RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-00949 INDEX CODE: 107.00, 111.01
XXXXXXX	COUNSEL: NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
The vacation of suspended reduction in grade under Article 15 of the UCMJ be removed and his rank of technical sergeant be restored to include all pay and allowances.

APPLICANT CONTENDS THAT:
He received a suspended reduction to staff sergeant from his previous commander after a fabricated assault on a noncommissioned officer (NCO). His suspended reduction to staff sergeant was later vacated by his commander after an error was made while he was temporarily assigned as the assistant fire chief. The commander, along with the first sergeant had full knowledge that he was not qualified nor trained in that position.

In support of his request, applicant provides a personal letter, a letter from the unit training manager; a copy of AF Form 623, Individual Training Record; copies of AF Form 910, Enlisted Performance Report (EPRs), a copy of AF Form 3070, Record of Nonjudicial Punishment Proceedings; a copy of the fire chief training report from the PACAF Fire Chief; a copy of AF Form 366, Record Of Proceedings Of Vacation Of Suspended Nonjudicial Punishment; AF IMT 102, Inspector General Personal and Fraud, Waste & Abuse Complaint Registration; AF IMT 77, Letter of Evaluation, emails, documents extracted from his medical records, and a copy of the Department of Defense Fire and Emergency Services Certification Program.

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

STATEMENT OF FACTS:

The applicant is serving in the Regular Air Force in the grade of staff sergeant, having assumed that grade effective and with a date of rank of 20 January 2006.

On 12 January 2006, applicant was notified by his commander of his intent to impose nonjudicial punishment under Article 15, UCMJ.    The  specific  reason  for  this  action  was  that  on
22 December 2005, he unlawfully struck an NCO by forcefully swatting a ceramic coffee mug filled with coffee off a desk, hitting the NCO and soiling his uniform with coffee. He acknowledged receipt of the notification on 18 January 2006. He was advised of his rights and after consulting counsel; he waived his right to demand trial by court martial, accepted Article 15 proceedings, and provided oral and written presentations to the commander. On 20 January 2006, the commander found that he did commit one or more of the offenses alleged and imposed punishment consisting of a reprimand, and suspended reduction to staff sergeant until 19 July 2006. Applicant elected not to appeal the Article 15 punishment.

On 18 April 2006, the commander vacated the suspension, finding that the applicant willfully failed to follow appropriate full structural emergency response procedures as he was directed to do by Air Force Instruction 32-2001, Fire Protection Operations and Fire Prevention Program. He was reduced to the grade of staff sergeant with a new date of rank of 20 January 2006.

On 25 July 2006, the applicant filed a complaint with the 36th Air Base Wing, Pacific Air Forces (PACAF) Inspector General (IG), alleging that his leadership had placed him in the position as Assistant Fire Chief without training. The IG substantiated the fact that indeed the applicant technically should not have been allowed to fill the position of Assistant Fire Chief without proper qualifications.

On 22 January 2007, applicant was notified by his commander of his intent to impose nonjudicial punishment under Article 15, UCMJ.    The  specific  reason  for  this  action  was  that  on
17 January 2007, he was disrespectful in language toward a senior noncommissioned officer (SNCO). He acknowledged receipt of the notification on 25 January 2007. He was advised of his rights and after consulting counsel; he waived his right to demand trial by court martial, accepted Article 15 proceedings, and provided oral and written presentations to the commander. On 1 February 2007, the commander found that he did commit one or more of the offenses alleged and imposed punishment consisting of a reprimand and reduction to senior airman. Applicant elected to appeal the Article 15 punishment and submitted matters in writing. On
8 February 2007, the group commander denied the applicant's appeal.

On 30 August 2007, the applicant's rank of staff sergeant was restored with a date of rank 20 January 2006 and effective date of 18 April 2006.

AIR FORCE EVALUATION:
AFPC/DPSOE recommends denial and states there were no legal errors requiring corrective action regarding the nonjudicial actions/punishment.

AFPC/DPSOE's complete Air Force evaluation is at Exhibit B.

ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial and states although the applicant received two Article 15 actions and a vacation action, the applicant only disputes the vacation action of April 2006. In his application before the Board, the applicant's request for relief appears to have two components. First, the applicant discusses his feeling of the unfairness of the process. He mentions a "fabricated coffee assault charge." He points out that that both his commander and his first sergeant "had FULL knowledge" that he was put into the Assistant Fire Chief position without training or qualification. He says he was "berated" and told he was not behaving like a technical sergeant and "didn't deserve [his] stripe."

This general accusation of injustice in the process is not supported by the documentation of his nonjudicial punishment actions. The applicant was afforded all his procedural rights during the Article 15 actions and the vacation action and took advantage of those rights. The applicant requested both a personal hearing before the commander and provided a written response during the vacation action. As required by AFI 51-202, Nonjudicial Punishment, the vacation action underwent legal review at two different levels and was found to be legally sufficient.

The second basis for the applicant's request is the fact that he says he was inappropriately placed in the position of Assistant Fire Chief. The applicant's logic follows: since he committed the offense that formed the basis of the vacation action while working as Assistant Fire Chief and since he was improperly appointed to that position, he is not responsible for his dereliction of duty in that position. In support of this argument, the applicant offers an Inspector General's memorandum discussing the situation. The Inspector General substantiated the complaint of improper appointment based on the regulations, without doing an investigation.

The applicant's second basis also does not provide a valid reason

for the Board to grant relief. In his written response to the vacation action (and as pointed out by the Inspector General), the applicant did not allege a lack of training, but that he failed in his duties due to sleep deprivation and the use of sleeping aids to correct his sleeping patterns. The applicant stated, "I acknowledge that I made a mistake while performing my duties on 9 March 2006. Sir, I honestly believe that this lapse in judgment can be directly attributed to sleep deprivation."

As the Inspector General points out, regardless of whether the applicant had all of the qualifications and certifications to be properly appointed Assistant Chief, the applicant certainly had all of the training necessary to handle the fire alarm at the base gym. This is the offense that was the basis of the applicant's vacation action. The commander had access to all of the facts and circumstances at the time. He was able to evaluate the applicant's written response and personal appearance. Even in light of the Inspector General's subsequent substantiation of the applicant's complaint, there is no indication that the commander acted improperly in coming to the decision that he did.

AFLOA/JAJM's complete Air Force evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reviewed the Air Force evaluations and request the Board assess all of the documentation comprehensively and objectively. Once that process is complete, he is confident that the Board will reinstate him to technical sergeant with his original date of rank, thus allowing him to recoup his self- respect as an individual  and as a professional Air Force firefighter.

Applicant's complete response, with attachments, is at Exhibit G.

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 that would warrant granting the requested relief. We find no evidence of error in this case and after thoroughly reviewing the evidence of record, we do not believe he has suffered an injustice. In cases
1.	
of this nature, we are not inclined to question the judgment of the commander absent a strong showing of abuse of discretionary authority. The applicant has not provided any evidence showing that the imposing commander abused his discretionary authority or that the punishment exceeded the maximum authorized by the UCMJ. The evidence does indicate however, that the applicant was offered every right to which he was entitled. We note that the applicant has been disciplined by several Article 15 actions for a variety of misconduct infractions. During the January 2007 Article 15 proceedings, we noted that the imposed punishment consisted of reduction to the grade of senior airman. In regards to the April 2006 vacation suspension, we also note that in August 2007, the commander removed the April 2006 vacation action and restored all rights affected by that action based on the findings of the IG report that substantiated an allegation made by the applicant. Therefore, we believe that his commander in good faith offset any doubt of an error or injustice by restoring him to the grade of staff sergeant. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application.

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.

The following members of the Board considered Docket Number BC- 2008-00949 in Executive Session on 5 February 2009, under the provisions of AFI 36-2603:

Vice Chair 
Member
Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-000949:

Exhibit A.	DD Form 149, dated 28 Feb 08, w/atchs. Exhibit B.	Letter, AFPC/DPSOE, dated 24 Apr 08.
Exhibit C.	IG Report (withdrawn), dated 17 Nov 06. Exhibit D.	Letter, SAF/MRBR, dated 9 May 08.
Exhibit E.	Letter, AFLOA/JAJM, dated 15 Jan 09 Exhibit F.	Letter, SAF/MRBR, dated 15 Jan 09.