RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02844
		INDEX CODE:  131.09, 110.00

		COUNSEL:  

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His grade of staff sergeant (E-5) be restored and that his reenlistment eligibility (RE) code be changed to allow eligibility to reenlist.
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APPLICANT CONTENDS THAT:

After having completed nine months and nine days of service, he received an Article 15.  His punishment consisted of a reduction in grade from an E-5 to a senior airman (E-4) for a period of 4 months and 30 days of extra duty.  At three months into the punishment, he was separated from the Air Force under the High Year of Tenure (HYT) program.

Due to an administrative error, his RE code of “4D” was changed to “2T.”  He was informed by a recruiter that he needs an RE code of “1” to reenter the Air Force.

In support of his request, the applicant submits copies of his military personnel record, with the Article 15.  The applicant’s 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  14 Nov 89.  The applicant continued to reenlist and was progressively promoted to the grade of staff sergeant (E-5), with an effective date and date of rank of 1 Nov 97.  His last reenlistment was on 16 Dec 98 for a period of four years in the grade of E-5, with a total of nine years, one month and two days of active military service.  He was reduced to the grade of senior airman (E-4), with a date of rank (DOR) of 13 Aug 99, pursuant to an Article 15.

Applicant's profile for the last eight reporting periods follows:

		Period Ending	Evaluation

		 22 Jan 93	5 - Immediate Promotion (grade of E-4)
		 22 Jan 94	4 - Ready
		 22 Jan 95	5
		 22 Jan 96	5
		 22 Jan 97	5
		 11 Oct 97	5
		 11 Mar 98	5 (grade of E-5)
		 30 Mar 99	5

On 2 Aug 99, applicant was notified of his commander's intent to impose nonjudicial punishment on him under Article 15, UCMJ.  The misconduct applicant had allegedly committed was for engaging in sodomy with the wife of another airman, in violation of Article 125, UCMJ.  The applicant consulted a lawyer, waived his right to demand trial by court-martial and accepted nonjudicial punishment.  After considering all matters presented to him, the commander found that the applicant did commit one or more of the offenses alleged.  The commander imposed punishment of a reduction to the grade of senior airman, with a new date of rank of 13 Aug 99, and 30 days of extra duty.  The applicant appealed the nonjudicial punishment; however, it was denied by the appellate authority on 9 Sep 99.  On 14 Sep 99, the local Judge Advocate found the record legally sufficient.

On 13 Nov 99, the applicant was involuntarily released from active duty with an honorable characterization of service under the provisions of AFI 36-3208 (reduction in force).  He had completed a total of 10 years and was serving in the grade of senior airman (E-4) at the time of separation.  Applicant received an RE Code of 4D, which defined means "Grade is senior airman or sergeant, completed at least 9 years’ Total Active Federal Military Service (TAFMS), but fewer than 16 years’ TAFMS, and has not been selected for promotion to staff sergeant (E-5)."  The applicant is currently a member of the inactive Reserve.
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AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application be denied.  JAJM indicates that the supporting nonjudicial punishment documentation is no longer maintained.  JAJM states that by electing to resolve the allegation in the nonjudicial forum, the applicant placed the responsibility to decide whether he had committed the offense with his commander.  The commander ultimately resolved the issues of the alleged misconduct against the applicant, as did the commander on appeal.  There was sufficient evidence for the commander to determine the offense had been committed.  While different fact finders may have come to a different conclusion, the commander’s findings are neither arbitrary nor capricious and should not be disturbed.  When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended to simply second-guess the appropriateness of the judgments of field commanders.  A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.  The AFLSA/JAJM evaluation is at Exhibit C.

HQ AFPC/DPPRS recommends the application be denied.  DPPRS states that the established E-4 High Year of Tenure (HYT) date is the year and month an individual reaches 10 years Total Active Federal Military Service (TAFMS).  The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  He provided no other facts warranting an upgrade of the discharge.  The HQ AFPC/DPPRS evaluation is at Exhibit D.

HQ AFPC/DPPAE recommends the application be denied.  DPPAE states senior airmen (E-4s) are separated upon reaching 10 years’ TAFMS if they are not projected for promotion to staff sergeant (E-5).  The applicant was properly separated under established policy at the time he left the Air Force and his current RE code should not be changed.  The HQ AFPC/DPPAE evaluation is at Exhibit E.

HQ AFPC/DPPPWB recommends the applicant’s request to restore his rank to staff sergeant (E-5) be denied.  DPPPWB defers to AFLSA/JAJM’s recommendation.  The HQ AFPC/DPPPWB evaluation is at Exhibit F.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on 17 Jan 03 for review and response.  As of this date, no response has been received by this office (Exhibit G).
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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the following advisory opinion is provided concerning the RE code issue.

HQ AFPC/DPPAE states that the applicant was discharged with an RE code of 4D, which renders him ineligible to reenlist in the Air Force.  The applicant has two DD Form 214s in his record, but only one is valid.  The initial DD Form 214 properly reflects RE Code 4D.  The other DD Form 214 incorrectly reflects 2T, which defined means “Airman possesses an HYT date of at least 20 years’ TAFMS, is within 23 months of HYT date, and 13 months or less remain until date of separation (DOS).  The applicant does not qualify for the latter code.  His current RE code of 4D is correct and should not be changed.  DPPAE recommends the applicant’s request to have his RE code of 4D changed be denied.  The HQ AFPC/DPPAE evaluation is at Exhibit H.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 21 Apr 03 for review and response.  As of this date, no response has been received by this office (Exhibit I).

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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.  Applicant’s contentions are duly noted.  However, after reviewing the applicant’s submission and the available evidence of record, we agree with the opinions and recommendations of the respective Air Force offices and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  When initiating the Article 15 action and imposing the nonjudicial punishment, we believe the commander acted on the basis of information he determined to be reliable.  We are of the opinion that the applicant’s commander, being aware of all of the circumstances involved, was in the best position to determine whether the applicant should receive the Article 15 and what resultant punishment he should render.  We are unpersuaded by the evidence provided that the commander abused his discretionary authority when he imposed the nonjudicial punishment, or that the applicant was not afforded all rights granted by the prevailing Air Force Instruction.  Hence, the applicant was appropriately separated when he reached his established E-4 High Year of Tenure (HYT) date.  We further find that the RE code of “4D” accurately reflects the circumstances of his separation and we do not find this code to be in error or unjust.  In view of the foregoing and in the absence of persuasive evidence to the contrary, we find no 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 BC-2002-02844 in Executive Session on 18 June 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Aug 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 22 Nov 02.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 13 Dec 02.
   Exhibit E.  Letter, HQ AFPC/DPPAE, dated 18 Dec 02.
   Exhibit F.  Letter, HQ AFPC/DPPPWB, dated 6 Jan 03.
   Exhibit G.  Letter, SAF/MRBR, dated 17 Jan 03.
   Exhibit H.  Letter, HQ AFPC/DPPAE, dated 8 Apr 03.
   Exhibit I.  Letter, AFBCMR, dated 21 Apr 03.