RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01884
		INDEX CODE:  107.00
	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that he was not demoted to the grade of technical sergeant (E6), that he retired in the grade of master sergeant (E7, and that his retirement pay be corrected to reflect retirement in the grade of master sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 he received for committing adultery was too harsh when considering his exemplary service record and because this act of misconduct, which was committed while he was separated from his wife, was his only mistake.

In support of his request, applicant submits a personal statement, and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty. 

Applicant’s complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 7 February 1977 for four (4) years as an airman basic.  He was a master sergeant assigned to the --- AFB, California when his commander informed him on 7 June 1991, that he was considering Article 15, UCMJ, action.  He was accused of adultery in violation of Article 134, UCMJ.  On 11 June 1991, without consulting with counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He did not request a personal appearance with the commander nor submit a written statement.  On 11 June 1991, his commander determined that he committed the offense alleged and imposed punishment consisting of a reduction in grade to technical sergeant (E6).  The applicant did not appeal.  The record was found legally sufficient on 17 June 1991.  The applicant voluntarily retired due to a reduction of force in the grade of technical sergeant on 30 September 1994 with over 18 years of active duty service.

On 6 August 2001, the SAF Personnel Council determined that the applicant served satisfactorily in the grade of master sergeant.  It directed the applicant’s advancement in grade on the retired list effective 7 October 2006 (completion of 30 years active plus service on the retired list).

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  Nonjudicial punishment is permitted by Article 15, UCMJ (10 U.S.C. 815), and governed by the Manual for Courts-Martial (MCM) and Air Force Instruction (AFI) 51-202.  The procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  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.  Likewise, the commander was given the responsibility to determine an appropriate punishment if he determined the applicant had committed the offense.  There was sufficient evidence for the commander to determine the offense had been committed.  Neither the commander’s findings nor punishment are arbitrary or capricious and should not be disturbed.  

The applicant’s military records reveal he will eventually get some of the relief he is requesting.  On 6 August 2001, the SAF Personnel Council determined the applicant served satisfactorily in the grade of master sergeant.  It directed the applicant’s advancement in grade on the retired list effective the date of completion of all required service.

A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.

The AFLSA/JAJM evaluation is attached at Exhibit C.

AFPC/DPPPWB recommended the applicant's request be denied.  The demotion action taken against the applicant was procedurally correct and there is no evidence there were any irregularities or that the case was mishandled.  Since there is no evidence of error or injustice related to the demotion action, recommend applicant’s request be denied.

The DPPPWB evaluation is attached at Exhibit D.

AFPC/DPPRRP recommends denial.  In accordance with Section 8961, Title 10, U.S.C., applicant was correctly retired in the grade of technical sergeant, which was the grade he held on the date of his retirement.  

The law which allows for advancement of enlisted members of the Air Force, when their active service plus service on the retired list totals 30 years, is very specific in its application and intent.  On 6 August 2001, the SAF/PC made the determination that the applicant did serve satisfactorily in the higher grade of master sergeant within the meaning of Section 8964, Title 0, U.S.C. and he will be advanced to the grade of master sergeant effective 7 October 2006.

The DPPRRP evaluation, with attachments is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the advisories and states that he was never informed of his right to have his case reviewed and feels that retired member’s should be afforded the opportunity for help after retirement.

He also states that after he was reassigned to Turkey, his former commander contacted his commander to discuss a possible set aside of the Article 15 that he received.  He contends that he was unjustly handed this punishment and also believes that his commander wanted to reduce the punishment after the applicant was reassigned to another organization.  The applicant states that at the time of the offense he had served over 18 years and received numerous medals and decorations and the punishment he received was uncalled for.  His acceptance of the Article 15 punishment was not an admission of guilt, but an acknowledgement of the punishment imposed.

His complete submission is at Exhibit G.

_________________________________________________________________

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.  After a thorough review of the applicant’s submission and the available evidence of record, we are not persuaded that the relief requested should be granted.  We took notice of the complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the former member has not been the victim of an error or injustice.  There was no evidence presented, other than his own assertions, which would lead us to believe that his records should be corrected to show that he retired in the grade of master sergeant.  Therefore, we find no compelling basis to warrant favorable consideration of the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of an 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 no considered with this application.

_________________________________________________________________

The following members of the Board considered Docket Number BC-2003-01884 in Executive Session on 21 October 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 29 May 03, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 7 Jul 03.
	Exhibit D.	Letter, AFPC/DPPPWB, dated 25 Jul 03.
	Exhibit E.	Letter, AFPC/DPPRRP, dated 18 Aug 03, w/atchs.
	Exhibit F.	Letter, SAF/MRBR, dated 22 Aug 03.
	Exhibit G.	Letter, Applicant, dated 28 Aug 03.