23 Apr 98 be set aside and removed from his records.  We took notice of the applicant's complete submission in judging the merits of the case.  However, we did not find it sufficient to override the rationale provided by AFLSA/JAJM.  The evidence of record reflects that his commander determined that he had committed the alleged offense of operating a jeep while drunk, and made the decision to impose nonjudicial punishment under Article 15.  The applicant elected not to appeal the punishment.  We are not inclined to disturb the discretionary judgment of commanding officers, who are closer to events, absent a strong showing of abuse of that authority.  Therefore, in the absence of evidence which shows to our satisfaction that the applicant’s substantial rights were violated, he was coerced to waive any of his rights, or the commander who imposed the nonjudicial punishment abused his discretionary authority, we conclude that no basis exists to recommend favorable action on the applicant’s request.

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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 Reenlistment Eligibility (RE) Code issued in conjunction with his honorable discharge on 4 Jul 99 was "3K."

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The following members of the Board considered AFBCMR Docket Number 02-02376 in Executive Session on 28 Jan 03, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 20 Aug 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPAE, dated 28 Oct 02.
     Exhibit D.  Letter, AFLSA/JAJM, dated 14 Nov 02.
     Exhibit E.  Letter, SAF/MRBR, dated 27 Nov 02.
     Exhibit F.  Letter, applicant, dated 22 Dec 02, w/atchs.

                                   

AFBCMR 02-02376

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 his Reenlistment Eligibility (RE) Code issued in conjunction with his honorable discharge on 4 Jul 99 was "3K."