RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02534
		INDEX CODE:  126.04
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The vacation of his suspended reduction under Article 15 of the Uniformed Code of Military Justice (UCMJ) which reduced him to the grade of senior airman, be set aside.

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APPLICANT CONTENDS THAT:

His new commander told him that she believed his punishment was excessive and that the best interests of the Air Force would be served if she set aside his reduction and that she was going to reinstate him to the grade of staff sergeant.  This decision was made after numerous meetings with the assistant staff judge advocate, the first sergeant and himself.  She prepared an AF Form 3212, Record of Supplementary Action under Article 15, UCMJ, on 17 May 02, and provided it to the legal office.  Two days later she received a phone call requesting supporting documentation.  She wrote a supporting letter and took it directly to the legal office.  She was told by the legal office that she could not accomplish the set aside action because it was not legally sufficient.  The applicant filed an Inspector General complaint.  During a meeting with the IG on 11 Jun 02, with all parties involved, the legal office stated that they were incorrect and the set aside action was legally sufficient.  On 12 Jun 02, her commander prepared another AF Form 3212. On 13 Jun 02, his commander called him and stated that she changed her mind.  She was called into the wing commander's office and was given a few words of wisdom from the wing commander and vice wing commander.  

He filed an Article 138 complaint.  In his commander's response she states that she had all of the facts in front of her for the first time and was told by the wing commander that she could let him test for staff sergeant.  If she had not had all of the facts, then why would she sign the AF Form 3212 not once, but twice.  Everyone in the chain of command was involved and she knew the entire time he could test for promotion.  She had made that possible by ordering a command-directed Enlisted Performance Report (EPR) in December 2001.  In April 2002, she requested a test date for the May 2002 testing cycle.  His commander put a lot of work into restoring his grade.  He is not sure what was said to her by the wing commander, but it was something significant for her to turn her back on him and his family.  

In support of his request, applicant provided a personal statement, documentation associated with his Article 138 complaint, a copy of his EPR closing 7 Mar 02; his AF Form 931, Performance Feedback Worksheet; AF Forms 3212 and documentation associated with set aside requests, a copy of his Letter of Reprimand, and an extract from AFI 51-202.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 17 May 90.  He was progressively promoted to the grade of staff sergeant.

On 19 Dec 00, the applicant was notified by his commander of his intent to recommend nonjudicial punishment under Article 15 of the UCMJ for his failure to refrain from utilizing his Government Travel Card for unofficial cash advances and purchases in the amount of $461.05; and, for uttering checks in the amount of $857.37 and $757.00 for cash advance, and failing to maintain sufficient funds in the checking account for payment of such checks in full upon their presentment for payment.  He was advised of his rights in this matter and acknowledged receipt of the notification on 22 Dec 00.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written presentation to his commander.  On 28 Dec 00, after consideration of all the facts, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  He was reduced to the grade of senior airman, suspended until 26 Jun 01.  The applicant elected not to appeal his punishment.  

On 26 Jun 01, the applicant was notified by his commander of his intent to vacate the suspended reduction to senior airman.  The specific reason for this action was for uttering checks in the amount of $124.00 on 26 Mar 01 and $140.00 on 30 Mar 01, and failing to maintain sufficient funds in the checking account for payment of such checks in full upon their presentment for payment.  After consulting counsel, the applicant provided an oral and written presentation to his commander.  On 2 Jul 01, the commander determined that he did commit one or more of the offenses alleged and reduced the applicant to the grade of senior airman with a date of rank of 28 Dec 00.

On 1 May 02, the applicant submitted a request to his new commander to suspend, mitigate, or set aside the reduction to senior airman.  On 17 May 02, his commander signed an AF Form 3212 purporting to set aside the reduction to the grade of senior airman.  On 5 Jun 02, the legal office advised the commander that the paperwork was submitted to the Military Personnel Flight (MPF) without a legal review and that the action proposed was outside the 4 month window normally allowed for set asides without proper authority.  On 12 Jun 02, the applicant's commander signed another AF Form 3212 purporting to set aside the reduction to senior airman.  On 13 Jun 02, the commander issued the applicant a Letter of Reprimand (LOR) for the Article 134 offense of which the commander found the applicant guilty of in the 28 Dec 00 Article 15 action.  On that same date, the commander had a meeting with the wing commander and vice wing commander, and stopped pursuing the set aside action.  

The following is a resume of the applicant's EPR ratings:

	PERIOD ENDING	PROMOTION RECOMMENDATION

		07 Mar 02		4 - Command Directed
		21 Jul 01		3 - Referral REport
		05 Jan 01		3
		05 Jan 00		4
		05 Jan 99		4
		05 Jan 98		4
		01 May 97		4
		12 Oct 96		4

The applicant has been selected for promotion to the grade of staff sergeant in the 02E5 promotion cycle.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.  JAJM states that a set aside is appropriate when the commander believes that, under all circumstances of the case, the punishment has resulted in clear injustice.  AFI 51-302 expounds the concept of "clear injustice."  It states "commanders should not routinely set aside punishment, but should exercise this discretionary authority only in the rare and unusual case where a question concerning the guilt of the member arises or where the best interests of the Air Force are served by clearing the member's record."  Set aside action is not normally considered a rehabilitation tool and commanders should not routinely set aside punishment to use it as a reward for a member who merely avoids future misconduct.  The commanders concern was that the applicant would not be promoted with the Article 15 on his record.  There is no evidence that she concluded that the applicant had not committed the offenses alleged.  In fact, she intended to ensure his misconduct was memorialized through the EPR comments and a Letter of Reprimand placed in his Unfavorable Information File (UIF).  The commander was correctly advised by the legal office that the facts of the case did not meet the criteria for a set aside.  The request was approximately 18 months after the original action and 10 months after the vacation.  Neither a clear injustice nor unusual circumstance were present.  However, the legal office was incorrect in that determinations of "unusual circumstances" or "the best interests of the Air Force" are made by commanders, not lawyers.  The set aside documentation was incorrectly submitted to the Military Personnel Flight (MPF) but it was not processed.  His commander later met with the base wing commander.  As a result of the meeting it became clear that the commander was under the misconception that the applicant would not be promoted with a nonjudicial punishment action on his record.  Since the Article 15 did not affect his promotability, the commander decided to set aside was not appropriate.  The applicant alleges his Article 15 was not set aside because of illegal command influence.  When asked about the applicant's allegation, the commander stated the decision was hers.  Commanders may consult with other commanders, including superior commanders, as long as the action taken is the subordinate commanders' sole decision.  The JAJM evaluation is at Exhibit C.

AFPC/DPPPWB reviewed applicant's request and recommends denial.  DPPPWB states that based on his date of rank (DOR) to senior airman of 28 Dec 00, he would have been eligible for promotion consideration to staff sergeant for cycle 01E5.  However, when he received a referral EPR for the period 6 Jan 01 through 21 Jul 01, he became ineligible.  The DPPPWB evaluation, with attachments, 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 25 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.  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, evidence has not been presented which would lead us to believe that he has been the victim of an error or injustice.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  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 Docket Number 02-02534 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 7 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 19 Sep 02.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 1 Oct 02, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 25 Oct 02.