RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03623 COUNSEL: NONE HEARING DESIRED: Not Indicated _________________________________________________________________ APPLICANT REQUESTS THAT: His rank of staff sergeant (SSgt) (E-5) be restored. _________________________________________________________________ APPLICANT CONTENDS THAT: He was reduced in grade due to an Article 15 punishment he received on 21 April 2011. He requested suspension of his punishment (which the commander ultimately supported) on the last day such action could be taken. However, his request did not reach his commander until three days later, outside the window within which such a request may be made under the Manual for Courts-Martial. His commander indicated that no one tried to contact her on the day the request was made (while it was still timely). As a result, his Defense Counsel proposed, and his commander agreed, to set-aside the Article 15 instead, because a set-aside action does not have a strict time limit. However, the legal office indicated they “were not able to meet the criteria for the set-aside action.” In support of his appeal, the applicant provides a statement from the imposing commander, electronic communications, Release of Military Defense Counsel Memorandum, Request for Suspension of Non-judicial Punishment, several character references, and an excerpt of Manual for Courts-Martial, Part V. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of senior airman (SrA) (E-4). On 14 April 2011, while serving in the grade of SSgt, the applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for driving while intoxicated. He was charged with one specification of driving while drunk in violation of Article 111, UCMJ. On 19 April 2011, the applicant waived his right to demand trial by court-martial and accepted non-judicial punishment. He subsequently consulted a lawyer, attached a written presentation, and requested a personal appearance before the commander. After weighing the evidence, as well as the matters presented by the applicant, the commander found the applicant had committed the offense and imposed punishment consisting of reduction to the grade of SrA with a new date of rank of 21 April 2011, and 14 days extra duty. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states there is no question about the processing of the original Article 15 and a review of that action shows no error in its processing. The applicant was given all of his rights throughout the process. He was able to present matters (with the assistance of legal counsel) to the commander for consideration before imposition of punishment and he was able to appeal the decision of his commander. The applicant’s claim of error or injustice relates to the inability of his commander to process a supplemental action to the Article 15. Supplemental actions to non-judicial punishments are guided by Part V of the Manual for Courts-Martial and Air Force Instruction (AFI) 51-202, Chapter 5. In this case, the applicant requested his commander suspend his reduction in grade. Manual for Courts-Martial, Part V, paragraph 6.a(1), indicates that “an executed punishment of reduction or forfeiture of pay may be suspended only within a period of 4 months after the date of execution.” The applicant’s non-judicial punishment was executed on 21 April 2011. His request for suspension was dated 17 August 2011 and submitted to the acting first sergeant on 19 August 2011. The commander was not informed of the request until 22 August 2011, which falls outside the 4 months or 120 day window for allowing suspension of the punishment. As a result, the commander requested (with the concurrence of the group commander) to set aside the applicant’s Article 15 and impose a separate non-judicial punishment action for the same offense, but which would presumably not include as part of the punishment unsuspended reduction to the grade of SrA. JAJM states that the power to set-aside punishment should ordinarily be exercised only when the authority considering the case believes that, under all circumstances of the case, the punishment has resulted in clear injustice. AFI 51-202, paragraph 5.7, sets forth guidelines for the period within which a set-aside can be processed as not any longer than four months after execution of the punishment, unless the commander determines unusual circumstances exist and explains them in an attachment to the Air Force Form 3212, Record of Supplemental Action Under Article 15, UCMJ. In the applicant’s case, it is clear his request for a set-aside of his punishment occurred outside the window of four months. As opposed to a suspension, though, the four month time limit for a set-aside is not firm at exactly four months. The relevant guide says that a commander must exercise the power for a set-aside within a reasonable time and that four months is reasonable unless the commander determines unusual circumstances exist. The commander’s memo to the Board, dated 1 September 2011, indicates that she thought her request for supplemental action on the applicant’s Article 15 was not able to be processed because of failing to meet the “120 day requirement for submission.” The commander does not include any discussion of the question of unusual circumstances. On the other hand, the legal office appears to have focused not on the time frame for a set-aside, but whether it was a legally permissible action. An email from a captain in the legal office, dated 30 August 2011, offers the opinion that the request for a set-aside failed because the action did not fall into the “clear injustice” category. It is JAJM’s opinion that if the Board decides to grant the applicant clemency and approve his request to be reinstated to the grade of SSgt, the better option would be to suspend the reduction in grade to SrA as of 19 August 2011 (the date he submitted his request to the acting first sergeant). The complete JAJM evaluation is at Exhibit C. AFPC/DPSOE defers to the recommendation made by AFLOA/JAJM. However, DPSOE indicates that if the Board decides to grant clemency by suspending the applicant’s reduction in grade effective 19 August 2011 through 18 February 2012, his rank would be corrected to reflect SSgt with his original date of rank and effective date of 1 September 2007. His referral Enlisted Performance Report for the period 12 February 2011 through 21 June 2011 would also need to be removed rendering him eligible for supplemental promotion consideration to technical sergeant (TSgt) (E-6) for cycle 11E6, once tested. The complete DPSOE evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 9 December 2011, for review and comment within 30 days (Exhibit E). 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that his rank of staff sergeant should be restored. The applicant’s contentions are duly noted; however, we do not find his assertions sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility. We note the applicant’s commander provided a letter supporting the applicant’s request; however, she does not provide any justification of unusual circumstances as to why she did not request a set-aside of the punishment within the allowable four-month window in accordance with governing directives. Consequently, 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 the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ 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 AFBCMR Docket Number BC-2011-03623 in Executive Session on 26 April 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2011-03623: Exhibit A. DD Forms 149, dated 6 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 24 Oct 11. Exhibit D. Letter, AFPC/DPSOE, dated 16 Nov 11. Exhibit E. Letter, SAF/MRBR, dated 9 Dec 11.