RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03080
		INDEX CODE:  133.03, 114.03
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  She be restored to the grade of staff sergeant with an effective date and date of rank of 1 Oct 01. 

2.  It appears she is requesting that the reference to action under the Uniformed Code of Military Justice (UCMJ) be removed from her Enlisted Performance Report (EPR) rendered for the period 5 Apr 01 through 7 May 02

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APPLICANT CONTENDS THAT:

She was provided squadron funded TDY orders to attend a medical appointment at Landstul GE from 8 - 9 Apr 02, but was determined to be AWOL for not being at Stuttgart on the 8 Apr 02.  Her TDY request was signed off by her command, she filed a travel voucher and was reimbursed for the 2-day appointment, but was still deemed AWOL.  

On 29 Apr 02, she was reduced in rank to the grade of sergeant with a forfeiture of $200 pay per month for 2 months.  Upon her arrival at her new duty station her new commander issued supplementary UCMJ action and restored her to the grade of staff sergeant with a new date of rank of 29 Aug 02.

In support of her request, applicant provided a copy of her travel orders, her travel voucher summary, email communiqués, letters of support, her Record of Nonjudicial Punishment Proceedings, and her Record of Supplementary Action Under Article 15, UCMJ.  Her complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted her initial enlistment in the Regular Air Force on 7 Dec 95.  She was progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 1 Nov 01.  

On 19 Apr 02, the applicant was notified by her commander of her intent to recommend nonjudicial punishment under Article 15 of the UCMJ for failure to go at the time prescribed to her appointed place of duty on 8 Apr 02.  The applicant had a medical appointment at Landstuhl Regional Medical Center at 0930 on Tuesday, 9 Apr 02.  Because she is stationed at Stuttgart, a 2-hour drive away, she requested permission from her supervisor to leave on Monday, 8 Apr 02, and stay overnight.  According to her supervisor, he granted the request after informing her she would be required to work Monday morning and leave Monday afternoon.  According to the applicant and a witness to a conversation between her and the supervisor, she stated she would be out of the office all day on both Monday and Tuesday.  She did not go to work at all on Monday, 8 Apr 02.  She was advised of her rights in this matter and acknowledged receipt of the notification on 24 Apr 02.  After consulting counsel, the applicant waived her right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written presentation to her commander.  On 29 Apr 02, after consideration of all the facts, her commander determined that she committed one or more of the offenses alleged and imposed punishment on the applicant.  She was reduce in grade to senior airman with a date of rank of 29 Apr 02, ordered to forfeit $200 pay per month for 2 months and was reprimanded.  The portion of her punishment which required forfeiture of pay was suspended until 28 Oct 02.  The applicant appealed her punishment to USAFE/CV.  Her appeal was denied.  

On 29 Aug 02, her commander of her new unit mitigated the portion of her nonjudicial punishment which called for reduction to senior airman to: forfeiture of $700 pay per month for 2 months.  Forfeitures in excess of $400 pay per 2 months, suspended through 28 Feb 03. 

The applicant's EPR profile is as follows:

		PERIOD ENDING	PROMOTION RECOMMENDATION

			7 May 03		5
			7 May 02		2 - Contested Report
			4 Apr 01		5
			4 Apr 00		5
			4 Apr 99		5
			4 Apr 98		5
			4 Apr 97		4

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states applicant's complaint lies not in the process, but in the result.  By electing to resolve the allegation in the nonjudicial forum she placed the responsibility to decide whether she committed the offense with her commander.  The commander had to weigh all the evidence before her to make her decision and ultimately resolved the issue against the applicant.  The appellate authority agreed and provided the applicant no relief.  The applicant should not prevail absent clear error or injustice.  When evidence of an error or injustice is missing, it is clear the BCMR process is not intended to second-guess the appropriateness of field commanders.  Congress and the Secretary have designated the commander and the appeal authority the responsibility for determining the appropriateness of an otherwise lawful punishment.  As long as they are acting within the scope of authority granted, their judgment should not be disturbed just because others might disagree.  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 JAJM evaluation is at Exhibit C.

AFPC/DPPPE recommends denial.  DPPPE states while the reduction portion of the applicant's Article 15 was mitigated, the comment made on the EPR referencing her receiving an Article 15 is still a valid statement as the Article 15 itself was not set aside.  A report is considered an accurate assessment when written unless documentation is provided proving otherwise.  DPPPE found no inaccuracies in the contested report.  The DPPPE evaluation is at Exhibit D.

AFPC/DPPPWB states should the Board set aside the Article 15 and restore her rank to staff sergeant with her original date of rank of 1 Oct 01, she would become eligible for promotion consideration to technical sergeant for cycle 04E6.  Should the Board remove the contested EPR, no supplemental promotion consideration would be necessary since the EPR was not used in past cycles.  The DPPPWB evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 9 Jan 04 for review and comment within 30 days.  As of this date, this office has received no response.

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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 an injustice.  While we do not find that the evidence presented is sufficient to exonerate the applicant of any guilt with respect to the offense for which the nonjudicial punishment was imposed, we do believe there are mitigating circumstances present which lead us to believe the punishment imposed was excessively harsh.  There is some indication that the applicant's decision to depart her duty location may have been the result of an honest misunderstanding.  In light of this and in consideration of her previous and subsequent record of outstanding performance, we believe some relief is appropriate in this case.  While we do not find removal of the Article 15 from the record fitting, it is our opinion that suspension of the punishment would be an appropriate form of relief based on the evidence provided.  We note that the applicant requested her grade be restored with a date of rank and effective date of 1 Oct 01.  However, since a review of her grade history in the Personnel Data System reflects that her original promotion was actually on 1 Nov 01, it is our opinion that she should be restored to staff sergeant on that date.  Accordingly, we do so recommend.

4.  Regarding her request that her EPR be abolished with regards to her Article 15 action, we do not find her assertions sufficiently persuasive to warrant a change to the contested EPR.  In this respect, since we do not find removal of the Article 15 in its entirety appropriate, we are inclined to agree with the Air Force office of primary responsibility that the comment referencing the Article 15 and the assigned ratings remain valid.  We are not persuaded by the evidence presented that the contested report is not an accurate depiction of her performance and demonstrated potential for the period in question.  Therefore, in the absence of evidence to the contrary, we find no basis upon which to favorably consider that portion of her request.

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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 on 29 August 2002, that portion of the nonjudicial punishment under Article 15, UCMJ, imposed on her on 29 April 2002, which provided for reduction in grade from staff sergeant (E-5) to senior airman (E-4), was set aside thereby restoring her to the grade of staff sergeant (E-5), with a date of rank and effective date of 1 November 2001.

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The following members of the Board considered AFBCMR Docket Number BC-2003-03080 in Executive Session on 31 Mar 04, 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 8 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 31 Oct 03.
    Exhibit D.  Letter, AFPC/DPPPE, dated 1 Dec 03.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 15 Dec 03.
    Exhibit F.  Letter, SAF/MRBR, dated 9 Jan 04.

					

AFBCMR BC-2003-03080

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 on 29 August 2002, that portion of the nonjudicial punishment under Article 15, UCMJ, imposed on her on 29 April 2002, which provided for reduction in grade from staff sergeant (E-5) to senior airman  (E-4), was set aside thereby restoring her to the grade of staff sergeant (E-5), with a date of rank and effective date of 1 November 2001.