RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04001

   						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS:

His line number for promotion to the grade of Technical Sergeant (TSgt) from the Calendar Year 15E6 promotion cycle be reinstated. 

APPLICANT CONTENDS:

He was involved in a legal infraction prior to entering the military in 2002.  He received an Article 15 with reduction in rank for matters relating to the incident.  Sixteen years later, the very same incident led to a 26-day confinement because of newly identified, unresolved fines.  His home state was negotiable on the dates he was to serve his confinement.  In order to remain world-wide qualified for deployment, he selected dates for his incarceration which unknowingly impacted his Promotion Eligibility Cutoff Date (PECD).  Adjustments made to his date of rank (DOR) and total active federal military service date (TAFMSD) due to the “lost time” resulted in his line number for promotion to TSgt being taken away.  If he had selected a later confinement date he would have avoided a PECD adjustment, and would not have received a new High Year Tenure (HYT) date of Jun 17 which will force him to separate.  It is unfair he is being punished again after 16 years, after he has complied with all civil and military requirements and earned his promotion. 

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 30 May 02.

On 7 Oct 03, the applicant’s commander punished him through nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ).  The reason for taking his action was on or about 28 May 02, with intent to deceive, the applicant signed an official record, a Standard Form 86, Questionnaire for National Security Positions, on which he indicated he had not been convicted of a felony offense, and indicated within the past seven years he had not been arrested for, charged with, or convicted of an offense not listed on the form.  He knew both of these statements were false.  For this he received a reduction to the grade of Airman (E-2), suspended through 6 Apr 04, after which time it was to be remitted without further action, unless sooner vacated, and a reprimand.  

On 12 Mar 04, the applicant’s commander notified the applicant he had violated one or more of the conditions of his suspension, vacated his suspended punishment, and reduced him to the grade of Airman, with a new date of rank of 7 Oct 03.  The reason for taking this action was on or about 12 Feb 04 and 6 Feb 04, the applicant willfully used his Bank of America government travel card for personal purchases.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C, D, and E.    

AIR FORCE EVALUATIONS:

AFPC/DP2LT does not make a recommendation.  AFI 36-2134, Air Force Duty Status Program, states changes in strength accounting duty status must be updated as they occur.  According to Paragraph 3.2, confinement, absent without leave (AWOL), and deserter strength accounting duty status conditions may result in lost time.  In accordance with AFI 36-2604, Service Dates and Dates of Rank, AFPC is to adjust the TAFMSD and paydate of enlisted personnel by the number of days lost.  On 12 May 15, the applicant was placed in civilian confinement and returned to present for duty on 8 Jun 15.  Therefore, he was in “lost time status” from 12 May 15 through 7 Jun 15 for a total of 26 days.  Accordingly, the applicant’s TAFMSD and paydate were adjusted from 30 May 02 to 26 Jun 02.  

A complete copy of the AFPC/DP2LT evaluation, with attachment, is at Exhibit C.

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  Before he enlisted in the Air Force, the applicant was convicted of a criminal offense.  In 2003, he received nonjudicial punishment (Article 15) for not disclosing his arrest and conviction on his Standard Form 86, Questionnaire for National Security Positions.  The facts related to the “negotiation” are unclear, but it seems the applicant agreed to serve 26 days of confinement, and apparently had some input as to when he would serve this confinement. He chose to serve the confinement in May-Jun 15 in order to remain world-wide qualified for a scheduled deployment.  The applicant contends he was selected for promotion on 12 May 15, but on 14 July 15, he was removed from the promotion list when his Time in Service was recalculated to account for the time he spent in confinement.  As a result of the recalculation, his promotion score missed the cut-off by .44 points.  Because he was not selected for promotion, he is being separated in accordance with High Year Tenure (HYT) policies.  

The applicant is not contending an error committed by the Air Force, and we find none.  Rather, the applicant seems to assert an injustice has occurred and questions whether or not a person should be punished multiple times.  Federal courts have consistently defined “injustice” within the meaning of Title 10 United States Code (USC) § 1552 as behavior or actions which rise to a level that shocks the conscience.  This is a tough standard which requires more than merely deciding an action taken might be viewed as unfair.  While the timing of the confinement served by the applicant had a negative impact on his Air Force career, these were circumstances of the applicant’s own making.  The applicant committed a crime prior to his entry into the military, lied on a government document about the existence of that crime, and failed to pay fines, resulting in him having to pay the fine more than a decade later.  He had an opportunity to negotiate dates when he would serve his confinement related to unpaid fines, and after consulting with his attorney and command, chose to serve the confinement at a certain point in time.  His promotion score was properly adjusted to account for his lost time, and he is being separated per High Year Tenure policies. While the outcome is unfortunate for the applicant, the circumstances in this case can hardly be characterized as “shocking the conscience” or an injustice.

A complete copy of the AFPC/JA evaluation is at Exhibit D.

AFPC/DP3SP recommends denial indicating there is no evidence of an error or an injustice.  In accordance with AFI 36-2502, Airman Promotion/Demotion Programs, AFPC Enlisted Promotions conducts in-system supplemental promotion consideration monthly after initial promotion selection.  Individuals who have a change to their weighted data elements (TIG, TIS, EPR, Dec, PFE & SKT) updated in MilPDS will automatically be run through the in-system process.  The applicant was considered and tentatively selected for promotion to TSgt during cycle 15E6.  He received promotion sequence number (PSN) 1946.0 which would have incremented 1 Oct 15; however, when his service dates were adjusted to account for lost time he spent in confinement, his record ran through the monthly in-system supplemental process and he was rendered a nonselect. 

A complete copy of the AFPC/DP3SP evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 5 Jul 16 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES:

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.  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 AFPC/JA and AFPC/DP3SP and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2015-04001 in Executive Session on 22 Sep 16 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04001 was considered:

	Exhibit A.  DD Form 149, dated 14 Sep 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DP2LT, dated 16 May 16, w/atch.
	Exhibit D.  Memorandum, AFPC/JA, dated 27 May 16.
Exhibit E.  Memorandum, AFPC/DP3SP, dated 15 Jun 16.
Exhibit F.  Letter, SAF/MRBR, dated 5 Jul 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.