RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01717
		INDEX CODE:  111.02, 126.02,
                                              131.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His nonjudicial punishments under Article 15 of the Uniform Code of Military Justice (UCMJ), imposed on 3 Dec 02 and 17 Jun 03, be declared void and removed from his records.

2.  His Enlisted Performance Reports (EPRs) closing 19 Dec 02 and 16 Jun 03, be declared void and removed from his records.

3.  He be reinstated to the grade of staff sergeant with his original date of rank and back pay and allowances.

4.  He be supplementally considered for promotion to the grade of technical sergeant beginning with cycle 03E6.
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APPLICANT CONTENDS THAT:

He received his first Article 15 punishment and was reduced from staff sergeant to senior airman for allegedly allowing two airmen to sleep on shift.  It was later revealed during his discharge board hearing that the Airmen had not been sleeping and one of the two stated that he might have dozed off.  This Airman was under investigation for underage drinking and had agreed with the superintendent to say whatever he wanted him to.  His punishment was excessively harsh considering the alleged crime and the fact that neither of the Airmen received any punishment whatsoever.  His second Article 15, which resulted in loss of another stripe was for allegedly abandoning his post and allowing an Airman to abandon her post.  It was discovered during the discharge board that he had the right to allow the Airman to leave her post as long as she was not gone for 30 minutes.  On all four occasions he allowed the junior controller to leave, she had returned within 15 minutes.  He left the Command Post for a duty related task to assist the OSI.  Due to his error, he returned 45 minutes later.  He was prepared to receive punishment for his error but his punishment was extreme, as agreed by the discharge review board members, especially since he was conducting primary related duties.  During his discharge review board proceedings, several of his former supervisors testified on his behalf and stated that the punishments he received were extreme.  The findings of the board were all in his favor with exception to the technical violation for abandoning his post.  He asked his commander to redress his Article 15 punishments, but his request was denied.  

In support of his request applicant provided, a personal statement; and documentation associated with his Article 15 punishments, his referral EPRs and appeals, and his discharge review board process.  His 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 14 Jun 93.  He was progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 14 Jun 96.  

On 22 Nov 02, while serving as a Command Center Controller, the applicant was notified by his commander of her intent to recommend nonjudicial punishment under Article 15 of the UCMJ for dereliction in the performance of his duties by failing to effectively employ personnel under his control by allowing two airmen to be absent from their station and one of them to fall asleep on duty.  He was advised of his rights in this matter and acknowledged receipt of the notification on 2 Dec 02.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written and oral presentation to his commander.  On 3 Dec 02, after consideration of all the facts, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  He was reduced to the grade of senior airman with a date of rank of 3 Dec 02.  The applicant appealed his punishment to 30 MSG/CC.  His appeal was denied.  

On 4 Jun 03, the applicant was notified by his commander of his intent to recommend nonjudicial punishment under Article 15 of the UCMJ for dereliction in the performance of his duties in that he willfully failed to maintain a minimum of two authorized controllers on duty.  He was advised of his rights in this matter and acknowledged receipt of the notification on 13 Jun 03.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written and oral presentation to his commander.  On 17 Jun 03, after consideration of all the facts, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  He was reduced to the grade of airman first class with a date of rank of 17 Jun 03.  The applicant appealed his punishment to 30 MSG/CC.  His appeal was denied.  

The applicant's HYT date has been established as 21 Jun 05.  

The applicant's commander initiated a recommendation that he be administratively discharged from the Air Force.  A discharge board hearing was held on 11 Sep 04.  The board found in a split decision that he did not have an unprofessional relationship with a subordinate, that he was derelict in the performance of his duty by not remaining at his post, and that he was not otherwise derelict in the performance of his duties.  The board recommended retention in the Air Force.  

The applicant's recent EPR profile is as follows:

	PERIOD ENDING	PROMOTION RECOMMENDATION

	16 Jun 04			2
	16 Jun 03				2*
	19 Dec 02				2*
	20 Nov 01				5
	20 Nov 00				5
	
* - Contested EPRs

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states this case presented conflicting evidence to the commander and the appellate authority at the time of the Article 15 punishment.  The commander's determinations were not manifested unreasonably or clearly unfair, and set aside is not in the best interests of the Air Force.  Although he asserts there was largely no basis for the punishments, each of the allegations was supported in fact and law.  In the case of the first Article 15, he allowed two on-duty controllers under his supervision to leave the command center console to watch a movie, leaving him alone at the console.  This is in violation of AFSCI 10-210, Operations Centers (Command Post) Policies and Procedures, which provides that "[Console Operations] consists of two certified controllers manning the OC console 24-hours a day."  His noncompliance of this rule is tempered by evidence of a persistent practice in the command center to allow controllers during sometime to watch television or movies in the Battlestaff area. Nevertheless, this extenuating or mitigating circumstance does not render the commander's decision unreasonable.  As to the second Article 15 he left only one controller to man the console, one of the two bases for the punishment, presumably contravenes the two-controller rule.  He admitted to the other basis for the punishment.  Even though his absence was for official business, such mitigation was for the commander to weigh in exercising her discretion in imposing nonjudicial punishment.  

The reductions to the next lower grades were well within the maximum permissible punishment and was appropriate considering both that he was in a leadership position and the nature of the offenses was dereliction of duty as duty as a supervisor.  He provided no evidence of a clear-cut error or injustice.  The JAJM evaluation is at Exhibit C.

AFPC/DPPPE recommends denial.  DPPPE states although the applicant contends his punishment was disproportionately harsh for the offenses, the fact remains he received Article 15s for his actions.  If the Board finds the Article 15s inappropriate and sets them aside, the EPRs should be voided.  

DPPPE did find administrative errors on both reports that should be corrected.  Both EPRs and the referral memorandum contain prohibited comments that should be administratively corrected.  In addition the 19 Dec 02 EPR contains new information that should have been re-referred to the applicant.  DPPPE recommends the reports be administratively corrected if the Board does not determine voidance is appropriate.

DPPPWB states if the Board should set aside both Article 15s and remove the referral reports, he would be eligible for supplemental promotion consideration beginning with cycle 03E6.  The DPPPE/DPPPWB evaluations are at Exhibit D.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 15 Oct 04 for review and comment within 30 days.  As of this date, this office has received no response.

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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 that would warrant set aside of his Article 15 actions or removal of the contested reports.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, we do not believe the applicant has suffered an injustice.  We are not persuaded by the evidence presented that the nonjudicial punishments, imposed on 3 Dec 02 and 17 Jun 03, were improper.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence indicates that, during the processing of his Article 15 actions, the applicant was offered every right to which he was entitled.  He was represented by counsel, waived his right to demand trial by court-martial, and submitted matters for review by the imposing commander and appellate authority.  After considering the matters raised by the applicant, the commander determined that the applicant had committed "one or more of the offenses alleged" and imposed punishments on the applicant.  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 the Article 15 punishments, or that the punishments exceeded the maximum authorized by the UCMJ.  

With respect to his EPRs closing on 19 Dec 02 and 16 Jun 03, with exception to the administrative errors noted by the Air Force, we are not persuaded that the contested reports are erroneous or that they are an inaccurate depiction of his performance and demonstrated potential for the period in question.  In the rating process, evaluators are required to assess a ratee's performance, honestly and to the best of their ability.  In judging the merits of this case, we took careful note of the applicant's contentions; however, we are not persuaded by the evidence presented that the ratings were based on inappropriate considerations or that the raters abused their discretionary authority.  Therefore, in the absence of such evidence, we find no basis upon which to favorably consider the applicant's request that the reports be removed from his records.  The errors noted by the Evaluations Appeals Branch are administrative in nature and we have been advised that they will be corrected accordingly.

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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 AFBCMR Docket Number BC-2004-01717 in Executive Session on 9 Dec 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Apr 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 6 Aug 04.
    Exhibit D.  Letter, AFPC/DPPPE, dated 7 Oct 04.
    Exhibit E.  Letter, SAF/MRBR, dated 15 Oct 04.