RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03490

XXXXXXXXXXXXX	COUNSEL: NONE

	HEARING: YES

APPLICANT REQUESTS THAT:

1. His military records to include his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, be corrected to accurately reflect rank, dates of promotion, awards/decorations, assignments, skill level, and reenlistment code.  

2. AF Forms 3070, Record of Nonjudicial Punishment Proceedings (AB thru TSgt), dated 3 Sep 13 and 17 Oct 13, be removed from his military records, and all benefits lost because of the “Nonjudicial Punishment” (NJP) be restored.    

APPLICANT CONTENDS THAT:

1. His DD Form 214 is not accurate. 

2.  He was improperly punished twice for the same misconduct, given a subsequent increase in punishment for the same misconduct, and improperly given NJP for misconduct, which the commander should have been prohibited from pursuing.  

3. The length of time (over a year) without receiving a response makes his case a documented abuse/whistleblower reprisal case.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 3 Sep 13, the applicant was notified of his commander’s intent to impose NJP punishment (reduction from the grade of staff sergeant (E-5) to senior airman (E-4)), for violation of UCMJ, Article 92 (unauthorized use of his Government Travel Card between 14 May 13 and 21 Aug 13).  

On 10 Sep 13, the punishment was imposed reducing the applicant’s grade from E-5 to E-4.

On 11 Oct 13, the Appellate Authority granted the applicant’s appeal of the reduction to the grade of E-4, suspending it through 9 Mar 14.  

On 15 Oct 13, the applicant’s commander set aside the aforementioned NJP action.

On 17 Oct 13 the applicant was notified of his commander’s intent to impose NJP punishment (reduction in grade from staff sergeant (E-5) to senior airman (E-4), for violation of UCMJ, Article 92 (applicant’s failure to refrain from driving on MacDill AFB with a suspended license between 30 Aug 13 and 4 Sep 13).

On 23 Oct 13, the punishment was imposed reducing the applicant’s grade from E-5 to E-4.

On 10 Apr 14, the applicant received a “referral” Enlisted Performance Report (EPR), for receiving two Article 15s during the rating period.  The overall performance assessment was “4” Above Average.  

On 3 Aug 14, the applicant was honorably discharged from the Regular Air Force  in the grade of E-4 for “Reduction in Force,” credited with eight years, eight months, and nineteen days of active service.  

On 13 Mar 15, the applicant enlisted in the Georgia Air National Guard in the grade of E-4.  .

On 15 Jun 18, AFPC/DP1SSP sent the applicant a letter regarding his request for a DD Form 214 correction for his awards and decorations.  They requested he submit to their office SF 180, Request Pertaining to Military Records, with further details and supporting documentation, so they could address his concerns (Exhibit F).  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and E.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the application in regards to setting aside the NJP.  On 10 Sep 13, the applicant’s commander reduced his grade from E-5 to E-4, as part of his first NJP action (unauthorized use of his Government Travel Card between 14 May 13 and 21 Aug 13).  On 24 Sep 13, the commander further reduced the applicant’s grade from E-4 to E-3 as punishment for a second NJP action (applicant’s failure to refrain from driving on MacDill AFB with a suspended license between 30 Aug 13 and 4 Sep 13).  However, on 11 Oct 13, the appellate authority granted the applicant’s appeal on the first NJP action, and suspended the initial reduction in grade until 9 Mar 14, at which point it would be remitted without further action.  While the applicant was technically an E-4 when his second NJP punishment was imposed, the appeal granted to him on his first NJP essentially reversed that grade reduction via the suspension, meaning the commander’s reduction in grade from E-4 to E-3 as punishment for the second NJP was, in actuality, a reduction in grade from E-5 to E-3, which is impermissible in accordance with the Manual for Courts-Martial (MCM).  Within a matter of days, the command or legal reviewing officials likely recognized the now-unauthorized reduction in grade from the second NJP and corrected it (set aside 24 Sep 13 NJP) to ensure applicant was not being improperly reduced in grade.  

The applicant alleges that setting aside and then re-issuing the NJP constitutes double jeopardy in his case.  AFLOA/JAJM opines had the commander not done the set aside, the NJP would have been legally insufficient.  Furthermore, there is no double jeopardy in the applicant’s case; because of the set aside, he was never punished for the misconduct involving driving with the suspended license.  The applicant further alleges that the misconduct from his second NJP was known to his commander at the time of his first NJP, thus constituting uncharged misconduct.  AFLOA/JAJM did not find any evidence suggesting that the commander knew about the second incident of misconduct when they issued the first NJP.  In fact, to the contrary, the second NJP alleged misconduct until 4 Sep 13, one day after he was served his first NJP action, suggesting they were unaware of the additional misconduct.  With the appellate action on the first NJP, the applicant’s grade was never actually reduced; therefore, his punishment did not increase as a result of the set aside and subsequent issuance of the corrected NJP.  In the original second NJP action, he was reduced in grade from E-4 to E-3, a one grade reduction.  In the corrected action, the applicant was reduced from E-5 to E-4, also a one grade reduction.  His military records should reflect that he was an E-5 until the effective date of his second NJP’s reduction, 23 Oct 13.  They did verify this is accurately reflected in the applicant’s records.  They opine that insufficient evidence has been presented to substantiate any procedural violation of error with regards to applicant’s concerns.  The complete advisory is at Exhibit C.

AFPC/DP2SPP does not provide a recommendation, as they have no equity in the decision regarding the reduction in grade by NJP, or removal of the referral EPR.  They do provide required personnel actions should the Board direct removal of the NJP, and removal of the referral EPR.  These actions involve changing the applicant’s grade and DOR, EPR corrections, and supplemental promotion consideration.  The complete advisory is at Exhibit D.

AFPC/DP2SSM recommends denying the application regarding changing the applicant’s RE code 4D.  The applicant was demoted to the grade of SrA (E-4) on 23 Oct 13 by an Article 15.  The demotion also caused the applicant’s RE code to be updated to 4D based on applicant being in the grade of SrA and having completed at least 7 years (on 14 Nov 12) of TAFMS without a projection to SSgt (E-5).  The applicant separated on 3 Aug 14 with the correct RE code of 4D based on being in the grade of SrA and having between 7 and 16 years of TAFMS at the time of separation.  The applicant had 8 years, 8 months, and 19 days of TAFMS and was given an honorable character of service.  The complete advisory is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 25 Sep 18 for comment (Exhibit G), and the applicant replied on 17 Oct 18.  In his response, the applicant contends he received double punishment for the same charge.  Double Jeopardy and double punishment is not allowed.  His demotion was not legal, as fraudulent, coerced, collusive, or illegal documents cannot be legally enforced.  The matter in question was not only a situation of abuse of power, but simple fraud and embezzlement.  The applicant’s complete response is at Exhibit H.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error and injustice.  The Board concurs with the rationale and recommendations of AFLOA/JAJM and AFPC/DP2SSM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the record.

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 RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-03490 in Executive Session on 8 Nov 18:

, Panel Chair 
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 24 Aug 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 13 Dec 16.
Exhibit D:	Advisory opinion, AFPC/DP2SPP, dated 25 Sep 17.
Exhibit E:	Advisory opinion, AFPC/DP2SSM, dated 23 Apr 18.
Exhibit F:	Letter, AFPC/DP1SSP, dated 15 Jun 18.  
Exhibit G:	Notification of Advisory, SAF/MRBC to applicant, dated 25 Sep 18.
Exhibit H:	Letter, Applicant, dated 17 Oct 18.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9, pertaining to Docket Number BC-2016-03490.