RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05825 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: The Article 15 imposed on 4 Mar 13 be removed from his records. APPLICANT CONTENDS THAT: Since he was a staff sergeant (E-5) at the time of his punishment, his commander did not have the authority to reduce him to the rank of airman first class (E-3). The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 12 Aug 08, the applicant commenced his enlistment in the Air Force. On 25 Feb 13, the applicant was offered nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction of duty for developing an unprofessional relationship with another airman and visiting the quarters of a female airman. He was provided an opportunity to consult legal counsel. He accepted the NJP, waiving his right to demand trial by court-martial. He submitted a written presentation and requested to make a personal appearance before the commander. On 4 Mar 13, his commander found that he committed the alleged offenses and imposed punishment consisting of reduction in rank to airman first class (E-3), suspended through 3 Sep 13, and a reprimand. The applicant did not appeal. On 1 Mar 13, the applicant was promoted to the grade of staff sergeant (E-5). On 11 Aug 14, the applicant was honorably discharged in the grade staff sergeant (E-5). AIR FORCE EVALUATION: AFPC/DPSOE recommends amending the AF Form 3070, Record of Nonjudicial Punishment Proceedings, to reflect a suspended reduction in rank from staff sergeant to senior airman. The applicant was a senior airman when the Article 15 action was initiated, and since his commander never placed his promotion on hold or issued a nonrecommendation for promotion action, his rank at the completion of the Article 15 action was staff sergeant. A complete copy of the AFPC/DPSOE evaluation is at Exhibit C. AFLOA/JAJM recommends granting relief by setting aside or mitigating the portion of the punishment which reduced the applicant’s rank below of senior airman (E-4). Under Article 15, if the commander imposing the punishment is a lieutenant or captain and the service member is in the grade of E-1 through E-6, the maximum permissible punishment is forfeiture of 7 days pay, 14 days restriction, 14 days extra duty, 7 days correctional custody, a reprimand, and a reduction of one grade for E-5 and below. Since the applicant was promoted to staff sergeant (E-5) before the action was completed, it was impermissible for his commander to reduce his rank to airman first class (E-3). Because the applicant’s rank at the time of punishment was staff sergeant (E-5), the part of the punishment reducing him in rank below senior airman (E-4) should be mitigated or set aside. However, this error does not warrant setting aside the entire NJP as the applicant requests. The applicant’s reduction was suspended and he was separated from the military as a staff sergeant (E-5); therefore, the impermissible reduction had no tangible effect on his rank during his remaining time on active duty. A complete copy of the AFLOA/JAJM evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 29 Sep 14 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting partial relief. While the applicant contends that because his commander did not have authority to reduce him in grade to airman first class (E-3) because he held the grade of staff sergeant (E-5) before the action was completed, the Article 15 in its entirety should be removed from his records. However, because the applicant has not brought forth any evidence that would convince us that he did not commit the misconduct that formed the basis of the action, we are not convinced that its removal is appropriate. Instead, we believe it would be appropriate to simply correct the record to show that his suspended reduction was to the grade of senior airman (E-4), instead of airman first class (E-3). We believe this constitutes full and fitting relief in this case. Therefore, we recommend the applicant’s records be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, initiated on 25 February 2013 and imposed on 4 Mar 2013, be amended to reflect reduction to the grade of senior airman (E-4) rather than airman first class (E3). The following members of the Board considered AFBCMR Docket Number BC-2013-05825 in Executive Session on 11 Dec 14 under the provisions of AFI 36-2603: , Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-05825 was considered: Exhibit A. DD Form 149, dated 18 Dec 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOE, dated 9 Sep 14. Exhibit D. Memorandum, AFLOA/JAJM, dated 16 Sep 14. Exhibit E. Letter, SAF/MRBR, dated 29 Sep 14.