RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03734
		
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His nonjudicial punishment under Article 15 of the Uniformed Code of Military Justice (UCMJ) dated 5 April 2000 be reduced to a letter of reprimand.

2.  His referral Enlisted Performance Report (EPR) rendered for the period 14 May 1999 through 13 May 2000 be rewritten or voided from his records.

3. His records be corrected to reflect that he was not administratively demoted from the grade of staff sergeant (E-5), to airman first class (E-3), effective 8 August 2000. 

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APPLICANT CONTENDS THAT:

The checks used for this Article 15 were over a year old (19 Mar 99 and 26 Mar 99).  His wife had written four checks, which were dishonored.  He tried to explain to his commander why the two checks were dishonored in March 1999 but had thrown the proof away because of the age of the documents.  He apologized for the current checks.

The referral EPR only covered a short time - a month or two and did not cover the entire year.  Most of the statements made in the EPR are unsubstantiated by the Administrative Discharge review hearing.  The EPR does not reflect his work.

The rank of staff sergeant was wrongfully taken in August 2000. The minor disciplinary infraction used for the demotion was mostly unsubstantiated in the Administrative Discharge review hearing 

In support of his request applicant provided documents associated with his Article 15 punishment and letters of reprimand; excerpts from the administrative discharge review hearing; statements from wife and co-workers, and copies of EPRs.

Applicant’s 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 7 October 1983.  He continuously served on active duty and was progressively promoted to the grade of staff sergeant, effective and with a date of rank of 1 September 1990.  He served as a fire protection craftsman and subsequently cross-trained as a health services management journeyman in 1995.  On 30 April 2002, he was permanently retired for disability in the grade of airman basic (E-1) with compensable rating of 40 percent after serving 19 years, 1 month and 9 days of total active duty military service.  A grade determination by the Secretary of the Air Force Personnel Council on 27 March 2002 concluded that the applicant had satisfactorily served in the grade of senior airman (E-4) and he was permanently retired in that grade on 29 March 2002.

On 30 March 2000, applicant was notified by his commander of her intent to impose nonjudicial punishment under Article 15, UCMJ.  The specific reasons for this action were that on 19 and 26 March 1999, he did make and utter to Andrews Air Force Exchange certain drafts in the amount of $300.00 and $150.00 for the purpose of buying products obtaining cash or in payment of a debt, and did thereafter dishonorably fail to maintain sufficient funds.  He was advised of his rights in this matter and after consulting counsel, waived his right to demand trial by court martial, accepted Article 15 proceedings, and provided written presentations to the commander. On 10 April 2000, the commander found that he did commit one or more of the offenses alleged and imposed punishment on him consisting of a restriction to the limits of Andrews Air Force Base for sixty (60) days.

On 26 April 2000, the applicant received a letter of reprimand concerning a domestic problem with his spouse.

On 18 May 2000, the applicant received a letter of reprimand for violation of a direct order concerning duty performance.

On 19 June 2000, the applicant received a letter of reprimand for failure to maintain standards in base housing.

On 22 June 2000, applicant was notified by his commander of her intent to impose an administrative demotion based on failure to fulfill NCO responsibilities. The applicant’s Area Defense Counsel appealed the demotion action based on the psychiatric diagnosis.  In a legal review of the case file on   30 July 2000, the staff judge advocate found the case legally sufficient.  On 9 August 2000, the applicant was demoted from the grade of staff sergeant to the grade of airman first class effective and with the date of rank of 8 August 2000.

On 28 June 2000, the applicant received a command directed mental health evaluation, which deemed him unsuitable for continued military service.  He was diagnosis with an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct and a Personality Disorder of mixed avoidant and dependent personality.  

On 17 August 2000, applicant was notified by his commander of her intent to withdraw administrative discharge action.

On 28 November 2001, applicant was notified by his commander of her intent to impose nonjudicial punishment under Article 15, UCMJ.  The specific reasons for this action were on divers occasions between 1 August 2001 and 25 September 2001, he used the America government travel card for personal purposes.  And being indebted to the Bank of America in the sum of $1601.06 for payment on his government credit card, which amount became due and payable on or about 1 September 2001, did from 1 September 2001 and 7 November 2001, dishonorably fail to pay said debt. He was advised of his rights in this matter and after consulting counsel, waived his right to demand trial by court martial, accepted Article 15 proceedings, and provided written presentations to the commander.  On 7 December 2001, the commander found that he did commit one or more of the offenses alleged and imposed punishment on him consisting of a reduction to the grade of airman basic (E-1) suspended until 3 June 2000, after which time it would be remitted without further action, unless sooner vacated, and 30 days extra duty.

In February 2002, Medical Evaluation Board was initiated for Generalized Anxiety Disorder, severe (onset 1988), Depression not otherwise specified (onset June 1999), Dependent Personality Disorder, moderate.  The mental health narrative summary listed as “external precipitating stress”, occupational difficulties, financial difficulties and family stressors.  The applicant had also recently undergone surgery for hallux valgus.  The Informal Physical Evaluation Board (IPEB) found the applicant unfit for continued military service and recommended permanent disability retirement at a combined rating of 40 percent. The applicant concurred with the findings and recommendations of the IPEB.  

EPR profile since 1996 reflects the following:

          PERIOD ENDING	OVERALL EVALUATION

           13 May 96                     4
           13 May 97                     4
           13 May 98                     4
           13 May 99                     4
        *  13 May 00                     1 Referral
           13 May 01                     3 Referral
           13 May 02                     2 Referral

     *  Contested report.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.  They state the applicant should not prevail here absent clear error or injustice.  The applicant claimed in his written presentation in response to the proposed Article 15 action that he unknowingly wrote the bad checks due to unauthorized withdrawals from his checking account by an “advance check-cashing business” causing him to have insufficient funds.  He also contends that his financial record, up to that point, had been clean--though he admits that his family was having financial difficulties.  The applicant also contends that he immediately paid for the dishonored checks.  In a statement attached to his application for correction of military record, the applicant states the checks used for the Article 15 were over a year old at the time of the Article 15 action, that he had attempted to explain to his commander why the two checks were dishonored but had thrown the proof away because of the age of the documents.  He also apologized for his wife having written four additional checks, which were dishonored in 1999.  Those checks were not included in the Article 15 action.  

The applicant’s request to have the Article 15 action reduced to a letter of reprimand is based on the premise that he did not knowingly write the two bad checks. Even accepting that premise as fact, the applicant is not relieved of his responsibility for failing to maintain funds.  Intent to deceive or defraud is not required in commission of the offense for which he was punished. 

The applicant should not prevail here absent clear error or injustice.  By electing to resolve the allegation in the nonjudicial forum, the 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 the commander determined the applicant had committed an offense.  The commander had to weigh all the evidence before her to make a decision.  The applicant did not appeal the commander’s decision.

Moreover, a discharge board consisting of four officers reviewed the Article 15 and evidence of the applicant’s guilt.  The board also determined that the applicant dishonorably failed to maintain sufficient funds in his account to cover the checks.

The applicant’s complaint that the checks were written and dishonored over a year prior to the Article 15 is of no consequence.  The statute of limitations for nonjudicial punishment is two years--nonjudical punishment cannot be imposed for offenses committed more than two years before imposition of punishment.  

When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended to simply second-guess the appropriateness of the judgments of field commanders.  In the case of nonjudicial punishment, Congress (and the Secretary via AFI 51-202) has designated only two officials with the responsibility for determining the appropriateness of an otherwise lawful punishment: the commander and the appeal authority.  So long as they are lawfully acting within the scope of authority granted them by law, their judgment should not be disturbed just because others might disagree.  Commanders “on the scene” have first-hand access to facts and a unique appreciation for the needs of morale and discipline in their command that even the best-intentioned higher headquarters cannot match. 

A set aside should be only granted when the evidence demonstrates an error or a clear injustice.  The applicant has provided no evidence of a clear error or injustice related to the nonjudical punishment action.  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.  

AFLSA/JAJM complete evaluation is at Exhibit C.

AFPC/DPPPE recommends denial and states the allegations made by the applicant are not justified or proven.  There were 297 days of supervision, more than enough time for the rater to make a fair and accurate assessment of the applicant.  The Discharge Board findings substantiated the statements in the report, which make the report accurate.  

Since the applicant has not proven the actual assessment is inaccurate, they strongly recommend the AFBCMR deny the applicant’s request to rewrite or void the report.  However, the report should be administratively corrected.  Since the commander did not properly refer the report based on her ratings, we recommend her initials be removed in Section III block 7 and Section IV (Indorser’s Recommendation) and the AF Form 77 be removed from the record.  The remainder of the report is an accurate assessment and there are no grounds to remove it in its entirety. 

AFPC/DPPPE complete evaluation is at Exhibit D.

AFPC/DPPPWB deferred to the recommendation of AFPC/DPPPE.  The first time the contested report would have normally been considered in the promotion process was cycle 01E6 to TSgt.  However, since the applicant was reduced to the grade of AlC per Special Order AA-XXXX, 6 September 2000 with a date of rank (DOR) and effective date of 8 August 2000, the report was never used in the promotion process.  As a matter of information, the applicant received an Article 15 for wrongful use of a government credit card and indebtedness.  His punishment consisted of a reduction to the grade of airman basic with a new DOR of 4 December 2001 and 30 days extra duty.  He was permanently disability retired in that grade effective 30 April 2002.

AFPC/DPPPWB complete evaluation is at Exhibit E.

BCMR Medical Consultant indicates the mental conditions of Generalized Anxiety Disorder, Adjustment Disorder and Depressive Disorder not otherwise specified were triggered by external stressors of occupational difficulties, financial problems, and family problems.  These conditions do not produce the ability to know right from wrong or conformance of behavior to the right.  The applicant was also diagnosed with Dependent Personality Disorder, a condition that likewise does not impair the ability to know right from wrong or conform to the right.  The condition represents a significant risk factor for poor coping skills and the development of anxiety and depression under periods of stress.  The applicant’s Personality Disorder and other diagnoses combined with the stresses he was experiencing at the time shed insight to the problems he experienced; however, they do not relieve him of responsibility for appropriate consequences of his decisions and behavior.  The reviewer is of the opinion that the disability retirement and disability rating was appropriate. 

BCMR Medical Consultant complete evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant for review and response within 30 days.  As of this date, no response has been received by this office.

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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 an error or injustice.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that the Article 15 should be set aside and his grade of staff sergeant restored to its original DOR.  Applicant’s contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The evidence reflects that the commander initiated Article 15 action based on information she determined to be reliable and that the nonjudicial action was properly accomplished and applicant was afforded all rights granted by statute and regulation.  We have not been convinced, by his submission, that his commander abused her discretionary authority when she imposed the nonjudicial punishment, and since we find no abuse of that authority, we find no reason to overturn the commander’s decision.

4.	In regards to his EPR being rewritten or voided, we are not persuaded that the contested report is an inaccurate depiction of the applicant's performance and demonstrated potential for the period in question.  There were 297 days of supervision for the rater to make a fair and accurate assessment of his performance.  Other than his own assertions, we have seen no evidence that would lead us to believe the report was technically flawed.  Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

5.	Notwithstanding the above, we agree with DPPPE’s recommendation that the report in question should be administratively corrected by removing the commander’s downgrading of the report, since her comments were not referred to the applicant. Therefore, in the absence of persuasive evidence to the contrary, we also find no compelling basis to recommend rewriting or revoking the contested report.

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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 Enlisted Performance Report (EPR), AF Form 910, rendered for the period  14 May 1999 through 13 May 2000 is amended as follows:

	a.  Section III, Performance Factor No. 7: The initials in Block One be deleted.

	b.  Section IV: The initials in Block 1 of the Indorser’s Recommendation be deleted.
	
	c.  The Supplemental Evaluation Sheet, AF Form 77, dated      6 June 2000 be, and hereby is declared void and removed from his records. 

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The following members of the Board considered Docket Number BC-2003-03734 in Executive Session on 27 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 3 Feb 04.
    Exhibit D.  Letter, AFPC/DPPPE, dated 13 Feb 04.
	Exhibit E.  Letter, AFPC/DPPPWB, dated 19 Feb 04.
	Exhibit F.  Letter, BCMR Medical Consultant, 3 Mar 04.
    Exhibit G.  Letter, SAF/MRBR, dated 14 May 04.

                                   

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 Enlisted Performance Report (EPR), AF Form 910, rendered for the period  14 May 1999 through 13 May 2000 be amended:

		      a.  Section III, Performance Factor No. 7: The initials in Block One be, and hereby are deleted.

		      b.  Section IV: The initials in Block One of the Indorser’s Recommendation be, and hereby are deleted.
	
	      c.  The Supplemental Evaluation Sheet, AF Form 77, dated 6 June 2000 be, and hereby is declared void and removed from his records.