RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2004-01666

			COUNSEL:  None

	XXXXXXX		HEARING DESIRED:  No
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APPLICANT REQUESTS THAT:

His Article 15, Uniform Code of Military Justice (UCMJ), be set aside, reinstatement of his grade of senior master sergeant and all back retirement pay or his grade restored to senior master sergeant (E-8) on his 30th anniversary.
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APPLICANT CONTENDS THAT:

On 11 February 1988, he received Article 15 for failure to obey an order or regulation.  The punishment was unjust in that there was no offense committed.  He went to the appointment that he was punished for missing and he is attaching statements from witnesses to that effect.  

He should have been retired in the pay grade of E-8 rather than E-7.  In addition, his pay grade should have been reinstated to E-8 when his active duty plus time on the retired list reached 30 years in accordance with (10 USC 8964). He has been punished for 16 years for an offense that never even occurred.  

In support of his application, he provides a personal statement, statements from witnesses, Art 15 statements, letters of appreciation, and an award nomination package.

Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 25 May 1966. He was progressively promoted to the grade of senior master sergeant on 1 September 1985. Applicant was retired with an honorable discharge in the grade of master sergeant.
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On 17 June 1987, the commander imposed nonjudicial punishment under Article 15, UCMJ, on the applicant, then an SMSgt for a violation of Article 111, UCMJ, Drunken or reckless operation of a vehicle, aircraft or vessel.  The punishment imposed on the applicant was a reduction to master sergeant, forfeiture of $866.00 per month for two months, and a reprimand.  This Article 15 called for the reduction in rank to be suspended until       12 December 1987, at which time, unless suspension is sooner vacated it will be remitted without further action.  

On 29 December 1987, the commander imposed nonjudicial punishment under Article 15, UCMJ, on the applicant again, then an SMSgt for a violation of Article 92, UCMJ, for Failure to obey an order or regulation.  Applicant was alleged to have wrongfully disobeyed an order to report for a urinalysis on 18 or 19 December 1987, as ordered to do.  After consulting with defense counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He did not request a personal appearance before Maj Gen __, the authority imposing the punishment.  He made a written presentation to the general. On   22 January 1988, the general found the applicant had committed the offense alleged and imposed punishment consisting of a reduction in rank to master sergeant and forfeiture of $500.00 pay per month for two months.  Applicant appealed the general’s decision to impose nonjudicial punishment.  After considering all the matters presented on appeal, on 22 March 1988, CINCPACAF/CC, denied the appeal.   

On 4 May 1988, a grade determination by the Secretary of the Air Force Personnel Council concluded that the applicant had satisfactorily served in the grade of master sergeant (E-7) with an effective date of rank of 11 February 1988 and he was permanently retired in that grade on 31 May 1988 after serving 22 years of total active military service.  

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the request and states given all the undisputed facts and circumstances, a reduction in rank for the applicant’s conduct seems harsh.  Nonetheless, the Article 15 should only be set aside if the applicant was not guilty of the offense. While a different fact finder may have come to a different conclusion, the commander’s findings are neither arbitrary nor capricious and should not be disturbed.  No evidence submitted by the applicant exonerates him, or mandates the relief requested. 

AFLSA/JAJM complete evaluation is attached at Exhibit C.

AFPC/DPPPWB recommended denial for reinstatement to the grade of SMSgt, stated that AFLSA/JAJM has reviewed this case and found no evidence of error or injustice, and recommended denial of applicant’s request to set aside the Article 15.  They concur with their recommendation.  Should the Board decide to set aside the Article 15 and reinstate applicant’s rank to SMSgt, his date of rank would be 1 September 1985.

AFPC/DPPPWB complete evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluations and stated that it is obvious by reading the memorandum that Military Associate Chief sees the injustice and illogic in the administration of this Article 15. The assistant chief also sees illogic in having everyone show up at 1015 hours on Saturday and the excessiveness of the punishment.  However, “she” (sic) just cannot bring herself to recommend setting aside the injustice.  

The reason he waited all this time to file his appeal is that he believed he would encounter someone who could not bring himself to recommend correcting this injustice.  Moreover, believe him, this has burned his soul every day for the last 16 years.  

Regardless of what the procedures called for, he did not have an opportunity to plead his case before the general.  He was called by the attorney representing him and was told to be at the general’s office on a certain date and time in dress uniform.  When he arrived there he was told that it was a mistake and to report to the squadron commander’s office for imposition of the Article 15 punishment.  His attorney was not at the general’s office nor was he at the squadron commander’s office to represent him.  Nor was any of his witnesses there to verify his story.  AlC __ had already rotated to the states and the airman working in the hospital who submitted a statement was not called.  Punishment was imposed by Col __ who was driving the effort to punish him.  Had he known the tester would only work 45 minutes that day, he would have been there earlier.  He believes he had all day to make the appointment. 

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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting setting aside the Article 15 should be set aside and retroactively reinstate his grade of senior master sergeant.  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 he 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 his discretionary authority when he imposed the nonjudicial punishment, and since we find no abuse of that authority, we find no reason to overturn the commander’s decision.  In view of the foregoing, we find no basis upon which to grant the applicant’s requests regarding this issue.

4.	Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of injustice.  The evidence of record indicates that, subsequent to his receipt of nonjudicial punishment under Article 15, a Secretarial determination was made reflecting the applicant had not served satisfactorily in the higher grade of senior master sergeant and would not be advanced under the provisions 10 USC 8964.  After reviewing the evidence of record and noting applicant’s overall record, we believe that some form of relief is justified.  In this respect, we note the Air Force Legal Services concedes a reduction in rank for the applicant's conduct seems harsh; the evidence available to us today does tend to show that the order was not specific or clear and that the applicant, and other squadron members, may not have had knowledge of the order.  We also note that the applicant’s overall record of performance of his duties was superior for over 20 years..  In view of these considerations, we believe that a permanent reduction in grade from senior master sergeant to master sergeant was excessively harsh and, therefore, unjust.  Accordingly, we believe proper and fitting relief in this case would be to restore the applicant to the grade of senior master sergeant when his active service plus his service on the retired list totals 30 years. Accordingly, we recommend the applicant’s records be corrected to the extent set forth below.

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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 4 May 1988 competent authority determined that the highest grade he satisfactory served on active duty was senior master sergeant and on 25 May 1996 he was advanced on the retired list to the grade of senior master sergeant.

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The following members of the Board considered Docket Number BC-2004-01666 in Executive Session on 24 February 2005, 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 14 Jun 04, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 27 Aug 04.
	Exhibit D.	Letter, AFPC/DPPPWB, dated 21 Sep 04.
	Exhibit E.	Letter, SAF/MRBR, dated 1 Oct 04.
	Exhibit F.	Applicant’s Response, 21 Oct 04. 

AFBCMR BC-2004-01666

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, XXXXXXX, be corrected to show that on 4 May 1988 competent authority determined that the highest grade he satisfactory served on active duty was senior master sergeant and on 25 May 1996 he was advanced on the retired list to the grade of senior master sergeant.