RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00927
		INDEX NUMBER:  126.00
	XXXXXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 20 Sep 00 be set aside and all property, rights, and privileges of which he was deprived be restored, which includes the following:

	  a. His grade of master sergeant (MSgt) be restored.

	  b. He receive all pay and allowances lost due to the Article 15.

	  c. His retirement points be retroactively adjusted to recoup for lost tours of duty from 28 Sep 00 to the date of removal of the Article 15 from his record.

	  d. All negative documents resulting from the Article 15 to include evaluations, reprimands, etc., be removed from his record.

	  e. His involuntary transfer to an inactive status in the Reserves be reversed.

	  f. His retirement orders be rescinded.

	  g. He be reinstated as an Individual Mobilization Augmentee.

	  h. He be promoted to the grade of senior master sergeant.

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APPLICANT CONTENDS THAT:

The Air Force lacked jurisdiction to conduct proceedings under Article 15 against him.

The applicant provides a copy of the opinion of the US Court of Appeals decided 6 Dec 02 in which the court expresses that the dismissal by the district court of the applicant’s claim for equitable relief against the Air Force’s alleged excess of jurisdiction should be reversed and remanded back to the district court for further proceedings.  The applicant also provides a copy of the judgment ordering this finding.

The applicant provides a copy of an order from the US Court of Appeals granting his requests for court costs in the amount of $342.88.

The applicant provides a copy of a Temporary Restraining Order (TRO), dated 20 Jun 00, restraining the Air Force from enforcing the orders directing the applicant to report to New Mexico on   19 Jun 00 and from taking the applicant into custody because of his alleged absence without leave from New Mexico.

The applicant provides a copy of Reserve Order CA-010741 discharging him from the Air Force Reserve effective 1 Jul 02.

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

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STATEMENT OF FACTS:

The applicant, a Reserve Individual Mobilization Augmentee, began an active duty tour in the grade of master sergeant on 21 Mar 00.  On 26 Mar 00, the Air Force began investigating complaints against the applicant for sexual harassment.  Upon learning of the investigation, the applicant departed his assigned duty station on 8 Jun 00, leaving a note saying that he was “voluntarily terminating” his active-duty tour.  On 18 Jun 00, he was released from active duty and transferred to the Air National Guard.  Because the Air Force regarded the applicant’s active duty tour as requiring him to serve an additional ten days, it issued an order recalling the applicant to active duty under 10 U.S.C., Section 12301(d).  The applicant filed suit in the US District Court for the District of Columbia, alleging that various Air Force officers and civilian employees had violated his due process rights, had engaged in race discrimination and reprisals for the applicant having filed a complaint with the Inspector General.  The applicant sought and obtained a TRO barring enforcement of the Air Force’s recall order on the ground that 10 U.S.C., Section 12301(d), did not authorize the involuntary recall of a reservist to active duty.  The Air Force then rescinded the recall order, and the court dissolved the TRO.  

About one month later, the Air Force issued new orders, this time under 10 U.S.C., Section 802(d), Article 2(d), recalling the applicant to active duty so that he could be subjected to disciplinary punishment involving both the sexual hararassment allegations and AWOL allegations.  The applicant again sought a TRO, arguing that although 10 U.S.C., Section 802(d), authorized involuntary recall of members of a reserve component, as an IMA he was not a member of a reserve component and therefore not subject to recall.  The district court denied the applicant’s TRO and he reported to active duty.  

On 13 Sep 00, the applicant was offered nonjudicial punishment under Article 15, UCMJ, for being absent without leave (AWOL) in violation of Article 86, UCMJ, and maltreatment (sexual harassment) of a subordinate, in violation of Article 93, UCMJ.  On 14 Sep 00, the applicant waived his right to demand trial by court-martial and accepted proceedings under Article 15.  He submitted a written presentation and made a personal appearance before his commander.  On 20 Sep 00, the applicant’s commander determined that the applicant was AWOL but did not commit maltreatment.  The commander imposed punishment consisting of a one-grade reduction to the grade of technical sergeant.  The applicant appealed the punishment.  The appellate authority denied the applicant’s appeal.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends that the applicant’s requests be denied.  The applicant’s jurisdictional claim to the district court was remanded to the court for further proceedings to determine whether the applicant was properly subject to recall to active duty in connection with the Article 15 action.  This action is still pending.  The applicant also has not provided any evidence to support his position that the Article 15 action against him lacked legal sufficiency.

While the applicant was serving an active duty tour scheduled to end on 18 Jun 00, he learned that he was being investigated for sexual harassment of a subordinate.  He then left his duty assignment on 8 Jun 00 without authority and remained gone until recalled pursuant to Art 2(d), Uniform Code of Military Justice (UCMJ), in Sep 00 to face Article 15 action for absence without leave (AWOL), 8-18 Jun 00, and maltreatment.  A review of the applicant’s personnel records confirms that he was in an active duty status at the time of the commission of the alleged offenses.  It also confirms that he was a member of the Air Force Reserve component at the time of his recall to active duty in Sep 00 and was subject to recall to active duty under Art 2(d), UCMJ.  This provision authorizes the recall to active duty of an individual member of a reserve component to face court-martial or Article 15 action if two essential criteria are met.  One, was the applicant on active duty or in an inactive-duty training status at the time of the commission of the alleged offenses.  Two, did the applicant remain a member of a reserve component (reserve or national guard) until the time of his recall.  The applicant met both of these criteria.  It is unlikely that the district court will reach a contrary result.

The applicant raises no factual claims of innocence.  By electing to resolve the allegation in the nonjudicial forum, applicant placed the responsibility to decide whether he had committed the offense with his commander.  The commander determined that the applicant had committed the AWOL offense and absolved him of the maltreatment charge.  The appellate authority agreed and provided the applicant no relief on appeal

The complete evaluation, with attachments, is at Exhibit C.

ARPC/JA also recommends that the applicant’s requests be denied based on the rationale outlined in the AFLSA/JAJM evaluation.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluations by restating his requests to the Board.  He states that due to the ruling by the US Court of Appeals that he had a constitutional right to challenge the jurisdiction of the Air Force; the Air Force’s actions “cannot stand nor have the presumption of correctness or completeness.”

The applicant presents the statement of facts from his perspective contending that he was an Individual Mobilization Augmentee and not a member of any unit of the Air Force or Air Force Reserves.  The applicant states that the evaluation prepared by AFLSA/JAJM does not address the substantive opinion of the US Court of Appeals rejecting the district court’s finding of fact that the applicant was properly recalled under 10 U.S.C., Section 802(d).  Based upon the ruling, the applicant was a civilian at the time the Article 15 was presented to him and remained a civilian throughout the process.  The applicant references a case similarly ruled by the Third Circuit in Valn v. United States.  Under the Hirschberg doctrine, military jurisdiction over an individual for offenses committed during a period of enlistment or obligated service lapses after the discharge for that period.  The applicant references his DD Form 214 as evidence that he was discharged.  The applicant further opines that AFLSA/JAJM does not offer any legal arguments nor does it present any legal authority to support ignoring the opinion of the Appeals Court.  He states that he has a clear constitutional right to challenge the jurisdiction and authority of the Air Force to recall him involuntarily to active duty for UCMJ punishment.  Based on the ruling by the US Court of Appeals, the involuntary recall, ensuing non-judicial punishment and all other subsequent disciplinary actions against him were “legally invalid and must be reversed.”

The applicant again attaches copies of the documents provided with his initial application.

The applicant’s complete response, with attachments, is at Exhibit F.

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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, 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.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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-2003-00927 in Executive Session on 10 March 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 22 Apr 03.
    Exhibit D.  Memorandum, ARPC/JA, dated 30 Dec 03.
    Exhibit E.  Letter, SAF/MRBR, dated 8 Jan 04.
    Exhibit F.  Letter, Applicant, dated 26 Jan 04, w/atch.

                                   Panel Chair