RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01543
		INDEX CODE:  105.01, 111.02, 
		             123.00, 131.10
		COUNSEL:  NONE	

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  His lost time be removed from his records.

2.  His court-martial action be removed from his records.

3.  His referral Enlisted Performance Report (EPR) closing 30 Jan 03, be removed from his records.

4.  His selection for promotion to the grade of technical sergeant by restored.

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APPLICANT CONTENDS THAT:

In September 2001, he was accused of aggravated sexual assault and providing alcohol to a minor.  While he was on leave in --- his niece's 14-year old friend first accused him of sexually assaulting her and after changing her story several times said she had consensual sex with him.  He purchased alcohol and drank while he was packing to return to his duty station.  When he noticed his niece and her friend were sneaking alcohol, he immediately confiscated the bottle from them.  He was later arrested by civilian authorities and was eventually tried by court-martial in August 2002 for Carnal Knowledge and providing alcohol to a minor.  During the trial his niece stated that she made the alcoholic drinks for her and her friend.  His counsel questioned his 7-year old daughter who said she saw the teenage girls sneaking the alcohol, but she was not used to testify.  He was acquitted of the Carnal Knowledge charge and convicted of providing alcohol to a minor.  

At the time he had a line number for promotion to technical sergeant.  Upon his return from confinement, his commander notified him that he was not recommending him for promotion.  His commander stated that he had spoken to members of the trial panel.  He was later told that it was not proper conduct for anyone to speak to the panel members about the voting case.  Prior to this unfortunate incident he was regarded as one of the sharpest troops in his unit.  As a result of the court-martial, he has a referral EPR.  His previous EPRs show he is deserving of the promotion or at least the opportunity to test again.  He will need an EPR that is not a referral before 31 Dec 03 in order to be eligible to test in the 2004 test cycle.  Applicant feels as though he is still being punished for an incident that started in 2001.  He understands that being convicted of any crime has repercussions and is punishable.  Conviction does not mean guilt.  The charge of providing alcohol to a minor might warrant a reprimand or nonjudicial punishment, but not alter the positive career he has had thus far and jeopardize his military future.

In support of his request, applicant provided a personal statement, documentation associated with his request for clemency, extracts from his court-martial proceedings, and character references.  His 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 26 Oct 88.  He was progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 20 Sep 97.  

On 1 Aug 02, applicant was tried by general court-martial for a specification of carnal knowledge and providing alcohol to minors.  He pleaded not guilty to both charges.  He was acquitted of the carnal knowledge charge and found guilty of providing alcohol to minors.  His sentence, adjudged was a reprimand, forfeiture of $500 pay per month for two months and confinement for 18 days.  However, because of good time, he only served 8 days in confinement.  

Applicant was tentatively selected for promotion to the grade of technical sergeant for promotion cycle 02E6.  His promotion sequence number would have incremented on 1 Mar 03; however, in August 2002 his commander non-recommended the applicant for promotion.  He was also ruled ineligible for promotion due to the court-martial and receiving a referral EPR closing 30 Jan 03.  

The following is a resume of the applicant's recent EPR profile:

	PERIOD ENDING	PROMOTION RECOMMENDATION

		30 Jan 03		3 - Contested Report
		13 Apr 02		4
		13 Apr 01		5
		13 Apr 00		5
		13 Apr 99		5
		13 Apr 98		5

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states the applicant implies that his crime is not one that ordinarily rises to the disciplinary level of court-martial.  While he was convicted of the lesser of the two charges, the charge he was convicted of is a valid charge under the UCMJ and the court-martial is a valid option of discipline format.  

The applicant seeks redress for the administrative repercussions of having been convicted of a crime.  He has identified no error or injustices related to the court-martial.  He presents no case to support the relief he requests, nor does he demonstrate an equitable basis for relief.  The JAJM evaluation is at Exhibit C.

AFPC/DPPPEP recommends denial.  DPPPEP states that the rating chain was following the guidance of AFI 36-2406 when they documented the court-martial in the applicant's performance report.  No support from the rating chain has been provided to support his contention to have the report voided and he never provided any clear reasoning why the report was not an accurate assessment.  He only states the report is interfering with his career as support to void it.  Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  He did not provide any evidence that the 30 Jan 03 report was not an accurate assessment when written.  The DPPPEP evaluation is at Exhibit D.

AFPC/DPPPWB defers to the recommendations of DPPPEP and JAJM, and states that since his 30 Jan 03 EPR is referral, he will be ineligible for promotion consideration for the 2004 cycle.  The DPPPWB evaluation is at Exhibit E.  

AFPC/DPW recommends denial.  DPW states that in accordance with Title 10 USC and the DoD Financial Management Regulation, anytime a member spends time AWOL, deserter, or in any confinement status, whether it is pre- or post- trial or in connection with a trial, is considered non-creditable service and is referred to as "lost" time.  The DPW evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated his previous contentions and adds he provided the testimonies of three individuals involved to show that all testimonies were different and should show reasonable doubt as to how the alcohol was consumed by the minors.  His referral report should have been a Command Directed report after the court martial.  That way after 60 days he could have received another report and been eligible to test for technical sergeant the following cycle.  The only negative comment in his 2003 report should have been the court martial.  The alleged incident occurred in 2001, outside the reporting period.  In addition he did not receive a performance feedback.  No effort was made to prevent him from getting a referral report as was promised.  

In further support of his request, applicant provided a PC-III worksheet, his Letter of Evaluation (LOE), extract of AFI 36-2406, training certificates, letters of appreciation, and his request for clemency.  His complete submission, with attachments, is 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 that would warrant favorable consideration of the applicant's stated request.  With respect to the removal of the court-martial action, the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950.  While the Board is permitted to correct the records related to action on sentencing, we are not persuaded that such action in this case is warranted.  Regarding his request for removal of his referral EPR, evidence has not been presented which would lead us to believe that the contested EPR was rendered in error or is unjust.  With respect to his request that his promotion sequence number be reinstated, his contentions are duly noted; however, we do not find his uncorroborated assertions sufficiently persuasive to override the rationale provided by the Air Force.  The applicant states that his commander inappropriately denied his promotion to technical sergeant.  We note that regardless of his commander's action, the court-martial conviction and referral EPR rendered him ineligible for promotion.  

4.  Notwithstanding the above, and in view of the applicant's prior outstanding service and the volume of support he has received, we believe that some relief is warranted.  In this respect, we note that his referral EPR closes 30 Jan 03, requiring his next annual EPR to close on 30 Jan 04.  Since 30 Jan 04 is after the promotion eligibility cut-off date of 31 Dec 03 for the 04E6 promotion cycle, he will still be ineligible for promotion consideration for that cycle.  The alleged incident occurred in 2001, his court-martial convened in 2002, and the applicant was rendered a referral EPR in 2003, which will render him ineligible for promotion throughout the 2004 testing cycle.  It is our opinion that it would be an injustice for the applicant to continue to suffer from the adverse affects of his actions for another year.  We believe that the fairest resolution would be to recommend that the closeout of his referral EPR be changed to reflect a closeout date of 29 Dec 02.  This will allow his current supervisor to prepare a performance report prior to 31 December 03 and render him eligible for promotion consideration for the 2004 testing cycle and compete for promotion to technical sergeant.  Therefore, we recommend that his records be corrected as indicated below. 

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the close-out date of his AF Form 910, Enlisted Performance Report, rendered for the period 14 April 2002 through 30 Jan 2003, be corrected to reflect a close-out date of 29 December 2002 rather than 30 January 2002.

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The following members of the Board considered AFBCMR Docket Number BC-2003-01543 in Executive Session on 29 Oct 03, 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 10 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 10 Jul 03.
    Exhibit D.  Letter, AFPC/DPPPEP, dated 22 Aug 03.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 25 Aug 03.
    Exhibit F.  Letter, AFPC/DPW, not dated, w/atchs.
    Exhibit G.  Letter, SAF/MRBR, dated 12 Sep 03.
    Exhibit H.  Letter, Applicant, dated 8 Oct 03.

					
								Vice Chair

AFBCMR BC-2003-01543

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 APPLICANT, be corrected to show that the close-out date of his AF Form 910, Enlisted Performance Report, rendered for the period 14 April 2002 through 30 Jan 2003, be amended to reflect a close-out date of 29 December 2002, rather than 30 January 2003.

							
							Director
							Air Force Review Boards Agency