RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03991
		INDEX NUMBER:  126.00
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 imposed on him 22 Jul 99 be set aside and that all property, rights, and privileges of which he was deprived be restored.

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APPLICANT CONTENDS THAT:

The Orderly Room and command section of his assigned squadron failed to assist him during a time of need by denying his request for an extension of time to complete outprocessing actions and by bringing unfounded charges against him.  He had a sufficient balance of accrued leave for his request to be considered.

In support of his appeal, applicant provides copies of the Article 15 documents, character references, a copy of a leave document, and a copy of a Congressional complaint he filed.

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

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STATEMENT OF FACTS:

The applicant entered active duty on 6 Feb 79.  He retired effective 1 Feb 00 in the grade of technical sergeant (TSgt)   (E-6) for maximum service or time in grade.

On 12 Jul 99, while assigned at Aviano Air Base, serving in the grade of master sergeant (MSgt) (E-7), the applicant was notified by his commander that he was considering whether to punish him under Article 15, Uniform Code of Military Justice (UCMJ), for violation of Article 92, UCMJ.  Specifically, the applicant was accused of dereliction of duty in that he willfully failed to complete outprocessing actions at Pass and Registration, his squadron, and the military personnel flight (MPF) prior to his scheduled departure for a permanent change of station.

On 19 Jul 99, the applicant accepted proceedings under Article 15.  He consulted counsel, requested a personal appearance, and submitted a written presentation.  On 22 Jul 99, the commander found that the applicant had committed the offense.  He imposed punishment consisting of reduction to the grade of technical sergeant and a reprimand.  On 27 Jul 99, the applicant appealed the punishment and submitted a written presentation to the appeal authority.  On 12 Aug 99, the appellate authority denied the applicant’s appeal.  Due to his new grade of TSgt, the applicant was required to retire at 20 years of service, approximately six months later.

A resume of the applicant’s last ten enlisted performance reports (EPRs) follows:

	Closeout Date					Overall Rating

	  15 Nov 90						4
	  24 Jan 92						4
	  24 Jan 93						4
	  04 Oct 93						4
	  04 Oct 94						4
	  04 Oct 95						3
	 *04 Oct 96						2
	  04 Oct 97						4
	  04 Oct 98						5
	  30 May 99						3

*  Referral Report

Additional facts relevant to this case are contained in the evaluation prepared by the appropriate office of the Air Force found at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to set aside his Article 15.

The applicant was scheduled to transfer from his overseas assignment to his new stateside assignment with a report not later than date of 14 Aug 99.  His Date of Expected Return from Overseas (DEROS) was 30 Jun 99, which meant that he was supposed to report to the states on that date.  The applicant established a port call of 30 Jun 99.  The flight out had a show time of 0800 and a departure time of 1100.

During his verbal presentation to the commander during the Article 15 process, the applicant acknowledged that his unit had released him from duty on 14 Jun 99, giving him 16 calendar days to complete the necessary outprocessing actions.  The applicant’s final outprocessing appointment was scheduled for 28 Jun 99 at 1400 hours, following an 1120 final appointment with the Housing Office.

According to the applicant, movers were supposed to pack and move his household goods from 23-25 Jun 99.  On 25 Jun, the moving company informed the applicant that they would not be able to complete their packing by the end of that day.  In a formal complaint filed with the Transportation Squadron, the applicant stated that the packing of his household goods was completed on Saturday, 26 Jun 99 at 1930 hours.

On 28 Jun 99, the applicant asked the outbound assignments office to change his port call date since the packers had taken an unscheduled extra day and because he had not shipped his vehicle.  However, establishing a port call outside a member’s DEROS month requires unit commander approval.  The unit commander refused to approve the request on the grounds that the applicant had been given plenty of time to accomplish all necessary outprocessing actions.  That afternoon, the outbound assignments office informed the applicant that he must complete all outprocessing and depart his overseas assignment on 30 Jun 99.  His final outprocessing appointment was scheduled for 29 Jun at 1330 hours.

The applicant contacted the outbound assignments section on     29 Jun 99 and requested that his final appointment be moved to 1600 hours, as he had not yet shipped his vehicle.  The appointment was rescheduled but the applicant called at 1600 hours to inform them that he was in the process of shipping his vehicle and asked that his appointment be changed to 0800 on    30 Jun 99.  Outbound assignments informed the applicant’s Squadron Section Commander.  On 30 Jun 99 at 0810, the Squadron Section Commander called to check on the applicant’s outprocessing.  He was informed that the applicant had not arrived and had not called.

The Squadron Section Commander became concerned that the applicant was trying to depart without completing his outprocessing.  He contacted the terminal at 0840 and learned that the applicant was there checking in for his flight.  At approximately 0940 hours, the Section Commander and First Sergeant arrived at the terminal and paged the applicant.  After he did not respond, they called around to try and locate the applicant.  At approximately 1025 hours, the applicant arrived at the terminal.  The applicant was taken to a room by the Section Commander and First Sergeant and read his rights for failure to process the squadron and base.  The applicant acknowledged that he still had several agencies to outprocess.  After the applicant could not satisfactorily explain how he could complete his outprocessing in the time remaining before the flight, the Section Commander involuntarily extended his DEROS to allow time for him to complete the outprocessing.  The applicant completed his outprocessing on 1 Jul 99.  The applicant was subsequently punished by Article 15.

In regard to the applicant’s contention that the punishment was disproportionate to his offense, the commander noted that the applicant was a senior noncommissioned officer (SNCO) who was already on the control roster for previous disciplinary actions.  AFLSA/JAJM provides a list of the previous actions received by the applicant.

The applicant provided no evidence of a clear error or injustice related to his Article 15 action.  The commander and appellate authority considered all of the information he has provided to the Board in 1999.  The commander’s determination that the applicant had sufficient time to complete his outprocessing and that he willfully failed to do so is clearly supported by the evidence.  Her imposition of a one-stripe reduction in grade was a permissible punishment and also warranted in light of the applicant’s disciplinary record and his actions surrounding the outprocessing.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 28 Mar 03 for review and comment within 30 days.  To date, a response has not been received.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office 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.  We note the applicant’s argument that he had sufficient leave balance to cover the additional time he required to complete his outprocessing actions.  However, we do not believe that he has presented sufficient evidence that the commander’s decision to deny him leave and require that he complete his scheduled outprocessing on time was unjust.  In fact, if the applicant’s outprocessing were delayed due to events beyond his control, there would be no justification to charge him leave.  We note that the applicant had a total of 16 calendar days to complete all required actions related to his outprocessing.  Although the moving company took an additional day to complete the packing of his household goods, he has not provided sufficient evidence to show that this delay precluded his completion of all required actions in preparation for his port call of 30 Jun 99.  Therefore, 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 BC-2002-03991 in Executive Session on 7 May 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 10 Mar 03.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Mar 03.