RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01789 INDEX CODE: 126.00
COUNSEL:	
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
The Article 15 be set aside and he be restored to the grade of master sergeant.

APPLICANT CONTENDS THAT:
Mitigating evidence of mental and sleeping disorders contributed to his Article 15 and subsequent reduction in rank. He believes had this evidence been presented to his commander, he may not have been retired in the lower grade.

In support of his application, applicant provides a legal brief.
Applicant's complete submission, with attachment, is at Exhibit A.

STATEMENT OF FACTS:
The applicant enlisted in the Regular Air Force on 28 June 1978 and was progressively promoted to the grade of master sergeant.

On 2 June and 22 July 2004, General Court-Martial charges of alleged larceny of government property were preferred on the applicant. On 23 September 2004, a military judge ordered a sanity board. On 28 October 2004, the applicant was admitted to the Bridge Way Psychiatric Hospital. On 3 December 2004, the sanity board was complete. Subsequently, the convening authority approved a pretrial agreement wherein the applicant agreed to accept an Article 15 for theft of government property in lieu of a court-martial.

On 16 March 2005, the applicant was notified by his commander of his intent to impose nonjudicial punishment under Article 15, UCMJ.   The specific reason for this action was the theft of
$2,668.08 worth of government property in violation of Article 121, UCMJ. 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. After considering the matter, the commander found that he did commit one or more of the offenses alleged and imposed punishment consisting of reduction in grade to technical sergeant and forfeiture of $1,454.00 pay per month for 2 months. Applicant elected to appeal the Article
15 punishment. After consideration, the appellate authority denied the appeal.

On 7 July 2005 the Secretary of the Air Force determined that the applicant did not serve honorably in the grade of master sergeant. On 1 September 2005, the applicant was honorably retired from the Air Force in the grade of technical sergeant after serving 27 years, 2 months and 3 days of total active duty.

AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial and states the applicant's request is without sufficient basis. Contrary to the applicant's assertion, his commander did not indicate he would have been more lenient if he had known the full scope of the applicant's medical condition. Rather, his commander pointed out that the applicant had the opportunity to present evidence of his impaired judgment, if any impairment existed, by providing copies of the sanity board results. There were two sanity board evaluations during the pendency of the court-martial which could have been provided to his commander at the time of the Article 15 had the applicant desired to do so.

The applicant also alleges, without a shred of proof, that he believes his commander and JAG already knew of the outcome of his sanity boards because "otherwise, why did they not proceed with court-martial?" The question highlights the disingenuous nature of the applicant's request because he knows full well the reason the charges went to an Article 15 rather than a court-martial was because he requested it. The applicant now complains because he received the very deal he agreed upon; to avoid a court-martial and the prospect of a federal conviction and a maximum punishment of a dishonorable discharge, 10 years confinement, total forfeiture of all pay and allowances, and reduction to E-1 he agreed to the forum of nonjudicial punishment. The applicant now attempts to gain additional advantage by requesting reinstatement to the grade of master sergeant knowing he will not be brought back on active duty to face court-martial.

The old adage that the applicant wants to have his cake and eat it too rings true  in this case. As his own request for nonjudicial punishment was granted in the pretrial agreement, the applicant now attempts to avoid virtually all consequences of his criminal activity by requesting the bulk of his Article 15 punishment be set aside. While retiring as a technical sergeant rather than a master sergeant will certainly reduce the applicant's retirement benefits, this is merely a collateral

consequence of the punishment imposed as a result of his misconduct. The evidence does not demonstrate haste, as the applicant alleges, but rather a carefully weighed response, which was not imposed until 18 months after discovery of the applicant's criminal activity.

AFLOA/JAJM's complete evaluation, with attachments, is at Exhibit C.

AFPC/DPSOA concurs with the JAJM recommendation that no evidence of error or injustice was found.

AFPC/DPSOA's complete evaluation is at Exhibit D.
AFPC/DPSOR recommends denial and states that leniency was shown when the government honored the applicant's offer to accept punishment with nonjudicial punishment rather than prosecution by a general court-martial. In the end, the applicant was able to receive an honorable discharge and retirement.

AFPC/DPSOR's complete evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on 1 August 2008 for review and comment within 30 days. As of this date, this office has received no response.

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 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.  Therefore, based
1.	
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- 2008-01789 in Executive Session on 8 October 2008, under the provisions of AFI 36-2603:

Panel Chair 
Member 
Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-01789:

Exhibit A. DD Form 149, dated 5 Apr 08, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 24 Jun 08, w/atchs. Exhibit C. Letter, AFPC/DPSOE, dated 9 Jul 08.
Exhibit D. Letter, AFPC/DPSOR, dated 14 Jul 08, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 1 Aug 08.