RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02162

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Correct his rank from airman basic (E-1) to airman (E-2) prior to his 16 Nov 79 discharge.

APPLICANT’S CONTENTIONS

His reduction in rank from E-2 to E-1 was an injustice, and prejudice against him by the sergeants involved.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic.

On 14 Aug 78, the applicant entered the Air Force.  

On 29 Nov 78, the applicant received a Letter of Reprimand (LOR) for: Wrongfully having in his possession some quantity of marijuana on 18 Nov 78, in violation of Article 134, Uniform Code of Military Justice (UCMJ).  An Unfavorable Information File (UIF) was established.

On 30 Nov 78, according to documentation submitted by the applicant, he submitted a response to the LOR contending he was not found with any marijuana in his possession.  

On 30 May 79, the applicant received an LOR for: Failure to go at the time prescribed to his appointed place of duty, to include driving a privately-owned vehicle (POV) without a valid state inspection sticker on or about 20 Apr 79.  

On 15 Jun 79, the applicant received an LOR for: Failure to go at the time prescribed to his appointed place of duty, and was placed on a Control Roster for 120 days.

On 2 Oct 79, the applicant was administered an Article 15 for two incidents of failure to go. His punishment: (1) Reduction from E-2 to E-1, (2) Forfeiture of $100 per month for two months; (3) Extra duty for 30 days.  The portion of the sentence relating to reduction in grade was suspended until 24 Mar 80, at which time unless sooner vacated, will be remitted.  

On 10 Oct 79, after reviewing the applicant’s appeal of his Article 15 punishment, the applicant’s commander mitigated the punishment relating to forfeitures, to a forfeiture of $50 per month for two months. 

On 26 Oct 79, the applicant’s commander vacated the suspension of the reduction to the grade of E-1, because of his misconduct (failure to go at the time prescribed to his appointed place of duty on or about 25 Oct 79); his new date of rank for E-1 is 2 Oct 79.  Additionally, the commander notified the applicant, he was initiating action to discharge him from the Air Force, for being a marginal or nonproductive member while assigned to his organizational unit, citing that attempts at rehabilitation (verbal and written counseling) proved ineffective, listing the aforementioned disciplinary facts.    

On 16 Nov 79, the applicant was honorably discharged, in the grade of E-1, with a narrative reason for separation “Marginal Performer Assigned to Organizational Unit.” 

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

AIR FORCE EVALUATION

AFPC/DP2SPP recommends denying the application.  After reviewing the documentation provided and analysis of the pertinent disciplinary facts, there is no error or injustice for the applicant’s demotion to airman basic.  While the applicant provides personal statements for the few times he was tardy, and his rebuttal response for the possession of marijuana, these statements do not outweigh the number of rehabilitative chances given to change the course of administrative action taken against him.  The possession of illegal drugs alone would have resulted in harsher punishment.  

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Feb 22 for comment (Exhibit D), 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 applicant claims his demotion from E-2 to E-1 was an injustice.  However, the applicant has provided insufficient evidence that the commander’s decision to demote him was an error, injustice, or improperly motivated by prejudice against him.  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.

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-2021-02162 in Executive Session on 30 Jun 22:

, Panel Chair 
, 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 6 Jun 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SPP, dated 8 Nov 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 3 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.