RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00760
		INDEX CODE:  126.03

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her rank of E-6 be restored.

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APPLICANT CONTENDS THAT:

Although she deserved punishment, the punishment she received was severe and unjust.  Her behavior was completely unacceptable and she makes no excuses for it; however, she is battling the disease of alcoholism.  Because of this disease, her life got out of control.

Her commander treated her differently than another similarly situated male who received an Article 15.

Her Financial Services Officer (FSO) told her entire section that she had a substance abuse problem, in violation of AFI 33-332.

In support of her appeal, the applicant provided personal statements, supportive statements, and other documents associated with the matter under review.

Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently serving on active duty in the grade of senior airman, with a date of rank of 1 Jul 02.  She has a projected promotion to the grade of staff sergeant.  Her Total Active Federal Military Service Date (TAFMSD) is 3 Jun 86.

On 3 Jun 02, the applicant’s commander notified her that he was considering whether she should be punished under Article 15, Uniform Code of Military Justice (UCMJ) based on allegations that the applicant was, on or about 29 May 02, found drunk while on duty as noncommissioned officer in charge (NCOIC) of document processing.  The applicant was advised of her rights in the matter.  After consulting military legal counsel, the applicant waived her right to demand trial by court-martial, accepted the nonjudicial proceedings under Article 15, and submitted written comments for review.  On 7 Jun 02, after considering the matters presented by the applicant, the commander found that the applicant had committed the alleged offense and imposed punishment.  The applicant was reduced from the grade of technical sergeant to staff sergeant.  The applicant appealed the punishment but it was denied by the appellate authority.  On 21 Jun 02, legal authority found that the nonjudicial proceedings under Article 15 were legally sufficient.

On 25 Jun 02, the applicant’s commander notified her that he was considering whether she should be punished under Article 15, Uniform Code of Military Justice (UCMJ) based on allegations that the applicant was, on or about 20 Jun 02, found drunk on duty at the --d Comptroller Squadron.  The applicant was advised of her rights in the matter.  After consulting military legal counsel, the applicant waived her right to demand trial by court-martial, accepted the nonjudicial proceedings under Article 15, and submitted written comments for review.  On 1 Jul 02, after considering the matters presented by the applicant, the commander found that the applicant had committed the alleged offense and imposed punishment.  The applicant was reduced from the grade of staff sergeant to senior airman.  The applicant appealed the punishment but it was denied by the appellate authority.  On 12 Jul 02, legal authority found that the nonjudicial proceedings under Article 15 were legally sufficient.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating that the commander was and is in the best position to evaluate the information, consider the facts and circumstances, consider the applicant's prior and current behavior, and determine the most appropriate and effective course of action.  The commander had the tools to mitigate the punishments he imposed and they were not employed.  The commander still has the ability to set aside the action, should that be appropriate.  The commander, however, is the only authority with the requisite knowledge and perspective to best utilize those tools constructively and appropriately.  For the AFBCMR to act without that knowledge and perspective could very well be counterproductive.

In AFLSA/JAJM's view, a set aside should only be granted when the evidence demonstrates an error or a clear injustice.  Failing or refusing to remember drinking alcohol is not a defense to drunk on duty.  The basis of the applicant's request for relief was insufficient to warrant setting aside the Article 15 actions, and did not demonstrate an equitable basis for relief.  The applicant provided no evidence of a clear error or injustice related to the nonjudicial punishment actions.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

AFMOA/SGZF stated that the records and documents submitted indicated that the applicant received appropriate treatment for her addiction.  However, AFI 44-121 states that the treatment team will meet within ten (10) days of a patient's completion of an intensive outpatient, partial day treatment, or inpatient treatment program to review progress and recommend a course of treatment for aftercare.  The applicant completed the Intensive Short Term Outpatient Program (ISTOP) in Jul 02.  According to the copies of the records in the package, the initial treatment team meeting did not occur until 17 Jan 03, which did not meet the guidance in the AFI 44-121.  However, there was no evidence to suggest that the treatment the applicant received did not meet the standards of care.

A complete copy of the AFMOA/SGZF evaluation is at Exhibit D.

HQ USAF/JAA recommended denial indicating that even assuming the FSO's statement was release of Privacy Act protected information contained in an Air Force official system of records, it did not affect the appropriateness and legitimacy of the applicant's nonjudicial punishment actions for her misconduct.  If an unauthorized and inappropriate release of Privacy Act protected information was substantiated, the offender may be subjected to Air Force punitive action.  The aggrieved individual's remedy is to file a civil suit against the Air Force for failing to comply with the Privacy Act and the responsible offender may be found guilty of a misdemeanor and fined.  The remedy the applicant seeks--restoration of rank to E-6, is not a remedy for an alleged Privacy Act violation.

In HQ USAF/JAA's opinion, the applicant has failed to demonstrate the existence of any error or presented facts and circumstances supporting an injustice warranting a correction of her military records.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit E.

AFPC/DPPPWB indicated that it is their opinion that the demotion action taken against the applicant was procedurally correct and there was no evidence that there were any irregularities or that the case was mishandled.

A complete copy of the AFPC/DPPPWB evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinions and furnished a detailed response.  She indicated that she was not proud of her actions, knows that her actions were wrong, and that she deserved to be punished.  She has paid for her actions continuously subsequent to the nonjudicial punishments.  She just does not understand how one of her peers was allowed to get help without any disciplinary action and her punishments were so harsh.  However, the evidence she has gathered leads her to believe that if she had been a male, she would have retained her rank or been promoted.  She prays that the Board will see by the evidence that she has provided that her rights were violated.

Applicant's complete response, with attachments, is attached at Exhibit H.

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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.  The applicant's complete submission was thoroughly reviewed and her contentions were duly noted.  However, we do not find the applicant’s assertions or the documentation presented in support of her appeal sufficient to persuade us that corrective action is warranted.  The evidence of record indicates that the applicant's commander determined that she had committed the alleged offenses of being drunk while on duty, resulting in her nonjudicial punishments under Article 15 that reduced her in rank.  We also note that her appeal of the punishments were denied by the appellate authority.  We are not inclined to disturb the discretionary judgment of commanding officers, who are closer to events, absent a strong showing of abuse of that authority.  In view of the foregoing, and in the absence of clear-cut evidence to the contrary, we conclude that the applicant has failed to sustain her burden of establishing that she has suffered either an error or an injustice.  Accordingly, 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 AFBCMR Docket Number BC-2003-00760 in Executive Session on 7 Oct 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Feb 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 4 Apr 03.
    Exhibit D.  Letter, AFMOA/SGZF, dated 16 May 03.
    Exhibit E.  Letter, HQ USAF/JAA, dated 14 Jul 03.
    Exhibit F.  Letter, AFPC/DPPPWB, dated 28 Jul 03.
    Exhibit G.  Letter, SAF/MRBR, dated 15 Aug 03.
    Exhibit H.  Letter, applicant, dated 18 Aug 03, w/atchs.

                                   
                                   Panel Chair