RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBERS:  BC-2004-02022
INDEX CODE:  126.04
	XXXXXXXXXXXXXXXXXXXXXXX		COUNSEL:  XXXXX

	XXXXXXXXXXXXX					HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  28 Dec 05

_________________________________________________________________

APPLICANT REQUESTS THAT: 

His Article 15, Uniformed Code of Military Justice (UCMJ), imposed on 3 February 2000 be set aside and his Enlisted Performance Report (EPR) for the period 4 August 2002 through 30 November 2003 be removed from his records.  Any regulatory bar preventing his reenlistment be removed and he be reinstated in the Air Force Reserve, preferably at Westover Air Reserve Base, MA, or; to his previous position at Peterson, AFB, CO.  He be credited for all lost time and pay since being denied his reenlistment from June 2003 to the present.  

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was improperly recalled to active duty and subjected to military justice action, resulting in an improper Article 15, EPR, and selection record; a “bad year” for his Reserve status; and, his unit’s refusal to reenlist him.  

In support of his application, the applicant provides a statement from his counsel; and copies of his court-martial charge and specification sheet; commander’s memo to withdraw the charges; six-month extension; excerpt of AFI 36-2612; Article 15; documentation regarding his Article 15 and subsequent appeal; referral EPR; and documentation concerning his involuntary extension.  The applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 7 August 1985, the applicant enlisted in the Air Force Reserve at the age of 22 in the grade of airman (E-2) for a period of six years.  He was progressively promoted to the rank of master sergeant (E-7) effective and with a date of rank of 1 January 2001.  He received four EPRs for the period 7 August 1985 through 30 November 2003 with ratings of 3, 5, 2, and 1.

On 13 May 2003, the applicant’s enlistment was involuntarily extended for six months “for the purpose of administrative action.”  On 4 August 2003, the applicant was charged with five specifications of stealing Air Force property in violation of Article 121, United Code of Military Justice (UCMJ).  On 17 November 2003, the court-martial authority withdrew the charge and specifications.

On 18 November 2003, the applicant’s commander offered the applicant nonjudicial punishment under Article 15, UCMJ, for larceny of certain military property between 1 August 1998 and 11 July 2002, specifically, uniforms, a portable back-up power supply system, and a magazine for a Beretta 9mm handgun.  The applicant waived his right to a trial by court-martial and accepted nonjudicial punishment proceedings.  The applicant consulted with counsel, made a personal appearance before the commander, and submitted a written presentation of matters in defense, mitigation, and extenuation.  After considering all of the evidence, the commander found that the applicant committed the offenses relating to the uniform clothing and the power-source system but did not commit the offense relating to the 9mm magazine.  The commander imposed punishment of a reduction to the grade of technical sergeant (E-6).  The applicant appealed the nonjudicial punishment, and the appeal was denied on 24 November 2003.  

On 26 November 2003, the applicant was not recommended for reenlistment citing his Article 15 as the reason.  The applicant’s enlistment extension was terminated effective 15 December 2003.  On 9 February 2004, the Deputy Director of Military Justice for the Air Force Reserve Command (AFRC/JAJ) determined the extension of the applicant’s enlistment was not legal.  AFRC/JAJ’s rationale was that although the provisions of AFI 36-2612 authorize an involuntary extension of enlistment for a court-martial that is begun while the member is subject to the UCMJ, in this case, no significant step towards a court-martial was taken during the original enlistment period.  On 26 May 2004, AFRC Military Personnel Division instructed the applicant’s unit to remove from the applicant’s records all paperwork generated after the original expiration date of the applicant’s enlistment (15 June 2003).  

The applicant was released from the Air Force Reserve effective 15 December 2003 for expiration of term of service.  As of 6 August 2003, he was credited with 17 years of satisfactory Federal military service.  

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the applicant’s Article 15 be set aside and that all references to it be removed from the applicant’s personnel records.  JAJM states that since the set aside will result in reinstatement of rank and other personnel actions, including the opportunity of reenlistment, they defer to the personnel community to make recommendations regarding those actions.  The AFLSA/JAJM evaluation is at Exhibit C.

AFRC/DPM recommends the applicant’s record be corrected to reflect a total award of 86 Inactive Duty Training (IDT) points, 12 active duty points and pay in the grade of master sergeant (E-7) thus giving him the pay and points needed for additional good years towards retirement.  DPM states they are not the appropriate office to address the applicant’s request for reinstatement to his former unit.  The DPM evaluations are at Exhibits D, E, and F

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant requests he be reinstated in the Air Force Reserve, preferably to Westover Air Reserve Base, Massachusetts.  In addition, he requests credit for all lost time and pay since being denied reenlistment from June 2003 to present.  The applicant’s rebuttal, with attachments, is at Exhibit J and his counsel’s statement is at Exhibit K.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice in regard to the applicant’s requests to be reinstated in the Air Force Reserve, receive pay and participation points since his separation, his Article 15 imposed on 3 February 2000 and his EPR for the period 4 August 2002 through 30 November 2003 be expunged.  We note the advisory opinion by JAJM that the applicant’s commander had no authority to retain the applicant on active duty once the court-martial convening authority withdrew the charge and specification against the applicant.  Therefore, the commander had no military jurisdiction over the applicant at the time of imposing nonjudicial punishment.  Accordingly, we concur with JAJM’s recommendation to set aside the Article 15 and all references to it be removed from the applicant’s personnel records.  Because of the Article 15 set aside, we agree the applicant’s EPR for the period 4 August 2002 through 30 November 2003 should be removed from his records; his reenlistment eligibility code should be changed to 5A (eligible to reenlist) and his records be corrected to show he reenlisted in the Air Force Reserve effective 16 June 2003 for a period of six years; he be reinstated to the rank of master sergeant with a date of rank of 1 January 2001; and his records be corrected to reflect sufficient participation points for retention/retirement (R/R) years 7 August 2002 - 6 August 2003 and 7 August 2003 – 6 August 2004 to be credited with satisfactory years of Federal service.  We feel the applicant should receive sufficient participation points for a good retirement year for the period 7 August 2004 to 27 April 2005 since reinstatement into an active Reserve position may not occur before expiration of his current R/R year.  In view of the foregoing, it is our opinion that the applicant’s records should be corrected as indicated below.

4.  In regard to the applicant’s request to be reinstated to his former unit and position, based on the period of time that has lapsed since his separation and the problems he incurred while assigned to his former unit, it would not be in the best interest of the applicant or the Air Force Reserve to place him back in this environment.  Therefore, we believe that the Air Force Reserve is in the best position to determine an appropriate assignment.  

5.  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.

_______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

a.  The nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice, imposed on 18 November 2003, be and hereby is, declared void and expunged from his records, and all rights, privileges and property of which he may have been deprived be restored.  

b.  The Air Force Form 910, Enlisted Performance Report (AB thru TSGT), rendered for the period 4 August 2002 through 30 November 2003 be declared void and expunged from his records.

c.  On 16 December 2003, he reenlisted in the Air Force Reserve for a period of six years and assigned to such a position for which he is qualified on the earliest practical date. 

d.  During the retention/retirement year 7 August 2002 to 6 August 2003, he was awarded an additional 12 paid active duty points and 22 paid inactive duty points.

e.  During the retention/retirement year 7 August 2003 to 6 August 2004, he was awarded 40 paid inactive duty points.  

f.  During the period 7 August 2004 to 27 April 2005, he was awarded 14 paid active duty points and 24 paid inactive duty points.  

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 27 April 2005 under the provisions of AFI 36-2603:

By a majority vote, the Board voted to correct the record as recommended.  Ms. XXXXX voted to grant all requests except for back pay, which she voted to deny; however, she chose not to submit a minority report.  The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2004-02022:

	Exhibit A.  DD Form 149, dated 21 Jun 04, w/ atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 10 Sep 04. 
	Exhibit D.  Letter, AFRC/DPM, dated 14 Feb 05. 
	Exhibit E.  Letter, AFRC/DPM, dated 21 Oct 04. 
	Exhibit F.  Letter, AFRC/DPM, dated 26 May 04. 
	Exhibit G.  Letter, SAF/MRBR, dated 25 Feb 05.
	Exhibit H.  Letter, AFBCMR, dated 17 Nov 04.
	Exhibit I.  Letter, SAF/MRBR, dated 29 Oct 04.
	Exhibit J.  Applicant’s Letter, dated 10 Nov 04, w/atchs. 
	Exhibit K.  Counsel’s Rebuttal, dated 19 Nov 04, w/atchs. 

AFBCMR BC-2004-02022

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 XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that 

a.  The nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice, imposed on 18 November 2003, be and hereby is, declared void and expunged from his records, and all rights, privileges and property of which he may have been deprived be restored.  

b.  The Enlisted Performance Report for the period 4 August 2002 through 30 November 2003 be and hereby is, declared void and expunged from his records.

c.  On 16 December 2003, he reenlisted in the Air Force Reserve for a period of six years and assigned to such a position for which he is qualified on the earliest practical date. 

d.  During the retention/retirement year 7 August 2002 to 6 August 2003, he was awarded an additional 12 paid active duty points and 22 paid inactive duty points.

e.  During the retention/retirement year 7 August 2003 to 6 August 2004, he was awarded 40 paid inactive duty points.  

f.  During the period 7 August 2004 to 27 April 2005 he was awarded 14 paid active duty points and 24 paid inactive duty points.