RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00487
		INDEX NUMBER:

	XXXXXXXXXX. XXXXXXX	COUNSEL: None 

	XXXXXXX	HEARING DESIRED:  No 

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APPLICANT REQUESTS THAT:

The charge of failure to go, violation of Article 86 of the Uniform Code of Military Justice, be removed from the Article 15 imposed on him on 18 Aug 03.

Applicant requests that his reduction to the grade of technical sergeant (E-6) imposed as punishment under Article 15 on 18 Aug 03 be set aside or suspended and he be returned to the grade of master sergeant (E-7).

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APPLICANT CONTENDS THAT:

His first sergeant was biased and unfairly influenced the Article 15 proceedings against him.

The punishment he received was disproportionate to his offense of unofficial use of his government credit card.  He paid the balances in full each month and used the card for support of his family.  He did not take anything from the government.

His Article 15 was not used as the rehabilitative tool it was intended since he retired.

In support of his appeal, applicant attaches a summary of the charges and payments he made on his government credit card, character references, and copies of the leave log to show he was on leave.

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 18 Sep 79.  He attained the grade of master sergeant (E-7) during his career.  On 5 Aug 03, his commander notified him that he was considering punishing the applicant under Article 15 of the UCMJ for the alleged offenses of violation of Article 92, failure to refrain from using his government credit card for unofficial purposes and violation of Article 86, absent without leave.  The applicant accepted proceedings under Article 15 and attached a written presentation and requested to make a personal appearance.  On 18 Aug 03, the commander determined that the applicant had committed one or more of the alleged offenses.  He imposed punishment consisting of reduction to the grade technical sergeant (E-6), 12 extra days duty, and a reprimand.  The applicant appealed the punishment on 25 Aug 03.  His appeal was denied on 8 Sep 03.  On  21 Sep 03, the applicant applied for voluntary retirement to be effective 1 Dec 03.  His commander approved his request.  On 19 Nov 03, the Secretary of the Air Force Personnel Council determined that the applicant did not serve satisfactorily in a grade higher than technical sergeant (E-6) and would not be advanced under the provisions of Section 8964, Title 19, United States Code.  The applicant was retired effective 1 Dec 03 in the grade of technical sergeant with 24 years, 2 months, and 13 days of service.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s requests.  The applicant’s commander determined that the applicant was AWOL from 15-20 May 03 and that he misused his government credit card.  The applicant provided evidence that he received approval to extend his leave beyond 13 May 03, but, other than his own assertions, no proof that he extended his leave through 20 May 03.

While the applicant contests the AWOL charge, he does not contest his use of his government credit card.  The applicant routinely misused his government credit card over 90 times in a 10-month period. 

A review of the applicant’s submissions indicates that he is not inclined to assume any responsibility for his actions.  When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended simply to second-guess the actions of field commanders.  The applicant’s submissions are insufficient to warrant overturning the commander’s decision that the applicant was AWOL or to set aside that part of the punishment to reduce the applicant in grade.

The complete evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial of the applicant’s request to be advanced in grade to master sergeant (E-7).  At the time the applicant retired, he held the grade of master sergeant.  Although the applicant held the grade of master sergeant, SAFPC determined that the applicant would not be advanced to any higher grade when his total service reaches 30 years.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the Air Force evaluations.  He states that his assertion that the contested Article 15 is his first disciplinary action given in over 20 years was correct as charges made against him in 1981 for housebreaking and indecent assault were dismissed on appeal.  Applicant seeks to provide the basis of his request for correction of his records.  He states that he accepts responsibility for the misuse of his government credit card, but believes there is disparity in the actions taken in these types of offenses.  He cites another case where a Senior NCO committed the same type of offense, but did not suffer the type of punishment he did.  Applicant further addresses the charge against him for failure to go and opines that it is totally without merit.  Finally applicant discusses the role of his first sergeant in his case and how she had disagreement with two other first sergeants who decided to write him character references.  Applicant asserts that his first sergeant failed to be objective.  Applicant states that his defense counsel reassured him that his punishment would be a suspended reduction in rank due to the credit card offense, but did not even factor in the charge of failure to go because the facts showed that it was without merit.

The 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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Additionally, the applicant argues that the punishment given him under Article 15 was too harsh given his retirement and that his retirement also precluded the Article 15 from being used as a rehabilitative tool.  However, we note that the applicant signed his application for voluntary retirement on 21 Sep 03, after he had already received the Article 15.  Thus it appears that it was the applicant’s own decision to leave service when he did.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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 not considered with this application.

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The following members of the Board considered Docket Number BC-2004-00487 in Executive Session on 10 June 2004, under the provisions of AFI 36-2603:

The entire Board voted to deny applicant’s stated requests.  However, Mr. XXXX voted to reinstate the applicant’s grade at retirement, but did not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Nov 03, w/aches.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 12 Apr 04.
    Exhibit D.  Memorandum, AFPC/DPPRRP, dated 19 Apr 04.
    Exhibit E.  Letter, SAF/MRBR, dated 30 Apr 04.
    Exhibit F.  Letter, Applicant, dated 27 May 04.

                                   
                                   Panel Chair

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                  FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXX, XXXXXXX

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  The Board found that applicant had not provided sufficient evidence of error or injustice and recommended that his stated requests be denied.  However, a member of the Board adopted a minority view that the applicant be provided a measure of relief by restoring his grade upon his retirement.  The majority of the Board disagreed.  I agree with the finding and conclusion of the majority that such relief is not warranted.  Accordingly, I accept their recommendation that the additional relief be denied.

	Please advise the applicant accordingly.

							
							Director
							Air Force Review Boards Agency