RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02313
		INDEX CODE:  

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His former rank of sergeant (E-4) be restored.

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APPLICANT CONTENDS THAT:

The punishment he received as a result of an Article 15 was unjust.  He had a new commander who disregarded the recommendation of the previous commander which would have given him 45 days of extra duty and pay reduction for a period, but instead he got 45 days of extra duty, and lost pay and a stripe by reducing his rank from sergeant to airman first class.

The reduction in rank has negatively impacted his post-discharge employment efforts.

Applicant did not provide any documentation in support of the appeal.  Applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 28 May 1986 in the grade of airman basic for a period of four years.  Prior to the event under review, he was progressively promoted to the grade of senior airman (E-4), effective and with a date of rank of 28 May 1989, and was thereafter appointed a noncommissioned officer (sergeant/E-4).  He received three Airman Performance Reports (APRs) and two Enlisted Performance Reports (EPRs), closing 27 May 1987, 27 May 1988, 17 January 1989, 17 January 1990, and 17 January 1991, in which the overall evaluations/promotion recommendations were “9,” “9,” “9,” “3,” and “3,” respectively.

On 30 September 1991, the applicant was offered nonjudicial punishment for failure to go to his assigned place of duty on or about 27 September 1991.  On 1 October 1991, after consulting with military defense counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He made both written and personal presentations to his commander.  On 21 October 1991, having considered the evidence and the applicant’s response to the Article 15, his commander determined the applicant committed the offense alleged, and imposed punishment consisting of a reduction from sergeant to airman first class (E-3), forfeiture of $150 of his pay, and fourteen days of extra duty.  The applicant appealed the punishment and the appellate authority denied the appeal on 1 November 1991.  On 12 November 1991, the record was examined by a judge advocate and was determined to be legally sufficient.

Pursuant to his 20 September 1991 request, which was approved on 15 October 1991, the applicant was honorably discharged in the grade of airman first class on 26 November 1991 under the provisions of AFR 39-10, Voluntary-Miscellaneous Reasons.  He served 5 years, 5 months and 29 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM states nonjudicial punishment is permitted by Article 15, UCMJ (10 U.S.C. 815), and governed by the Manual for Courts-Martial and Air Force Instruction 51-202.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Accepting the proceedings is simply a choice of forum (service members have the right to demand trial by court-martial instead); it is not an admission of guilt.  Nonjudicial punishment does not constitute a criminal conviction.  By electing to resolve the allegation in the nonjudicial forum, the applicant placed the responsibility to decide whether he had committed the offense with his commander.

The applicant does not contest the merits of the Article 15 action.  What he, essentially, requests is that his own assessment of an appropriate punishment be substituted, 13 years after the fact, for that of the commander who was legally entrusted with that responsibility at the time.  That commander was in the best position to assess the evidence and determine the most appropriate punishment and there is no legal basis to set aside his determination.  The punishment was well within the range of sentences the commander was authorized to impose.  There is no evidence in the record that the punishment imposed was unduly harsh or an abuse of the commander’s discretion.  The commander’s actions, including the punishment meted out, have withstood appellate scrutiny and have been determined to be legally and factually sufficient.  Absent clear error or injustice, the applicant should not prevail.  Therefore, they recommend no relief be granted.  A complete copy of the evaluation is at Exhibit C.

AFPC/DPPPWB defers to JAJM’s recommendation.  A copy of their evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 October 2004, copies of the Air Force evaluations were forwarded to the applicant for review and response within 30 days.  As of this date, this office has received no response.

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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 error or injustice.  After reviewing the evidence of record, we are not persuaded that the applicant’s records are in error or that he has been the victim of an injustice.  His contentions are noted; however, in our opinion, the detailed comments provided by the appropriate Air Force offices adequately address those allegations.  Therefore, we agree with opinions and recommendations of the Air Force and adopt their rationale as the basis for the conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered this application in Executive Session on 1 February 2005, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2004-02313 was considered:

	Exhibit A.	DD Form 149, dated 23 Jul 04.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 24 Sep 04.
	Exhibit D.	Letter, AFPC/DPPPWB, dated 4 Oct 04.
	Exhibit E.	Letter, SAF/MRBR, dated 15 Oct 04.