RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02650
		INDEX NUMBER:  126.00
	XXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

___________________________________________________________________

APPLICANT REQUESTS THAT:

His grade of senior airman (E-4) lost as a result of an Article 15 action be restored with a date of rank (DOR) of 20 Jan 02.

___________________________________________________________________

APPLICANT CONTENDS THAT:

His commander intended to suspend his reduction in grade to airman and restore his original grade of senior airman within the four-month window commanders have to suspend, mitigate, remit, or set aside punishment.  However, due to the unit’s involvement with an Operational Readiness Inspection, the four-month window inadvertently passed without the commander initiating the required action to restore his grade.

Applicant provides letters of support and documentation of intent from his chain of command that his grade should have been restored.

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

___________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active duty in the grade of airman first class (A1C).  His Total Active Federal Military Service Date is 11 Feb 98.  On 10 Sep 01, while the applicant was serving in the grade of senior airman, his commander offered him proceedings under Article 15 for the alleged violation of Article 92 of the Uniformed Code of Military Justice in that he was derelict in the performance of his duties by willfully failing to refrain from using his Bank of America Government Credit card for his personal use.  On 19 Sep 01, after consulting counsel, applicant accepted proceedings under Article 15.  He chose not to make a personal appearance and did not submit a written presentation.  On 20 Sep 01, his commander determined that he had committed the alleged offense and imposed punishment consisting of a three-stripe reduction to airman basic (E-1) and 45 days extra duty.  The applicant appealed and submitted a written presentation.  On 1 Oct 01, the appellate authority granted his appeal in part by mitigating the three-grade reduction to a two-grade reduction, i.e., reduction to airman vice airman basic.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  It is not clear from the commander’s memo of 12 Jul 02 that he intended to suspend the applicant’s reduction in grade to airman.  The commander indicated that he intended to consider doing so, but also indicated he favorably supported applicant’s appeal.  The commander was correctly informed that under the Manual for Courts-Martial that an executed reduction may only be suspended within a period four months after the date of execution.  The reduction was executed on 20 Sep 01, therefore the suspension had to be effected no later than 19 Jan 02.

The facts and circumstances of the applicant’s case do not constitute legal error.  The Board, however, may act to correct a clear injustice.  The applicant has attempted to make such a case.  The Board should carefully examine the evidence presented by the applicant to determine:

	  a.  Whether the commander clearly intended to suspend the executed reductions.

	  b.  Whether the commander had made a decision to do so within four months of the effective date of the reduction.

	  c.  Whether the commander failed to execute the intent.

	  d.  Whether the commander’s failure to suspend the reduction constitutes an injustice under these facts and circumstances.

They are not persuaded that the applicant has made such a case.  The commander’s statement is equivocal at best and he does not state that he had in fact decided to take action to suspend the reduction within the four-month window.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB evaluated the effect of suspending the reduction on the applicant’s promotion opportunity.  Should the Board grant the applicant’s request, he would be restored to the grade of SrA with a DOR of 11 Aug 00 and an effective date of 19 Jan 02.  He would then be eligible for supplemental promotion consideration to staff sergeant (SSgt) beginning with cycle 01E5.

The complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation was forwarded to the applicant on 11 Oct 02 for review and comment within 30 days.  To date, a response has not been received.

___________________________________________________________________

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.  The letter from the commander that imposed the punishment persuaded the Board that his failure to suspend the applicant’s reduction in grade was due to other factors than a lack of intent on his part.  While the commander indicates that he intended to consider rather than initiate the required action, he does indicate that he trusted the judgment of the senior NCO who advised him the applicant was deserving of consideration to have the reduction suspended.  In that regard, the commander has recommended that this Board favorably consider the applicant’s appeal.  We also note that the applicant’s first sergeant has also recommended that the applicant’s rank be restored.  The first sergeant also appears to indicate that the failure to consider and possibly suspend the applicant’s reduction was an administrative oversight that they have taken action to fix and avoid in the future.  AFLSA/JAJM believes that the commander’s statement is “equivocal.”  To an extent we can agree, however; we believe it creates doubt that should be resolved in the applicant’s favor.  The applicant has requested restoration of his grade of senior airman with a DOR of 20 Jan 02.  However, had the commander initiated action to suspend the applicant’s demotion within the four month window, his DOR would actually be the original one that he held.  Therefore, we recommend the applicant be provided relief as indicated below.

___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the reduction to the grade of airman (E-2) imposed by nonjudicial punishment under Article 15, UCMJ, on 20 September 2001, be suspended as of        19 January 2002 for a period of six months and that he be restored to the grade of senior airman (E-4) with a date of rank of        11 August 2000 and an effective date of 19 January 2002.

It is further directed that he be provided supplemental consideration for promotion to the grade of staff sergeant (E-5) beginning with cycle 01E5.

If selected for promotion to staff sergeant by supplemental consideration, he be provided any additional supplemental consideration required as a result of that selection.

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 applicant ineligible for the promotion, such information will be documented and presented to the Board for a final determination on the individual’s qualifications 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.

___________________________________________________________________

The following members of the Board considered Docket Number 02-02650 in Executive Session on 23 January 2003, 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 28 Jul 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 13 Sep 02.
     Exhibit D.  Memorandum, AFPC/DPPPWB, dated 1 Oct 02.
     Exhibit E.  Letter, SAF/MIBR, dated 11 Oct 02.

AFBCMR 02-02650

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 XXXXXXXX, XXX-XX-XXXX, be corrected to show that the reduction to the grade of airman (E-2) imposed by nonjudicial punishment under Article 15, UCMJ, on 20 September 2001, be, and hereby is, suspended as of 19 January 2002 for six months and that he be, and hereby is, restored to the grade of senior airman (E-4) with a date of rank of 11 August 2000 and effective date of 19 January 2002.

	It is further directed that he be provided supplemental consideration for promotion to the grade of staff sergeant (E-5) beginning with cycle 01E5.

	If selected for promotion to staff sergeant by supplemental consideration, he be provided any additional supplemental consideration required as a result of that selection.

	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 applicant ineligible for the promotion, such information will be documented and presented to the Board for a final determination on the individual’s qualifications 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.