ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBERS:  BC-2004-01407
INDEX CODE:  126.04
	XXXXXXXXXXXXXXX				COUNSEL: 

								HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

His Article 15, Uniformed Code of Military Justice (UCMJ), action imposed on 18 December 2003, be expunged from his record; his rank of master sergeant (E-7) be reinstated as of the date of his reduction in grade; he be retired in the grade of master sergeant; and he receive all back pay and allowances owing as a result of his reduction in grade.  

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STATEMENT OF FACTS:

The applicant submitted a similar appeal, which was considered and denied by the Board on 15 September 2004.  The applicant contends the specification on his nonjudicial punishment action is contrary to law and legally insufficient because it fails in all material respects to specify the particular duty or duties, which it is alleged that he negligently failed to perform, and the particular manner in which he negligently failed to perform the unspecified duty or duties.  As such, the specification may not form the basis for the imposition of nonjudicial punishment and according to Air Force Instruction 51-202, it must be set aside.  For an accounting of the facts and circumstances surrounding the rationale for the earlier decision by the Board, see the Record of Proceedings at Exhibit G (with Exhibits A-F).

On 6 February 2006, the applicant submitted a request for reconsideration.  In support of his request, he submits a supplemental statement from his counsel; and copies of his Article 15, Commander Directed Report of Investigation, shop inventory, Mission Systems Flight Commander memorandum, Area Defense Counsel memorandum, Defense Paralegal memorandum, Mission Support Group Commander memorandum, Letter of Reprimand, and Secretary of the Air Force action on advancement to higher grade.  

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

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THE BOARD CONCLUDES THAT:

In earlier findings, the Board determined there was insufficient evidence to prove the applicant’s nonjudicial punishment, imposed on 18 December 2003, was improper.  After a careful reconsideration of his request and his most recent submission, we do not find it provides a basis to disturb the Board’s earlier determination.  While the applicant’s most recent submission included letters that were not provided in his original application to this Board, we note these letters were available for consideration by the imposing commander and reviewing authority when the applicant filed his appeal to the Article 15.  The evidence indicates that during the processing of this Article 15, the applicant was offered every right to which he was entitled.  He consulted with counsel, and submitted written and oral matters for review by the imposing commander and was given the opportunity to present his arguments.  The imposing commander determined that the applicant did commit the offense and imposed punishment.  The applicant appealed the punishment and after considering the matters raised by the applicant in his appeal, the appeal authority denied the request.  There is nothing in the evidence provided, other than the applicant’s assertions, which would lead the Board to believe that the actions by the imposing commander were inappropriate or that he did not have access to all of the information necessary on which to base his decision.  The applicant has not provided any evidence showing that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of this Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, based on the facts of this case, we believe the applicant has not established that he has suffered an error or injustice.  Accordingly, the Board finds no basis upon which to favorably consider the applicant’s requests.  

The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 this application in Executive Session on 20 July 2006, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2004-01407-2:

    Exhibit G.  ROP, dtd 28 Oct 04, w/ Exhibits A through F.
    Exhibit H.  DD Form 149, dated 6 Feb 06, w/atchs.