RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01771 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. His Article 15, dated 13 Feb 01 be removed. 2. His Special Court-Martial convictions of 2 Dec 03 and 13 Jan 04 be removed. 2. His highest grade held of Staff Sergeant (SSgt/E-5) be restored and he be retired in that grade. 3. Direct promotion to technical sergeant (TSgt/E-6) 4. His 10 months of correctional custody be replaced with 10 months of active duty service. 5. He receive 20 times his base pay, in the grade of SSgt, including Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS). 6. Medical treatment for his spouse. ________________________________________________________________ THE APPLICANT CONTENDS THAT: The Article 15 should be set aside because the order he violated was unlawful. He contends 1) his vehicle was unlawfully searched without his consent; 2) he was unlawfully ordered to show proof of insurance, vehicle registration, a valid license plate, and base decals; and (3) he was unlawfully ordered to refrain from driving his vehicle until he complied with the order. His 2003 Special court-martial conviction should be set aside because he did not disrespect the master sergeant (MSgt/E-7); instead it was merely the result of “miscommunication and misunderstanding.” Further, that his assault on his wife was in self-defense, because “it is a natural reaction for any man to stop anyone from squeezing and twisting their testicles.” He has an 80 percent service-connected disability rating from the Department of Veterans Affairs (DVA) for severe depression with an anger condition, Post-Traumatic Stress Disorder (PTSD), chronic pain in the joints and a knee operation. He makes many appointments with the DVA for treatment of his mental and physical conditions and can now mentally face all of this. In support of his appeal, the applicant provides three separate DD Forms 149, Application for Correction of Military Record, same date; two personal statements, dated 6 and 14 May 10; a copy of his Area Defense Counsel’s letter requesting the Article 15 be set aside; a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 31 Dec 04 separation, and other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force and the Air Force Legal Operations Agency (AFLOA). Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ THE AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, stating, in part, the applicant has not shown a clear error or injustice. In regard to the 2001 Article 15 action, the applicant asserts the inconsistency between the vehicle registration and the temporary license plate was the result of a car dealer’s error. The dealership resolved the error by issuing permanent plates and registration, and he received his base decals. He was advised by a TSgt, that only a person with authority delegated by the Wing vice commander could suspend driving privileges and that he was “legal” to drive his vehicle. He then returned to his duty section and waited nearly an hour for the MSgt to return and then drove his vehicle home. The applicant does not contest the fact that he drove his vehicle in violation of his supervising noncommissioned officer’s written order. Moreover, the applicant does not contest or even address the separate ground for his nonjudicial punishment; disrespect toward a superior noncommissioned officer. Nor does he contest or address the dereliction of duty basis for the vacation of his suspended reduction of rank. Rather, the applicant simply challenges one component of one of the bases for his nonjudicial punishment—the lawfulness of the order he disobeyed. The applicant had a full opportunity to present his defense to his commander during the Article 15 proceedings. And later, in a 12 May 03 memorandum, the applicant’s defense counsel thoroughly addressed the lawfulness of the order and requested that the Article 15 be set aside. None of the circumstances discussed by the applicant or presented in his record establish an error or injustice in the Article 15 action, or otherwise warrants setting aside the reduction in rank imposed by the applicant’s commander. Moreover, the applicant’s allegations provide no basis for disturbing the commander’s judgment of the facts and circumstances of the offense or the appropriate punishment. The commander fully considered the punishment of reduction of rank— and exercised restraint in originally suspending that punishment. The punishment was an authorized and commensurate punishment in this case. In regard to the 2002 and 2003 Special courts-martial, the applicant does not allege any error or injustice resulting from the 2002 court-martial; however, he contends that he did not disrespect a senior noncommissioned officer (SNCO) or assault his wife—the charges that formed the basis of his 2003 court- martial. The applicant pled guilty, the military judge conducted a lengthy inquiry to determine whether the applicant’s pleas were voluntary and that he had committed the offenses. Contrary to the applicant’s claim that his interaction with the SNCO was a simple “misunderstanding,” he told the court that he had argued with the SNCO on three separate occasions—and persisted when the SNCO told him to stop arguing. He also told the court that he agreed that his behavior was disrespectful. While clemency may be granted, the applicant has not presented any additional information which supports the Board granting clemency and undoing the decisions of the panel and the convening authority made nearly seven years ago. Certainly, the applicant has not provided any support for the idea that he has turned his life around or that he has made a difference in his community—factors that might also warrant some consideration for clemency. On the contrary, he refuses to accept responsibility for the actions that led to multiple Article 15 actions and two court-martial convictions. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOR recommends denial to retire the applicant in any higher grade than airman (Amn) and not advance him on the Retired list to any higher grade than airman first class (A1C) as has already been determined by the Secretary of the Air Force Personnel Council (SAFPC). The applicant contends that the incidents leading to his reduction from SSgt to SrA and from SrA to Amn were the result of error or injustice due to “miscommunication and misunderstanding.” The applicant retired in the grade of Amn effective 1 Jan 05, with 20 years and 10 days of total active Federal military service (TAFMS). The Air Force promoted the applicant to the grade of SSgt with an effective date of 1 Sep 93 and reduced him to the grade of SrA effective 13 Feb 01. On 27 Jan 04, he was reduced to the grade of Amn as a result of a court-martial conviction. Between the date of his reduction to the grade of Amn (27 Jan 04) and his last day on active duty (31 Dec 04), the applicant held no higher grade than Amn. Because the applicant held the grade of Amn on the date of his retirement, his record correctly reflects his retired grade as Amn. The applicant’s case was forwarded to SAFPC for a determination as to whether the Air Force would advance the applicant on the Retired list to a higher grade than Amn when the applicant’s time on active duty and time on the Retired list totals 30 years in accordance with Title 10, United States Code (USC), Section 8964. SAFPC determined that the applicant did not serve satisfactorily in the higher grade of SSgt but that he did serve satisfactorily in the grade of A1C and would advance to the grade of A1C effective 21 Dec 2014, 30 years from his adjusted total active Federal military service date (TAFMSD) for the 255 days of lost time. The complete AFPC/DPSOR evaluation, with attachment, is at Exhibit D. AFPC/DPSOE recommends denial of the applicant’s request for promotion to TSgt, a grade for which the applicant was never selected. Based on the applicant’s date of rank (DOR) to SSgt during cycle 94A5, he was considered and nonselected for promotion to TSgt five times before his retirement in Jan 05. He was ineligible for promotion during cycle 01E6 due to the Article 15. He became ineligible for subsequent promotion cycles due to the vacation of the suspended reduction on 9 Jul 01, which he subsequently was reduced to the grade of SrA with a new DOR of 13 Feb 01. Based on this DOR, he would have been eligible for promotion consideration to SSgt for cycle 02E5; however, he received a referral enlisted evaluation report (EPR) for the period 2 Nov 00 – 1 Nov 01. He remained ineligible for consideration during cycle 03E5 due to another referral EPR for the period 2 Nov 01 – 30 Dec 02. He was court-martialed in Jan 03 and in Mar 04, the latter of which, his punishment consisted of a reduction to Amn with a new DOR of 27 Jan 04 and 10 months confinement. The complete AFPC/DPSOE evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 13 Aug 10 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). ________________________________________________________________ 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 error or injustice. The Air Force Offices of primary responsibility (OPRs) and the Air Force Legal Operations Agency have adequately addressed the issues presented by the applicant and we find no evidence of error in this case and after thoroughly reviewing the documentation that has been submitted in support of his appeal, we do not believe he has suffered an injustice. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application. ________________________________________________________________ THE BOARD DETERMINES THAT: 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-2010-01771 in Executive Session on 10 February 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 May 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 2 Jul 10. Exhibit D. Letter, AFPC/DPSOR, dated 12 Jul 10, w/atch. Exhibit E. Letter, AFPC/DPSOE, dated 6 Aug 10. Exhibit F. Letter, SAF/MRBR, dated 13 Aug 10. Panel Chair