RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-01550

XXXXXXXXXXXXX	COUNSEL:  XXXXXXXXXXXXXX
	 
  	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

1.   His Article 15 dated 29 Sep 21 be set aside, or the punishment be suspended or mitigated.

2.   His rank of senior master sergeant (E-8) be restored. 

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contends there were material errors that substantially prejudiced his rights.  The authority imposing the nonjudicial punishment (NJP) did not consult with the State National Guard (NG) as required by AFI 51-202, Nonjudicial Punishment, to determine which component should impose discipline.  The NG was in the best position to assess whether a reduction in rank was appropriate.  Further, there were limited resources available to him, the guidance in the Manual for Courts Martial (MCM) was not followed as it pertains to first time offenders and his quality and length of service and mitigating factors were not considered.  The reduction in rank was unjust.   

On 19 Aug 21, he was a member of the State NG when he deployed to Germany.  On 29 Sep 21, the active duty airlift wing commander (AW/CC) imposed NJP for a single specification of driving under the influence (DUI) of alcohol.  He made an inappropriate decision to drive to the convenience store, 1150 feet from his residence, after consuming a few glasses of wine.  There was no accident, property damage, speeding, erratic driving, or injuries.  He was confronted by local German authorities outside the convenience store.  He had an unblemished 21-year record.  He was deployed with the active component and no one from the State NG was consulted or provided input into the imposition of punishment.  A suspended punishment would have been more appropriate.  He provides character statements in his behalf.  

In accordance with AFI 51-202, he had the right to request reconsideration of his punishment and on 19 Jan 22, his legal representation submitted the request to the state adjutant general (TAG).  On 26 Jan 22, his attorney was advised that the request was referred to the active component of the Air Force.  After four months, no action has been taken and he has not received a response.  He does not know why his request was forwarded to the active component of the Air Force.  He abided by the process, but his appeal was summarily ignored.  The disregard of his due process rights is unfair.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a master sergeant (E-7) in the Air National Guard (ANG).  

Per Special Order dated 17 Dec 19, the applicant was promoted to the rank of senior master sergeant (E-8) with a date of rank (DOR) and an effective date of promotion of 17 Dec 19. 

On 18 Nov 20, the applicant entered a period of active duty in accordance with Title10 United States Code (U.S.C.) Section 12301(d). 

AF Form 3070B, Record of Nonjudicial Punishment Proceedings (TSgt thru CMSgt), dated 23 Sep 21, shows the applicant while on an active duty period of service received an Article 15 for DUI.  The applicant chose to get in a vehicle after multiple glasses of wine rather than simply walk a few hundred meters.  He was pulled over by local police for not wearing his seatbelt and local police suspected he was drunk.  Approximately two hours after being pulled over, he still had a breath alcohol content over the legal limit.  The applicant was reduced in rank to master sergeant, with a new date of rank (DOR) of 29 Sep 21.

The applicant received a referral enlisted performance report (EPR) for the reporting period ending 30 Sep 21.  The EPR stated he disobeyed a lawful order and received NJP for DUI.  

Per the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, effective 17 Nov 21, he was release from active duty after serving on a non-contingency tour from 18 Nov 20 to 17 Nov 21, in accordance with 10 U.S.C §12301(d).  He was credited with one-year active service during this period.  

In a memorandum dated 14 Jan 22, the applicant requested the TAG suspend or mitigate his NJP.  He stated AFI 51-202, authorized the commander to make the requested action and that AFI 51-202 dictated that ANG and Reserve airmen in Title 10 status should be afforded consultation with their parent command prior to any active-duty component imposing NJP.  

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

AIR FORCE EVALUATION

DAF/JA recommends denial.  There was no error or injustice in the NJP or in the processing of the applicant’s request for reconsideration.  On 29 Sep 21, the applicant, while on active duty, received NJP for DUI.  The applicant was pulled over by host nation police on suspicion of failure to wear his seatbelt.  The traffic stop revealed alcohol on his breath and the subsequent chemical analysis revealed alcohol in his blood was over the legal limit.  

The applicant challenges the commander’s findings and punishment because he did not consult with the NG as required by AFI 51-202.  The instruction does not require consultation to determine jurisdiction to punish.  If an activated Guardsman commits misconduct on active duty, then the jurisdiction falls squarely to the active component to take disciplinary action. The coordination is solely for the purposing of informing the ANG, not receiving permission or concurrence.  The legal reason is the authority to punish pursuant to the UCMJ is tied to a member’s status, whether the member is on Title 10 or Title 32 status.  The applicant was on Title 10 status during the time of his crime.  It was only the active duty component that had authority to punish.  However, the process does include coordination pursuant to AFI 51-202 and conversations with the ANG TAG staff judge advocate (SJA) and the force support squadron (FSS) SJA confirm they indeed receive coordination.  Hence there was no deficiency with the administration of the NJP.  

On 19 Jan 22, when no longer on active duty status, the applicant petitioned the TAG for reconsideration of the NJP.  Although the NG currently has Title 32 authority over the applicant, it has no authority to reconsider the active component’s Title 10 NJP action.  This is the reason the applicant’s request was forwarded to the active component.  The State NG had no role and was in no such position.  DAF/JA also disagrees there was limited resources resulting in the imposing commander not having sufficient information.  

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 26 Aug 22 for comment (Exhibit D) but has received no response.

FINDINGS AND CONCLUSION

1.  The application was 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 rationale and recommendation of DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While counsel contends the NJP was unjust and that the State NG was in the best position to determine the appropriate punishment, he has provided insufficient evidence to substantiate this to be the case.  The evidence shows the applicant was on Title 10 orders at the time of his DUI and therefore was under the administrative control of the active duty component.  Further, the Board does not find the demotion in rank from senior master sergeant to master sergeant for his misconduct was disproportionate or unduly harsh.  The Board also finds no evidence there were limited resources available to the applicant during the administration of the NJP or that he was unjustly denied his appeal rights.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, 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-2022-01550 in Executive Session on 11 Oct 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 1 Jun 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 17 Aug 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 26 Aug 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.