RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00927
		INDEX CODE:  

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Article 15 be set aside and his original date of rank (DOR) to staff sergeant (SSgt) be reinstated.

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APPLICANT CONTENDS THAT:

He is innocent of the charges of conspiracy and the evidence (documentation of weigh-ins) proves his innocence.

In support of the appeal, applicant submits a personal statement, a copy of the Article 15 package, 

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 5 June 1996 in the grade of airman first class for a period of four years.  He served three years, one month and four days of total active duty.  On 9 July 1999, he reenlisted for a period of six years.  Prior to the events under review, he was progressively promoted to the grade of staff sergeant, effective and with a date of rank of 1 April 2001.

On 5 May 2003, the applicant’s commander notified him that he was considering whether he should be punished under Article 15, UCMJ, for a violation of Articles 81 and 107, UCMJ, Conspiracy and False Official Statements.  Applicant was alleged to have conspired to have the weight loss monitor falsify his December 2002 weigh-in, indicating that in just over one month, he had lost over twenty pounds of weight, and then lying about the conspiracy.  After consulting with military defense counsel, he waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He requested a personal hearing and submitted a written presentation to the commander.  On 16 May 2003, the commander found that the applicant had committed the offenses alleged and imposed punishment consisting of a reduction in rank to senior airman, with a new date of rank of 16 May 2003, a forfeiture of $250 pay per month for two months, suspended through 15 November 2003, fifteen days of extra duty, and a reprimand.  On 15 August 2003, the same commander mitigated the reduction in grade punishment to a punishment of a forfeiture of $200 pay per month for two months.  As a result, his date of rank as a staff sergeant is 15 August 2003.

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AIR FORCE EVALUATION:

AFLSA/JAJM states that on 11 April 2003, the applicant’s first sergeant received an e-mail from a squadron member stating that someone should review the squadron’s weight management program entries over the past year.  Based on the first sergeant’s review, two records appeared questionable.  One of the records was the applicant’s.  According to his file, on 31 October 2002, the applicant weighed 224 pounds.  At a 3 December 2002 mandatory weigh-in, an acquaintance of the applicant recorded the applicant’s weight as 198 pounds.  If the second weigh-in was valid, the applicant lost 26 pounds in 32 days.  The applicant was interviewed under rights advisement.  The applicant acknowledged his rights, declined counsel, and agreed to answer questions.  During questioning, the applicant denied any breech of integrity.  He also made a written statement indicating the weight was correctly recorded.  

The applicant’s acquaintance also weighed another military member on 3 December 2002.  According to that member’s record, she lost 22 pounds between 16 October 2002 and 3 December 2002.  On that same date, this service member was weighed at a medical appointment.  The results of that weigh-in indicated she weighed 26 pounds more than she had weighed that morning.

On 21 May 2003, applicant appealed the nonjudicial punishment.  At the time of the appeal, contradictory statements from the applicant’s coworkers were submitted.  Some coworkers said they did not notice weight loss.  Others stated they did notice drastic weight loss.

The senior commander considered all the evidence and determined that the punishment was appropriate and denied the appeal.

On 24 June 2003, the applicant requested that the Article 15 be set aside pursuant to Air Force Instruction 51-202.  At the time, he presented evidence that he weighed 231 pounds on 13 May 2003 and 205 pounds on 10 June 2003, a loss of 26 pounds.  The evidence consisted of documented weekly weigh-ins.

When a commander decides that a member who has been punished, or is being punished, has suffered a “clear justice,” the commander can cancel the punishment in whole or in part and restore the member’s rights, privileges, or property accordingly.  Clear injustice generally refers to cases in which information later comes to the commander’s attention that casts substantial doubt on the member’s guilt or establishes persuasive extenuation for the commission of the offense.  Set aside action is not normally considered a rehabilitation tool.  The setting aside of a punishment should not be a routine action for a member who merely avoids future misconduct.  The commander exercises this discretionary authority only in the unusual case where the guilt of the member is subsequently placed clearly in question, or in those rare cases where circumstances establish that the best interests of the Air Force would be served by clearing the member’s record.  Set aside action must be taken within a reasonable time (normally four months) after imposition of the nonjudicial punishment.  The commander determined that there was no clear injustice and no unusual circumstances warranting approval of the set aside requests.

However, on 15 August 2003, the applicant’s commander mitigated the reduction in grade to a forfeiture of $200 per month for two months.  The supplementary action restored noncommissioned officer status and the accompanying pay to the applicant.

The following is a review of the information made available to the board indicating the following weight fluctuations if all documented weights are true:

           23 October 2002         230 pounds
           31 October 2002         224 pounds
            3 December 2002        198 pounds
           11 April 2003           233 pounds
           13 May 2003             231 pounds
           20 May 2003             224 pounds
           27 May 2003             216 pounds
           10 June 2003            205 pounds

JAJM opined there is no clear injustice or unusual circumstance warranting overturning the commander’s decision that the 3 December 2002 recorded weight was inaccurate.  The commander’s belief that such a drastic weight loss by the applicant would be noticed by anyone working with the applicant on a regular basis is reasonable under the circumstances.

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 only be granted when the evidence demonstrates an error or an injustice.  JAJM believes 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.  Therefore, they recommend no relief be granted.

A complete copy of the evaluation is attached at Exhibit C.

AFPC/DPPPWB states they defer to the recommendation of AFLSA/JAJM. However, if the Board decides to set aside the Article 15 as requested, his original DOR for SSgt was 1 April 2001.  Based on this DOR, he would be eligible for supplemental promotion consideration to technical sergeant (TSgt) beginning with cycle 03E6, once tested.

A complete copy of their evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 July 2004, 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 probable error or injustice warranting removal of the Article 15 from his records.  After reviewing the evidence of record, the Board finds no evidence of error related to the nonjudicial punishment proceedings.  It appears that applicant’s commander properly reviewed the circumstances surrounding applicant’s alleged offenses and found that he had committed the offenses and imposed punishment consisting of a reduction in rank, forfeiture of $250 pay per month for two months, fifteen days of extra duty and a reprimand.  Two months later, 15 August 2003, the commander mitigated the reduction in grade punishment to a forfeiture of $200 pay per month for two months.  Applicant’s date of rank to staff sergeant was established as 15 August 2003, the date the commander mitigated the punishment.  Based on the facts, we find no basis upon which to recommend favorable action on applicant’s request to set aside the contested Article 15.

4.	Notwithstanding the above determination, the majority of the Board notes that on 24 June 2003, applicant presented documented weigh-ins to his commander reflecting that he had lost 26 pounds in 28 days.  On 15 August 2003, the commander, after reviewing the evidence, mitigated the reduction in grade punishment to a punishment of a forfeiture of $200 pay per month for two months.  The majority of the Board believes that, in view of applicant’s drastic weight loss and since the commander restored him to the grade of staff sergeant, his date of rank should also be restored.  In view of the above findings, the majority of the Board believes that the benefit of any doubt should be resolved in favor of the applicant and recommend that applicant’s date of rank to the grade of staff sergeant be restored to 1 April 2001.

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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 his date of rank to staff sergeant is 1 April 2001. 

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The following members of the Board considered this application in Executive Session on 28 October 2004, under the provisions of AFI 36-2603:
By a majority vote, the Board recommended partially granting of the application pertaining to AFBCMR docket number BC-2004-00927.  Mr.XXXXXX voted to deny the records but does not desire to submit a Minority Report.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 14 Mar 04, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 10 Jun 04.
	Exhibit D.  Letter, AFPC/DPPPWB, dated 28 Jun 04.
	Exhibit E.  Letter, SAF/MRBR, dated 9 Jul 04.

AFBCMR BC-2004-00927

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 his date of rank to staff sergeant is 1 April 2001.