RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-02017 INDEX CODE:	107.00, 111.01 COUNSEL: NONE

HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
1.	His nonjudicial punishment under Article 15 of the Uniformed Code of Military Justice (UCMJ) imposed on 12 March 2007 be set aside, along with an established Unfavorable Information File (UIF); his referral Enlisted Performance Reports (EPR) rendered for the period 1 September 2006 through 21 May 2007 and 22 May 2007 through 18 September 2007 be removed from his record; and his Calendar Year 2007 senior master sergeant (E-8) promotion sequence number, (PSN) 01205.0 be reinstated.

2.	His recommendation for the award of the Bronze Star Medal (BSM) be resubmitted to United States Central Command Air Forces (USCENTAF).

APPLICANT CONTENDS THAT:
He was suffering from the hidden effects of a traumatic brain injury (TBI) and Post Traumatic Stress Disorder (PTSD) that the commander was not aware of when he imposed the Article 15 punishment. The punishment imposed was disproportionate, excessive and it’s ramifications continued far beyond the intended purpose of the original punishment. All administrative avenues for appeal have been exhausted without correction of the error or injustice. USCENTAF withdrew the recommendation for the BSM without due process even though the Letter of Reprimand was dismissed/destroyed by the squadron commander.

In support of his application, applicant provides a personal letter, a letter of support from the 436th Civil Engineer Squadron Chief Enlisted Manager, an email from his defense attorney, a letter to his commander, a copy of Air Force IMT 1137, V1, Unfavorable Information File Summary, a copy of his military medical records, a letter to the Medical Evaluation Board (MEB) from the commander, a copy of the MEB narrative summary, copies of his EPRs, awards and decorations, copies of emails, a copy of his Enlisted Promotion Information, a letter from the 1st Squadron, 10th U.S. Cavalry Operations Officer, a copy of DA Form 2823, Sworn Statement, a copy of AF IMT 3994, Recommendation for Decoration Deployment/Contingency Operations, BSM, and a certificate of appreciation.

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

STATEMENT OF FACTS:
The applicant was relieved from active duty on 29 October 2008 and placed on the Temporary Disability Retired List (TDRL) effective 30 October 2008 in the grade of master sergeant, after serving 19 years, 1 month and 8 days.

On 13 June 2006, the applicant was injured by a mortar bomb explosion. On 24 June 2006, the applicant suffered injuries to the head, arm and face from another explosion that required his return from Baghdad for medical treatment. The diagnosis was that the applicant suffered a TBI from fragments he received from the explosion.

On or about 30 January 2007, while on temporary duty (TDY), the applicant allegedly purchased a rum and coke and a vodka for an airman who was under the age of twenty-one.

On 12 March 2007, the applicant received an Article 15 for violation of the UCMJ, Article 92, for being derelict in the performance of his duties by serving alcoholic beverages to an individual under the age of 21. Punishment consisted of suspended reduction to the grade of technical sergeant, a reprimand and the establishment of a UIF.

On 21 May 2007, a referral EPR was rendered for the period
1 September 2006 through 21 May 2007. Applicant submitted rebuttal comments within the required time period, on 29 May 2007.

The applicant was tentatively selected for promotion to the grade of senior master sergeant during the 07E8 promotion cycle. He received a promotion sequence number (PSN) of 1205.0, which would have incremented on 1 March 2008; however the Article 15 automatically rendered him ineligible for promotion.

On 3 December 2007, the commander recommended the applicant's eligibility for promotion be reinstated.

On 10 April 2008, a psychiatry resident at Walter Reed Army Medical Center concluded that the applicant did not meet retention standards and referred him to the Physical Evaluation Board (PEB). Applicant's diagnoses were AXIS: I, PTSD, AXIS III, Peripheral radical nerve injury, mild TDI, and hearing loss, and AXIS IV: Occupational stress, recent and multiple deployments, and AXIS: Global Assessment Functioning (GAF) scale of 65.

On 29 July 2008, AFPC/DPSIDR recommended that the applicant resubmit his request for the BSM to the original nominator for reconsideration.

The applicant's decorations include the Purple Heart, the Meritorious Service Medal, The Joint Service Commendation Medal, the Air Force Commendation Medal, 3rd Oak Leaf Cluster, the Army Commendation Medal, Joint Service Achievement Medal, and the Air Force Achievement Medal, 3rd Oak Leaf Cluster.

AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial and states there is no evidence that the commander acted in an arbitrary or capricious manner. To the contrary, there is ample evidence of the applicant's wrongdoing. In his written presentation the applicant admitted his conduct was wrong and stated that he accepts absolute responsibility for his actions. Moreover, he chose not to appeal the finding of guilt or punishment imposed and now tries to attack collaterally what he did not challenge directly. Ultimately, the only punishment imposed was a reprimand because the suspended reduction to technical sergeant was remitted after a six-month probationary period. This punishment is not only appropriate, but arguably lenient, when considering that as a senior noncommissioned officer he has a special responsibility to mentor and care for young airmen. The applicant's inability to be promoted to senior master sergeant is not part of any punishment of the nonjudicial punishment process, but rather an administrative collateral consequence that could have been avoided by the applicant had he chosen not to serve alcohol to an underage airman.

While the applicant has provided evidence of PTSD and depression, he has not provided any medical opinion that supports his contention that at the time he committed the offenses he suffered from a severe mental disease or defect that made him unable to appropriate the nature or wrongfulness of his actions. Absent this evidence and as established by Rules for Court-Martial 916(k) (3) (A), the applicant just as any other accused, is "presumed to have been mentally responsible at the time of the alleged offense." This presumption remains intact because the evidence provided only indicates some potential impact on the applicant's judgment, but does not question his mental competency to understand his actions at the time he committed the offenses.

AFLOA/JAJM’s complete evaluation is at Exhibit B.
AFPC/DPSI recommends denial and states the Article 15 and UIF were administered in accordance with AFI 36-2907, Unfavorable Information File. The UIF is an official record of unfavorable information on a member that is initiated by a member's commander. It is a file for documenting administrative, judicial or non-judicial censures concerning negative aspects of the member's performance, responsibility or behavior.

AFPC/DPSI’s complete evaluation is at Exhibit C.

AFPC/DPSOE states they defer to the recommendation of AFLOA/JAJM regarding the removal of the Article 15 and DPSIDEP regarding the removal of the two EPRs. Removal of the Article 15 and the referral report would be required for reinstatement of the applicant's 07E8 line number

AFPC/DPSOE’s complete evaluation is at Exhibit D.
AFPC/DPSIDEP recommends denial and states that both reports were processed in accordance with AFI 36-2406, Officer and Enlisted Evaluation System.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant apologized for his mistake. He believes the punishment he received was too harsh and it has had a major financial impact on both his career and family life. He thinks a lesser punishment should have been considered based upon all he has given his country. He has been medically discharged because of PTSD, with Cognitive Disorder with Depression because of the combat injuries he received performing his duties as an EOD technician. He requests relief so that he may afford to support his family. He has provided the latest additional medical documents to support his request.

Applicant's 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 timely filed.
3.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting corrective action regarding the Article 15, contested EPRs, and the BSM. In this respect, we believe the commander was in the best position to assess the circumstances of this case before rendering his decision to impose nonjudicial punishment. We have not been convinced, by his submission, that his commander abused his discretionary authority when he imposed the nonjudicial punishment and we find no reason to overturn the commander’s decision. I n  r egar ds  t o  t he  cont est ed  EPRs ,   we  ar e  not   per suaded t hat  t he  cont est ed  r epor t s  ar e   an   i naccur at e   depi ct i on   of   t he appl i cant ' s   per f or manc e    and    demons t r at ed    pot ent i al    f or    t he per i ods i n quest i on. With regards to the applicant's request for resubmission of the BSM, evidence has not been presented which leads us to believe that his commander acted inappropriately in deciding not to recommend him for the BSM. Therefore, we believe
1.	
he should resubmit his request for the BSM to the original nominator for reconsideration prior to petitioning this Board for such relief. In view of the foregoing, we find no basis upon which to grant the applicant’s requests regarding these issues.

4.	Notwithstanding the above findings, we believe that based upon his otherwise outstanding record, as evidenced by the extraordinarily heroic actions and unselfish dedication to duty he has shown by actively participating in combat to save numerous lives as an explosive ordnance disposal technician, we are inclined to reinstate his promotion eligibility and, as an exception to policy, promote him to the grade of senior master sergeant effective one day prior to his name being placed on the TDRL. Accordingly, we recommend the applicant’s records be corrected to the extent set forth below.

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.	As an exception to policy, he was promoted to the grade of senior master sergeant (E-8), effective and with date of rank of
29 October 2008.
b.	On 29 October 2008, he was relieved from active duty and his name was placed on the Temporary Disability Retired List effective 30 October 2008 in the grade of senior master sergeant (E-8), rather than master sergeant (E-7).

The following members of the Board considered Docket Number BC- 2008-02017 in Executive Session on 20 November 2008, under the provisions of AFI 36-2603:

Chair 
Member 
Member

All members voted to correct the records, as recommended.	The following documentary evidence was considered:

Exhibit A.	DD Form 149, dated 20 May 08, w/atchs. Exhibit B.	Letter, AFLOA/JAJM, dated 8 Jul 08, w/atchs. Exhibit C.	Letter, AFPC/DPSI, dated 22 Jul 08, w/atch. Exhibit D.	Letter, AFPC/DPSOE, dated 25 Jul 08.
Exhibit E.	Letter, AFPC/DPSIDEP, dated 25 Jul 08. Exhibit F.	Letter, SAF/MRBR, dated 22 Aug 08.
Exhibit G.	Applicant's Response, dated 22 Sep 08, w/atchs.