RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02479
		INDEX CODE:  
		COUNSEL:  XXXX

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be restored to the grade of staff sergeant.

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APPLICANT CONTENDS THAT:

Mitigating family problems contributed to his 27 days of absence without leave (AWOL) and subsequent reduction in rank.  He lost his wife and family after his return from Vietnam because his family did not want anything to do with him.  He now has a son-in-law who is currently on active duty in the Air Force and his reduction in rank causes him great distress and embarrassment.  

In support of his request, applicant provided a Department of Veterans Affairs (DVA) Report of Contact.  His complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Navy on 8 Dec 60 and was discharged on 17 Nov 64.  On 1 Nov 67 he enlisted in the Regular Air Force.  He was progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 1 Jul 71.  

On 10 Oct 74, applicant was notified by his commander of his intent to impose nonjudicial punishment under Article 15, UCMJ.  The specific reason for this action was that on 3 Sep 74, without authority, he absented himself from his organization until on or about 25 Sep 74.  He acknowledged receipt of the notification on 16 Oct 74.  He was advised of his rights in this matter and after consulting counsel; he waived his right to demand trial by court martial, accepted Article 15 proceedings, and provided oral and written presentations to the commander.  On 16 Oct 74, the commander found that he did commit one or more of the offenses alleged and imposed punishment consisting of reduction in grade to sergeant and forfeiture of $200 pay per month for 2 months.  That portion of his punishment providing for forfeiture of pay for 2 months was suspended until 8 Apr 75, at which time it was remitted.  Applicant elected not to appeal the Article 15 punishment.  

On 1 Oct 76, applicant submitted a request for discharge from the Air Force for hardship reasons, under the provisions of Chapter 3, AFM 39-10.  The discharge authority approved his request on 14 Oct 76.  He was honorably discharged on 15 Oct 76.  He served 12, years, 10 months, and 22 days on active duty.  He had 23 days time lost.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends the Board assert the statute of limitation and deny the application.  JAJM states that the applicant does not contend that he was denied procedural or substantive due process.  He does not contend that any error or injustice occurred in the nonjudicial punishment proceedings.  He admitted the AWOL but attributed it to the cumulative stress incurred as a result of the break-up of his marriage and the ongoing conflict with his workplace supervisor.  He offers no evidence or argument in support of the relief he seeks.  He does not claim that he is factually innocent or that the punishment was disproportionately harsh.  With his decision to concur in the commander's decision to address the allegation in the nonjudicial punishment forum, the applicant vested the commander with the fact finding and punishment power in this case.  After reviewing the evidence before him, the commander determined that there was sufficient evidence that the accused committed the offense charged.  The commander considered the arguments and weighed the severity of the offense and determined that a one-stripe reduction was warranted.  His decision was subject to appeal by the applicant, who waived that right.  The burden of proof rests with the applicant to show the commander erred.  He has failed to produce any evidence to carry that burden.  The punishment was well within the parameters set out in applicable instructions.  There is no evidence that it was unjust or disproportionately harsh given all the factors and circumstances before the commander.  The commander suspended the forfeitures, thus providing the applicant a measure of relief.  A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The JAJM evaluation is at Exhibit C.

AFPC/DPPPWB reviewed applicant's request, and concurs with the JAJM recommendation that the application should be time-barred.  If the Board decides to consider the application on its merits, then denial is recommended.  The DPPPWB evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 18 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 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 that would warrant restoration to the grade of staff sergeant.  We find no evidence of error in this case and after thoroughly reviewing the evidence of record, we do not believe he has suffered an injustice.  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 the Article 15 action, the applicant was offered every right to which he was entitled.  He was represented by counsel, waived his right to demand trial by court-martial, and submitted written matters for review by the imposing commander.  After considering the matters raised by the applicant, the commander determined that the applicant had committed "one or more of the offenses alleged" and imposed punishment on the applicant.  The applicant has not provided any evidence showing that the imposing commander abused his discretionary authority or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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 Docket Number 02-02479 in Executive Session on 15 Jan 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Jul 02, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 13 Sep 02.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 4 Oct 02.
    Exhibit E.  Letter, SAF/MRBR, dated 18 Oct 02.