RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-04009
		INDEX CODE:  126.04, 131.05
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The Article 15 punishment imposed upon him on 9 May 07 be removed from his records and that his rank of senior airman be restored.

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APPLICANT CONTENDS THAT:

He received a medical profile on 29 Mar 07, which included a restriction on driving, however, he never received a lawful order that prohibited him from driving his motor vehicle.

The commander has the final decision regarding the profile and whether or not the member is actually being ordered to comply.  The provider’s issuance of a medical profile is merely a “recommendation” and not an order.  He should not have been punished for failing to obey an order issued by XXXXXXXXXXXXXXXXXX, because there was no order issued, only a recommendation to his commander, who did not indicate to him that he adopted the profile limitations.  Nor did his commander communicate that to him as a direct order.

Regarding the second specification of his failure to obey a lawful order by XXXXXXXXXXXXXXXXXX, to “fall in” formation during a mandatory run, it should be taken into consideration that he did not fail to obey his order, he did “fall in” as ordered, but due to a medical condition, he was unable to maintain formation due to pain and cramping on the entire left half of his body.

In support of his request, applicant provided a personal statement, an excerpt from AFI 48-123 Volume 2, Medical Examinations and Standards Volume 2 – Accession, Retention, and Administration and a reference to an Army Regulation regarding physical profiles.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Air Force on 12 Apr 01.  He was progressively promoted to the grade of senior airman with a date of rank (DOR) of 25 Sep 03.  

Applicant’s Enlisted Performance Report (EPR) profile follows: 

	         Period Ending		Promotion Evaluation

           11 Dec 02				3
	         16 Jun 03				4
           16 Jun 04				5
           16 Jun 05				4
           16 Jun 06				2

On 18 Sep 02, he received an Article 15 for leaving the scene of an accident.  Punishment consisted of a suspended reduction in grade to airman basic, forfeiture of $100.00 pay per month for two months, and restriction to the base for 45 days.

On 15 Nov 05, he received an Article 15 for failure to go to his appointed place of duty, being incapacitated from the use of alcohol, and failure to obey a lawful general regulation, by operating his POV while his driving privileges were revoked.  Punishment consisted of a suspended reduction in grade to airman first class, forfeiture of $820.00, 23 days of extra duty, and a reprimand.

On 28 Jul 06, his supervisor initiated an AF Form 418, Selective Reenlistment Program Consideration, and non-recommended him for continued service based on his numerous Letters of Counseling, reprimands, an Article 15, and the nonrecommendation for promotion in his most recent EPR.  His commander concurred with the non-recommendation and denied his reenlistment.  

On 9 Mar 07, XXXXXXXXXXXXXXXXXX updated the medical profile on the applicant prohibiting him from driving motor vehicles.  In addition to placing the restriction on the profile, XXXXXXXXXXXXXXXXXX personally told him that he was not allowed to operate any motor vehicle.  Two subsequent physical profile reports dated 19 and  29 Mar 07, respectively, prohibited him from driving motor vehicles.  Despite clear orders not to drive and being placed on a physical profile, he was seen driving on multiple occasions and was involved in a motor vehicle accident.

On 9 May 07, he received an Article 15 for disobeying valid military orders by wrongfully operating a motor vehicle and not falling into formation during the mandatory run when ordered to do so.  After consulting with military counsel, he waived his right to demand trial by court-martial and accepted nonjudicial punishment proceedings.  He presented matters in his defense in a written statement, but waived his right to a personal appearance before the commander.  The commander found him guilty of the offenses charged.  Punishment imposed was reduction in rank from senior airman (E-4) to airman (E-2) with a new DOR of 9 May 07, forfeiture of $729.00 pay per month for two months, and a reprimand.

On 11 Jul 07, he was released from active duty and transferred to the Air Force Reserve.  He served for a total of 6 years, 2 months, and 29 days.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request.  There is no evidence of a clear error or injustice that occurred in the Article 15 process, and the applicant does not set forth any evidence that an error or injustice occurred.

The applicant provided an AF Form 1042, Medical Recommendation for Flying or Special Operation Duty, dated 10 Jul 06, which DNIF’d him for 10 days.  He also provided a “Quarters Authorization” form dated 12 Jul 06, stating he was to return to duty on 15 Jul 06.  However, the applicant provides no approved convalescent leave paperwork that would authorize him to be absent from his place of duty from 10 Jul through 12 Jul or     19 Jul through 23 Jul 06.  AFI 36-3003, Military Leave Program, paragraph 4.2.4.1 requires a recommendation by a doctor to place a service member on convalescent leave to be approved by the service member’s squadron commander.  If a service member fails to secure the approval of his commander, he is required to report for duty or will be absent without leave.

He provided portions of AFI 48-123 and an Army Memorandum in support of his position that driving in violation of his physical profile was not a violation of a direct order.  The applicant’s reliance on an Army regulation is obviously misplaced and has no bearing in Air Force matters.  Furthermore, he was not only placed on a profile prohibiting him from driving, but was verbally ordered by two commissioned officers and two senior noncommissioned officers including his first sergeant not to operate a motor vehicle.  The applicant was told no fewer than four times that he was prohibited from driving, but he disobeyed this directive at his own peril and unfortunately at the peril of others around him when he was involved in a motor vehicle accident.

He provides no evidence to back his claim that he did not disobey his commander’s order to “fall in.”  In both his written presentation to the Article 15 proceedings and his matters submitted in appeal, he makes no reference to physical inability.  Even if he was physically unable to comply with the order, he does not have the luxury to disobey the order as he did.  

The commander relied upon sound evidence in determining that nonjudicial punishment was appropriate in finding that the applicant disobeyed two valid military orders.  The applicant was afforded his full rights under Article 15, UCMJ.  There is no evidence that the commander acted in an arbitrary or capricious manner and the Article 15 underwent two independent legal reviews and was found to be legally sufficient by both.

The complete JAJM evaluation, with attachments, is at Exhibit C.

HQ AFPC/DPSOE recommends denial.  The commander acted within his authority when he issued the Article 15 punishment.  DPSOA defers to the recommendation of AFLOA/JAJM regarding the applicant’s request to set aside the Article 15 action and restore his rank to senior airman.  

The complete DPSOE evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 Apr 08, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days.  To date, a response has not been received.

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 Docket Number    BC-2007-04009 in Executive Session on 29 May 08, under the provisions of AFI 36-2603:

	

The following documentary evidence pertaining to Docket Number BC-2007-04009 was considered:

    Exhibit A.  DD Form 149, dated 5 Nov 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 14 Feb 08, w/atchs.
    Exhibit D.  Letter, AFPC/DPSOE, dated 10 Mar 08.
    Exhibit E.  Letter, SAF/MRBR, dated 18 Apr 08.