RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04779 ER COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His grade of airman first class (E-3) be reinstated as of 16 May 13. APPLICANT CONTENDS THAT: As a result of receiving nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for underage drinking, he was reduced to the grade of airman (E-2). During a Status of Discipline meeting, his commander was informed that he could restore the applicant’s grade within four to six months of the demotion being imposed. His commander submitted a request to do so at six months;, however, it was denied due to the request not being submitted in a timely manner. His commander was erroneously led to believe he could have restored the applicant’s rank between four and six months after the Article 15 punishment was imposed. However, he could have only done so within four months of the imposition of the punishment. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of airman (E-2). On 8 Jan 13, the applicant received NJP under Article 15 for underage drinking and consuming alcohol while on standby duty. 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 declined to make a personal appearance before the commander. On 16 Jan 13, his commander found that he committed the alleged offenses and imposed punishment consisting of reduction in rank to airman (E-2), with reduction below airman (E-2) suspended, and 30 days extra duty. The applicant appealed the decision. On 23 Jan 13, his commander denied his appeal and the appellate authority denied the appeal on 30 Jan 13. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR) which are included at Exhibits C and D. AIR FORCE EVALUATION: AFLOA/JAJM recommends granting the applicant’s request, indicating there is evidence of an error or injustice. The applicant’s commander and first sergeant submitted letters of support for the applicant requesting the Board restore the applicant’s rank of E-3 with an effective date of rank of 16 May 13. The commander claims that in a status of discipline briefing, “the group was briefed that demoting an individual as part of an Article 15 proceeding could be remitted within four to six months if a commander deemed an Airman worthy of rank reinstatement.” The commander says that if he had been given correct information, he would have made every effort to reinstate the applicant’s rank within the four-month window. The Manual of Courts Martials (MCM) and AFI 51-202, Nonjudicial Punishment, provides for certain relief from NJP; specifically, mitigation, remission, suspension, and set aside. An unsuspended reduction is executed upon imposition. It can therefore never be remitted, but under appropriate circumstances, may be suspended, mitigated, or set aside. In this case, the commander clearly intended to restore the applicant’s rank. He thought he could restore the rank through remission. This was incorrect. He could not have remitted the executed reduction in rank, but he could have taken action to suspend or set aside the reduction in rank. Mitigation of a reduction in grade must be done within four months after the date of the execution. Since there were actions the commander could have taken to accomplish his objective of restoring the applicant’s rank, and since he would have taken these actions if he understood the rules, the restoration of the applicant’s rank appears to be warranted. In the interests of justice, the applicant’s request should be granted. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE does not make a recommendation. However, if the Board votes to grant this request, as is recommended by the AFLOA/JAJM advisory, recommend the applicant’s record be corrected to reflect E-3 with a date of rank (DOR) of 4 Feb 11 with an effective date of 24 Jun 11. 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 31 Mar 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. We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of AFLOA/JAJM and adopt their rationale as the basis for our conclusion that relief should be granted. The Board notes that comments of AFLOA/JAJM indicating that in order to achieve the stated outcome of the applicant’s commander of reinstating the applicant to the grade of airman first class (E-3) as of 16 May 13, the non-judicial punishment (NJP) would have to be set-aside, and that setting aside the NJP would result in the applicant’s effective date or rank (DOR) to E-3 reverting to his original DOR of 4 Feb 11. Therefore, we recommend the applicant’s record be corrected as 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 on 16 May 2013, the non-judicial punishment related to the applicant’s reduction to the grade of airman (E-2), imposed on 8 January 2013, was set aside and all rights, privileges, pay, and property affected by said reduction was restored. The following members of the Board considered AFBCMR Docket Number BC-2013-04779 in Executive Session on 2 Sep 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04779 was considered: Exhibit A. DD Forms 149, dated 9 Oct 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 19 Dec 13. Exhibit D. Letter, AFPC/DPSOE, dated 27 Jan 14. Exhibit E. Letter, SAF/MRBR, dated 31 Mar 14. 4