RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01608
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His rank of staff sergeant (E-5) be restored, with a date of rank (DOR) of 1 Dec 99. 

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APPLICANT CONTENDS THAT:

He was told by his commander that his rank would be restored after he was given nonjudicial punishment under Article 15 for operating a passenger vehicle while drunk.  However, he never checked the regulations to determined what options were available to him.  When he finally did inquire, it was determined that the only way the commander could restore his rank was to set aside the punishment, which would mean a retroactive DOR, pay and allowances.  The commander felt that this action was inappropriate for such a serious offense. 

In support of his appeal, the applicant provided an expanded statement, a message from the area defense counsel (ADC), a statement from his commander, and copies of his last five Enlisted Performance Reports (EPRs), an Air Force Commendation Medal (AFCM) citation, and a certificate for award of the Air Force Achievement Medal (AFAM).

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 DOR of 8 Apr 02.  His Total Active Federal Military Service Date (TAFMSD) is 7 Apr 92.

On 22 Mar 02, the applicant’s commander notified him that he was considering whether he should be punished under Article 15, Uniform Code of Military Justice (UCMJ) based on allegations that the applicant did, on or about 9 Mar 02, operate a vehicle while drunk.  The applicant was advised of his rights in the matter.  After consulting military legal counsel, the applicant waived his right to demand trial by court-martial, accepted the nonjudicial proceedings under Article 15, and submitted written comments for review.  On 8 Apr 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, and was ordered to forfeit $408.00 and perform 14 days of extra duty, which were suspended until 7 Oct 02, after which they were remitted.  The applicant appealed the punishment but it was denied by the appellate authority.  On 18 Apr 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 in view of the applicant's eligibility to test for promotion to the grade of staff sergeant prior to his mandatory separation date, they believe the commander's efforts to support the applicant to achieve that goal through that mechanism is more in accord with the regulatory guidance and the appropriate exercise of command discretion than would be a set aside under the circumstances described.  In their view, the evidence presented by the applicant was insufficient to warrant setting aside the Article 15 action, and did not demonstrate an equitable basis for relief.

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

AFPC/DPPPWB deferred to AFLSA/JAJM's recommendation.  However, they indicated that should the Board remove the Article 15, the applicant would be entitled to supplemental consideration for promotion to the grade of technical sergeant beginning with cycle 02E6, providing he is otherwise eligible and recommended by his commander.

AFPC/DPPPWB noted that the applicant reaches his high year of tenure (HYT) on 7 Apr 04.  He has tested for cycle 03E5 and if not selected, he will be separated.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a response indicating that he made a huge mistake when he decided to drink and drive.  He had an outstanding career until his driving under the influence (DUI) offense.  He has continued to do well.  However, if he is not promoted in Aug 03, it will be the end of his career after 12 years.  He understands the severity of the offense but to cripple him for the rest of his life is not an appropriate punishment.  He is asking that the Board favorably consider restoring his rank of staff sergeant so that he can continue excelling in the career that he loves.

Applicant's complete response 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The evidence of record indicates that the applicant received nonjudicial punishment under Article 15 for operating a vehicle while drunk, resulting in his reduction from the grade of staff sergeant to senior airman.  After a careful review of the facts and circumstances of this case, we find no evidence which convinces us that the applicant did not commit the alleged offense.  Therefore, we are not inclined to remove the Article 15 from the applicant’s records absent a strong showing the commander who imposed the punishment abused his discretionary authority.  Notwithstanding this, we note that while the commander believed the punishment was appropriate, based on the applicant's sustained superior performance and attitude, he was willing to consider reinstating the applicant's rank of staff sergeant.  However, he indicated that because of the seriousness of the applicant's offense, he would not entertain a retroactive DOR, and that he was only willing to reinstate the applicant's rank after one year had elapsed from the date of the punishment.  After further investigation, the commander stated that he discovered he could not reinstate the applicant's rank without providing him a retroactive DOR.  However, the commander maintained his position that the offense did not merit a retroactive DOR.  In view of the commander's desire to eventually restore the applicant's rank of staff sergeant, albeit one year from the date of punishment, we are inclined to offer the applicant the intended relief.  Therefore, we recommend that the applicant's records be corrected to reflect that he was promoted to the grade of staff sergeant effective and with a DOR of 8 Apr 03.

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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 he was promoted to the grade of staff sergeant effective and with a date of rank of 8 Apr 03.

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The following members of the Board considered AFBCMR Docket Number BC-2003-01608 in Executive Session on 26 Aug 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 2 May 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 30 May 03.
     Exhibit D.  Letter, AFPC/DPPPWB, dated 24 Jun 03.
     Exhibit E.  Letter, SAF/MRBR, dated 11 Jul 03.
     Exhibit F.  Letter, applicant, dated 28 Jul 03.

                                   Panel Chair

AFBCMR BC-2003-01608

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 , be corrected to show that he was promoted to the grade of staff sergeant effective and with a date of rank of 8 Apr 03.

                                                                           Director
                                                                           Air Force Review Boards Agency