RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04659 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His general (under honorable conditions) discharge be upgraded to honorable. 2. His pay grade be changed from Airman First Class (E-3) to Senior Airman (E-4). APPLICANT CONTENDS THAT: During the discharge process he was given the option to be demoted to the grade of E-3 and go to correctional custody in order to stay on active duty. When correctional custody was complete he was to be reinstated to E-4. If he did not choose this option his other option would be to accept a general discharge and not lose a pay grade. He chose to be discharged but was still demoted to E-3. He had been selected for promotion to NCO status (E-4) during this period but had not been promoted yet. He feels that he lost two pay grades during the discharge process. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 24 Jan 83. On 7 Jun 90, the applicant’s commander notified him he was recommending his discharge for a pattern of misconduct. The reasons for this action included on or about 5 May 90 to on or about 11 May 90, the applicant dishonorably failed to pay a debt. For the alleged wrongdoing, the applicant’s commander offered him nonjudicial punishment (NJP) on 11 May 90. The NJP paperwork indicates the applicant accepted NJP proceedings and submitted a written presentation after consulting with counsel. On 25 May 90, the applicant’s commander found that the applicant committed the offense and punished him by reducing him to the grade of Airman Basic E-1, with the portion in excess of reduction to Airman First Class, suspended, and giving him 15 days extra duty. The applicant was notified of his right to appeal and chose not to appeal. In his response to the NJP, the applicant admits to failing to pay the debt. He states that he stopped paying the allotment because he was working on debt consolidation. For similar misconduct the applicant had also received multiple verbal counseling, letters of counseling and letters of reprimand. On 7 Jun 90, the applicant acknowledged receipt of the action and of his right to consult with legal counsel and submit statements on his own behalf. He subsequently submitted a request for a conditional waiver or administrative discharge board proceedings, provided he receive no less than a general (under honorable conditions) discharge. On 1 Aug 90, the discharge authority accepted the applicant’s conditional waiver and concurred with the commander’s recommendation to furnish the applicant with a general (under honorable conditions) discharge. On 27 Aug 90, the applicant was furnished a general (under honorable conditions) discharge, and was credited with seven years, seven months, and four days of active service. On 5 Aug 15, a request for post-service information was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice. NJP is authorized by Article 15, Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 815), and governed by the Manual for Courts-Martial (Part V) and AFI 51- 202, Nonjudicial Punishment. This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. Service members first must be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander's intent to impose the punishment. The member may consult with a defense counsel to determine whether to accept the nonjudicial punishment or demand trial by court-martial. Accepting the proceedings is simply a choice of forum; it is not an admission of guilt. Nonjudicial punishment is also not, when imposed, a criminal conviction. A member accepting Article 15 proceedings may submit written matters to, and have a hearing with, the commander imposing the punishment. The member may have a spokesperson at the hearing, may request that witnesses appear and testify, and may present evidence. The commander must consider any information offered by the member and must be convinced by reliable evidence that the member committed the offenses before imposing punishment. Members who wish to contest their commander's determination or the severity of the punishment imposed may appeal to the next higher commander. The appeal authority may deny the appeal altogether if the appeal authority agrees with the action taken or may remove or modify the NJP if he or she disagrees in whole or in part with the action. A commander considering a case for disposition under Article 15 exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extent of punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause. With NJP, a "commander may, at any time, suspend any part or amount of the unexecuted punishment for a specific probationary period, until a specified date. [It] will be automatically remitted (canceled) at the end of that period, if the member does not violate the condition(s) of suspension. Suspension of punishment may not be for a period longer than 6 months. A suspension action will set a specific date after which, unless sooner vacated, the suspension will terminate and the punishment is remitted." AFI 51-202, Nonjudicial Punishment, paragraph 5.4. The applicant was afforded due process and was given the opportunity to submit matters in mitigation, extenuation, or defense. The commander at the time would have been the best person to evaluate the evidence and make a decision on the appropriateness of the NJP action. The member was given due process and given his history, the punishment was not too severe. Therefore, no relief should be granted. Additionally, the requested relief cannot be accomplished administratively. The application was received approximately 24 years since the nonjudicial punishment action was completed. The application is untimely. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice with regard to the applicant’s request to correct his pay grade to reflect E-4. The commander was acting within his authority when he vacated the applicant’s NCO status and reduced him in rank via NJP action. Due to the untimeliness of the application, AFLOC/JAJM’s recommendation regarding the Article 15 and the reasons stated above, they recommend denial. On 1 Jun 76, the grade of E-4 was redesignated as both a Senior Airman and a Sergeant. It was decided by Air Force leadership that in order to become a Sergeant, E-4s must first serve on active duty in that rank for one year, attend NCO prep course, and be recommended by their commander. It was an appointment, not a promotion, and did not change the pay grade (E-4) or rate of pay. The applicant was promoted to SrA on 10 Jul 85 and received his NCO status (Sgt/E-4) on 1 Jul 86. On 11 May 90, per AF Form 418, Selective Reenlistment/Noncommissioned Officer Status Consideration, the applicant’s commander vacated his NCO status for financial irresponsibility. On 25 May 90, he received an Article 15 for failure to pay debts. His punishment consisted of a reduction to the grade of AB and 15 days extra duty. Reduction below A1C was suspended until 24 Nov 90 and his new DOR to A1C was 25 May 90. Although AFLOA/JAJM’s advisory stated that the applicant lost two stripes, that is not the case. The applicant lost his NCO status which was not a reduction in rank or pay as explained above. Additionally, in reviewing the applicant’s Weighted Airman Promotion System file, he was considered but never selected for promotion to Staff Sergeant (SSgt) despite his contention. The last time he was considered for promotion to SSgt prior to his reduction in rank and discharge was cycle 90B5. His total score was 287.75 and the score required for selection in his AFSC was 305.03. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 1 Jul 15, 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 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 an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we find no evidence of an error or injustice that occurred in the discharge processing. Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority. The applicant has provided no evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. In the interest of justice, we considered upgrading the discharge based on clemency; however, there was no evidence submitted to compel us to recommend granting the relief sought on that basis. With respect to the applicant’s request to have his pay grade changed, we agree with the opinion and recommendation of AFPC/DPSOE and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought. 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-2014-04659 in Executive Session on 8 Sep 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04659 was considered: Exhibit A. DD Form 149, dated 8 Nov 14. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM dated 13 Feb 15. Exhibit D. Memorandum, AFPC/DPSOE dated 1 Apr 15. Exhibit E. Letter, SAF/MRBR, dated 1 Jul 15. Exhibit F. Letter, AFBCMR, dated 5 Aug 15.