RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-02170

XXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His military record be corrected to reflect:

1.	Rescission and removal of Article 15.
2.	Rescission and removal of Letter of Reprimand (LOR), dated 15 Nov 11 (sic).
3.	His date of rank restored to 1 Dec 04.
4.	His retired rank and grade as technical sergeant (E-6).

APPLICANT’S CONTENTIONS

He submitted evidence that shows the Article 15 and LOR were excessive in nature and the process was unduly influenced when the Civil Air Patrol-United States Air Force (CAP-USAF) officials did not properly follow the chain of command through Air Education and Training Command (AETC) to Air Mobility Command (AMC).  A separate investigation and administrative action within CAP resulted in his demotion in the Air Force Auxiliary, placing him in a double jeopardy status.  This separate investigation backed up the assertion that multiple procedural errors occurred and addressed the concurrent reprimand from CAP. 

Additionally, due to the change to High Year of Tenure (HYT) at the time of his demotion, he had no time to recover from the administrative actions before a forced retirement.  Also submitted is his supplemental package, delivered to his then commander.  This matter was never addressed, with the hasty retirement and, subsequently, caring for his ill wife, he was not able to resolve it. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force staff sergeant (E-5).

On 1 Oct 07, according to AF IMT 910, Enlisted Performance Report (AB thru TSGT), the applicant’s Enlisted Performance Report (EPR) for the period 16 Dec 06 – 18 Sep 07, was referred in accordance with Air Force Instruction (AFI) 36-2406, Military Performance Evaluations.

On 4 Jan 10, according to AF IMT 910, the applicant’s EPR for the period 16 Dec 08 – 15 Dec 09, was referred in accordance with AFI 36-2406.

On 20 Apr 10, according to Special Orders No. XXXXX, the applicant was relieved from active duty, organization, and station of assignment, effective 31 Mar 11, and retired effective 1 Apr 11, in the grade of technical sergeant (E-6), with Highest Grade Held on Active Duty: technical sergeant (E-6).

On 15 Nov 10, according to AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSGT), the applicant was issued nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ) for:

On or about 20 Jun 10, verbally communicate to a CAP cadet, inappropriate language in violation of Article, 134, Uniform Code of Military Justice (UCMJ).

On divers occasions between on or about 1 Dec 08 and on or about 25 Jul 10, orally communicate to a CAP cadet, certain indecent language in violation of Article 134, UCMJ.

On divers occasions between on or about 1 Dec 08 – and on or about 25 Jul 10, orally communicate to a CAP cadet, certain indecent language, in violation of Article 134, UCMJ.  

For this misconduct, the applicant was reduced to the grade of staff sergeant (E-5), with a new date of rank of 18 Nov 10, forfeiture of $1,200.00 pay per month for 2 months, suspended through 17 May 11, after which time it would be remitted without further action, unless sooner vacated, 28 days extra duty, that portion of the extra duty in excess of 14 days was suspended through 17 May 11, after which time it would be remitted without further action, unless sooner vacated, and a reprimand. 

On 28 Dec 10, according to AF IMT 910, the applicant’s EPR for the period 16 Dec 09 – 15 Dec 10, was referred in accordance with AFI 36-2406.

On 3 Feb 11, according to Special Orders XXXXX (amending Special Orders XXXXX), the applicant was “retired in the grade of staff sergeant (E-5).”

On 31 Mar 11, the applicant was furnished an honorable discharge, in the grade of staff sergeant (E-5), with Narrative Reason for Separation of Vol Retirement:  Sufficient Service for Retirement, and credited with 20 years and 10 days active service.

On 18 Nov 11, the Secretary of the Air Force (SecAF) found the applicant did not serve satisfactorily in any higher grade, and will not be advanced under the provisions of Section 8964, Title 10, United States Code.

On 22 Nov 11, according to Special Orders XXXXX (amending Special Orders XXXXX), the SecAF determined the applicant will not be advanced to any higher grade, under the provisions of Section 8964, Title 10, United States Code.

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

APPLICABLE AUTHORITY/GUIDANCE

In accordance with Air Force Instruction (AFI) 36-2907, Adverse Administrative Actions:

2.4.6.4. RICs, LOCs, LOAs or LORs no longer contained in a PIF or UIF.  Air Force records contained in other Air Force records systems, not a unit PIF or UIF (for example, senior officer UIFs), may not be rescinded by a commander or civilian director.  After the disposition date of the record (in either a PIF or UIF) has passed, members may apply to the Air Force Board for Corrections of Military Records to have their records of RICs, LOCs, LOAs, or LORs removed from other Air Force records systems.

In accordance with AFI 36-3203, Service Retirements, dated 8 Sep 06:

2.21. Retirement in Conjunction with High Year Tenure (HYT) Date. Members request voluntary retirement to be effective no later than the 1st day of the month following the HYT date. Enlisted members must voluntarily request retirement (10 USC §8914 & §8917). If an enlisted member’s retirement application has not been submitted before the DOS, that member will separate. An active duty service commitment expiring after an enlisted member’s established HYT date will be automatically waived. The HYT date is set at the following service points: staff sergeants (SSgt) at 20 years of service; technical sergeants (TSgt) at 22 years of service; master sergeants (MSgt) at 24 years of service; senior master sergeants (SMSgt) at 26 years of service; and chief master sergeants (CMSgt) at 30 years of service.

7.4. Advancing Regular Enlisted Members to a Higher Grade after 30 Years of Service. 
7.4.1. When regular enlisted members’ and certain reserve enlisted members’ active service plus service on the retired list totals 30 years, they may be advanced on the retired list to the highest grade served on active duty satisfactorily and receive retired pay in that grade, as determined by the SAF or designee under 10 USC §8964.
7.4.2. SAFPC announces the SAF decision in the following cases:
7.4.2.1. When the highest grade held was terminated for cause (unless member held the higher grade for at least 6 months during a previous period of service and received an honorable discharge in the higher grade).
7.4.2.2. When evidence leaves doubt that the member served satisfactorily in the higher grade.

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denying the applicant’s request to rescind and remove the AF Form 3070A and LOR from his official military record.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  Additionally, the applicant does not have any record of an LOR in the Automated Records Management System (ARMS), so there is no action for the Board to take on the request for removal. 

There is no evidence of the applicant’s allegations of improper and unjust handling to the correct chain of command, based on the Inspector General investigation that stated the chain of command was properly used and although it is encouraged to handle matters at the lowest level, it is not required.

In accordance with AFI 36-2907:

2.2. Standard of Proof. The Standard of Proof for adverse administrative actions is the “preponderance of the evidence.” This standard will be used when evaluating the evidence and every element of the alleged offenses. (T-1). 

2.2.1. A preponderance of the evidence exists when it is more likely than not that events have occurred as alleged. Preponderance of the evidence is not determined by the number of witnesses or exhibits, but by all the evidence and evaluating factors such as a witness’ behavior, opportunity for knowledge, information possessed, ability to recall, as well as related events and relationship to the matter being considered.

The complete advisory opinion is at Exhibit C.

AF/JA recommends denying the application.  The record contains insufficient evidence or allegation of error or injustice tending to undermine the applicant’s NJP action or imposed punishment.

With regards the applicant’s request to rescind his NJP, on 18 Nov 10, his commander conducted an Article 15 hearing and found the applicant committed misconduct of a nature to bring discredit upon the armed forces, in violation of UCMJ, Article 134.  The commander imposed a reduction in grade to staff sergeant, forfeiture of pay (suspended, then vacated), extra duty, and a reprimand.

With regards the applicant’s request to rescind his LOR, AF/JA found no LOR in the applicant’s file from the general timeframe regarding matters related to the NJP described above.  There is an LOR, from 18 Feb 09, for issues related to dereliction of work duties, consistent with his multiple referral EPRs.  Because there is no LOR related to his misconduct against CAP members, it is assumed his request to rescind his LOR actually refers to the reprimand that was administered as part of his NJP.

AF/JA review indicates the commander did not abuse his discretion in administering the NJP, finding the applicant committed the offenses as alleged, or imposing punishment.  The punishment imposed was within the permissible range for the offense, and not excessive or unduly influenced, as alleged.  The applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP or reprimand.  After the advice provided by counsel, the applicant could have demanded court-marital in lieu of NJP, which he opted against.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 25 Feb 22 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationales and recommendations of AFPC/DP2SSM and AF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  It was within the commander’s authority to issue nonjudicial punishment, the punishment was within the permissible range for the offense, and the applicant was afforded due process.  As such, the applicant’s date of rank and retired grade and rank do not require correction.  Additionally, there is no separate LOR related to the nonjudicial punishment in the applicant’s record, leaving no action for the Board to take on this issue. The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2021-02170 in Executive Session on 6 Apr 22:

, Chair, AFBCMR 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 21 Jun 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 23 Feb 22.
Exhibit D:	Advisory Opinion, AF/JA, dated 24 Feb 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 25 Feb 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.