RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02063
		INDEX CODES:  100.06, 107.00,
		              126.03, 128.00,
					  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  14 Apr 06

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APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 imposed on 2 Jul 01 be declared void and expunged from his records.

His reenlistment eligibility (RE) code of 4H be changed to 1J.

His grade of senior airman be changed to staff sergeant, with reimbursement of one month’s differential in staff sergeant and senior airman pay.

He be awarded the Air Force Achievement Medal (Second Oak Leaf Cluster (2OLC)) for his Honor Guard Service from Apr 98 to Feb 01.

He be reimbursed his education costs due to the cancellation of his Scholarship for Outstanding Airman to the Reserve Officer Training Corps (SOAR).

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APPLICANT CONTENDS THAT:

His first sergeant issued conflicting orders regarding his making contact with his wife, withheld his wife’s statement, indicating he did not assault her and that she lied, and information that would have facilitated a request for court-martial proceedings, compromised the Area Defense Counsel (ADC), and harassed and hindered his pursuit of justice prior to and after his date of separation (DOS).

The legal counsel on the Article 15 is incorrect.

The punishment was excessive.

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 19 Feb 97 for a period of four years in the grade of airman basic.

On 18 Jun 01, the applicant was notified of his commander's intent to impose nonjudicial punishment upon him for failure to obey a lawful order to have no contact with his spouse between 26 May 01 and 27 May 01, in violation of the UCMJ, Article 92.

On 28 Jun 01, after consulting with counsel, applicant waived his right to a trial by court-martial, requested to make an oral presentation, and submitted a written presentation.

On 2 Jul 01, he was found guilty by his commander who imposed the following punishment:  a reduction from the grade of senior airman to airman first class, which was suspended until 1 Jan 02, after which it was remitted, and a reprimand.  He indicated on 2 Jul 01 that he would appeal; however, on 6 Jul 01, he withdrew his decision to appeal.

Applicant was honorably released from active duty on 19 Aug 01 under the provisions of AFI 36-3208 (To Attend School) in the grade of senior airman.  He was credited with four years and six months of active service.

Information extracted from the Personnel Data System (PDS) indicates the applicant is currently serving on active duty in the grade of second lieutenant, having been appointed to that grade on 9 Jan 05.  His Total Active Federal Military Service Date (TAFMSD) is 7 Aug 00.

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AIR FORCE EVALUATION:

AFOATS/JA recommended denial of the applicant’s request to be reimbursed his education costs due to the cancellation of his SOAR.  They noted that in Dec 00, the applicant was nominated by his commander and selected under the small unit category for a SOAR scholarship.  However, prior to the AFROTC giving him authorization to separate to participate in the program, his commander notified the AFROTC of disciplinary actions pending against the applicant and requested his selection be voided.  He subsequently received an Article 15.  According to AFOATS/JA, the applicant has not submitted sufficient evidence to substantiate his request.  In his own statement he indicated he willfully violated the no contact order.  Therefore, the commander had every right to issue an Article 15, which subsequently cancelled his SOAR nomination.

A complete copy of the AFOATS/JA evaluation is at Exhibit C.

AFPC/DPPPR recommended denial of the applicant’s request for award of the AFAM (2OLC).  In their view, he did not provide sufficient documentation to substantiate his request.

A complete copy of the AFPC/DPPPR evaluation is at Exhibit D.

AFLSA/JAJM recommended denial indicating that a set aside of an Article 15 should only be granted when the evidence demonstrates an error or a clear injustice.  In their view, the offense was well supported by the evidence and the punishment imposed was justified and reasonable.  The basis of the applicant’s request for relief is insufficient to warrant setting aside the Article 15 or the associated relief he seeks.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a detailed response and additional documentary evidence, to include a videotape, which are attached at Exhibit G.

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPPPWB noted the applicant was tentatively selected for promotion to staff sergeant during cycle 00E5.  However, the fact that he received an Article 15 with a suspended reduction to airman first class rendered him ineligible for promotion consideration.  Should the Board remove the Article 15, they could direct restoration of his rank to staff sergeant with a date of rank (DOR) of 1 Jul 01.

A complete copy of the AFPC/DPPPWB evaluation is at Exhibit H.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 25 Mar 05 for review and response.  As of this date, no response has been received by this office (Exhibit I).

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ADDITIONAL AIR FORCE EVALUATION:

HQ AFROTC/RRUE indicated that their records showed the applicant was selected in Dec 00 to participate in the SOAR program by his major command (MAJCOM).  He was to receive a Type 2 scholarship allowing him to attend schools and universities not costing over $15,000.00 per year in tuition and fees associated with the school attended.  He also would have been entitled to a textbook allowance at the time of $450.00 and a stipend of $200.00 a month.  At the time of his application, the applicant submitted documentation, to include the academic plan, supporting his eligibility to participate in the program.  They no longer have any documentation concerning the applicant to assist them in determining what school he planned to attend or the number of courses needed to complete the degree he would have pursued at the time.  This data would be needed in verifying what his entitlements might have been.  Schools charge tuition and fees either by the term or the number of courses taken during the term.  Without this data, they could not ascertain when the applicant would have graduated, what courses he needed to complete the degree, or whether the school charged by the term or number of courses taken.

A complete copy of the HQ AFROTC/RRUE evaluation is at Exhibit J.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

By letter, dated 5 Jul 05, the applicant provided documentation regarding verification of his possible entitlements due to the loss of his AFROTC Scholarship, which is attached at Exhibit L.

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ADDITIONAL AIR FORCE EVALUATION:

AFOATS/JA indicated that according to the Base Educators Guide, dated 1 Mar 00, to be eligible for SOAR, the member is first nominated and then meets a board to determine eligibility.  AFROTC then notifies members if they were selected or non-selected.  According to AFOATS, the applicant never met the board; therefore, he was not due any SOAR monies.  Had he contracted and received SOAR monies, he would owe the Air Force four years of military time as compensation.  The tuition the applicant paid for 2001 amounts to $1453.42, along with $255.00 in book allowance and $1,000.00 for a stipend for a total of $2708.42.  The tuition he paid in 2002 amounts to $3,942.84, along with $255.00 in book allowance and $1,000.00 for a stipend for a total of $5,045.80.  The tuition paid in 2003 amounts to $2,365.38, along with $255.00 in book allowance and $1,000.00 for a stipend for a total of $3,620.38.  The tuition paid in 2004 amounts to $4,545.85, along with $255.00 in book allowance and $1,000.00 for a stipend for a total of $5800.85. These amounts combined total would be $14,467.03; however, that price goes with an Air Force commitment of four years.

In AFOATS/JA’s view, the applicant has not submitted sufficient evidence to substantiate his request that he be reimbursed the education costs due to the cancellation of his SOAR entitlements.  In his own statement, he stated that he willfully violated the no contact order.  Therefore, the commander had every right to issue an Article 15, which subsequently cancelled his SOAR nomination.

A complete copy of the AFOATS/JA evaluation is at Exhibit M.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response indicating, in part, that he has submitted sufficient evidence to validate his eligibility for SOAR monies, his Article 15 punishment should be set aside, and that he is serving a minimum four-year Air Force commitment.

Applicant’s complete response, with attachments, is at Exhibit O.

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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 injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation presented in support of his requests the nonjudicial punishment under Article 15 imposed on 2 Jul 01 be voided and expunged from his records; his grade of senior airman be changed to staff sergeant, with reimbursement of one month’s differential in staff sergeant and senior airman pay; he be awarded the AFAM (2OLC); and, that his RE code of 4H be changed to 1J sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs).  No evidence has been presented which shows to our satisfaction the information used as a basis for the nonjudicial punishment was erroneous or there was an abuse of discretionary authority, and that he was improperly denied promotion to staff sergeant and award of the AFAM (2OLC).  Concerning his request that his RE code be changed, we believe this is now a moot issue since he is now serving on active duty.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we adopt the OPRs’ rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing he has suffered either an error or an injustice regarding the aforementioned requests.  

4.  Notwithstanding the above, we are inclined to afford the applicant favorable relief regarding his request that he be reimbursed his education costs due to the cancellation of his SOAR.  In this respect, the available evidence indicates he was nominated by his commander and selected for the SOAR scholarship.  However, prior to his separation to participate in the program, his commander requested that his selection be voided based on pending disciplinary actions which ultimately resulted in his nonjudicial punishment under Article 15.  As indicated above, we find no evidence that shows to our satisfaction the imposition of the Article 15 was improper or an abuse of discretion.  Nevertheless, we note the applicant was subsequently released from active duty to attend school, which he has since completed at his own expense, and is now serving on active duty as a commissioned officer.  In view of the applicant’s prior selection by his commander to participate in the SOAR, his successful completion of school, his current service on active duty, and to remove the possibility of an injustice, we believe the applicant should be reimbursed his education costs.  Accordingly, we recommend his 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 competent authority approved his participation in the Scholarship for Outstanding Airman to the Reserve Officer Training Corps (SOAR), and that he be reimbursed his educational expenses not to exceed $14,467.03.

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The following members of the Board considered AFBCMR Docket Number BC-2004-02063 in Executive Session on 8 Jun 05 and 1 Dec 05, 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 24 Jun 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFOATS/JA, dated 9 Jul 04.
     Exhibit D.  Letter, AFPC/DPPPR, dated 10 Aug 04.
     Exhibit E.  Letter, AFLSA/JAJM, dated 18 Aug 04.
     Exhibit F.  Letter, SAF/MRBR, dated 27 Aug 04.
     Exhibit G.  Letter, applicant, dated 10 Sep 04, w/atchs.
     Exhibit H.  Letter, AFPC/DPPPWB, dated 10 Mar 05.
     Exhibit I.  Letter, SAF/MRBR, dated 25 Mar 05.
     Exhibit J.  Letter, HQ AFROTC/RRUE, dated 23 Jun 05.
     Exhibit K.  Letter, AFBCMR, dated 27 Jun 05.
     Exhibit L.  Letter, applicant, dated 5 Jul 05, w/atchs.
     Exhibit M.  Letter, AFOATS/JA, dated 6 Sep 05.
     Exhibit N.  Letter, AFBCMR, dated 21 Sep 05.
     Exhibit O.  Letter, applicant, dated 30 Sep 05, w/atchs.

AFBCMR BC-2004-02063

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 competent authority approved his participation in the Scholarship for Outstanding Airman to the Reserve Officer Training Corps (SOAR), and that he be reimbursed his educational expenses not to exceed $14,467.03.