AIR FORCE BOARD FOR  CORRECTION OF MILITARY RECORDS  OGT  0 9  @@ 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET 'NUMBER:  97-02382 

COUNSEL:  NONE 

HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 
1.  He be promoted to the grade of master sergeant  (E-7) with a 
date of rank  (DOR) prior to his retirement on 31 May 1995. 
2.  The  Article  15, Uniform  Code  of  Military  Justice,  (UCMJ), 
imposed  on  3  March  1992,  be  set  aside  and  removed  from  his 
records. 

APPLICANT CONTENDS THAT: 

The  testing  opportunity, when  he  was  considered supplementally 
for promotion  to  the  grade  of  master  sergeant, was  not  fair, 
equitable, or in his best  interest.  He states that he was not 
provided sufficient study time before being required to test f o r  
the supplemental consideration. 
With  regard  to  his  request  for  set-aside  of  the  Article  15 
action, applicant disputes that the validity of a mortgage debt, 
upon  which  the  Article  15,  dated  3 March  1992,  charge  of 
dishonorably failing to pay a debt is founded, was not disputed. 
He  contends  that  his  commander,  while  conducting  the 
investigation  of  the  offense, denied  the  applicant  his  rights 
afforded him under Article 31 of the UCMJ.  Applicant states that 
the situation that brought  about the  financial irresponsibility 
was  a  direct  result  of  his  commander  refusing  to  use  his 
discretion to  resolve  the  injustice  which  created  a  situation 
where the applicant had to prove that  the commander was unfair, 
unjust and not with legal merit. 
Applicant's complete submission is attached at Exhibit A .  

STATEMENT OF FACTS: 
Applicant enlisted in the Regular Air Force on 14 May 1975 f o r   a 
period of six years. 

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In a previous action by  the AFBCMR, the Board directed that an 
Enlisted Performance Report  (EPR), for the period ending 20 May 
1992  be  declared  void  and  removed  from  his  records; that  the 
suspended reduction issued by nonjudicial punishment on 3 March 
1992 was not vacated on 1 July 1992 but on that date he continued 
to  serve  in  the  grade  of  technical  sergeant with  an  effective 
date  and  date  of  rank  of  1  September  1988;  and,  that  the 
memorandum,  dated  16  June  1992,  denying  his  request  for 
reenlistment, be declared void and removed from his records.  It 
was further directed that the applicant be provided supplemental 
consideration for promotion to the grade of master sergeant for 
all appropriate cycles beginning with cycle 93A7.  (A copy of the 
Memorandum for the Chief of Staff and the Record of  Proceedings 
( R O P ) ,   dated 8 August 1994, is attached at TAB  1). 
Applicant  was  considered  for promotion  to  the  grade  of  master 
sergeant  by  supplemental  consideration  for  the  93A7, 94A7 and 
95A7 cycles and not selected. 
Applicant was  subsequently released from active duty on 31 May 
1995 and retired effective  1  June 1995 under the provisions of 
AFI  36-3203  (Voluntary Retirement:  Maximum  Service or  Time  In 
Grade) in the grade of technical sergeant.  He  served 20 years 
and 18 days of  active military service. 

AIR FORCE  EVALUATION: 
The  Chief, Military  Justice Division, Air  Force Legal  Services 
Agency, AFLSA/JAJM, states that there is no indication, beyond a 
bare  statement from the  applicant  in  this application, that he 
did, in fact, dispute the validity of the debt which formed the 
basis  f o r   the  Article  15  prior  to  filing  a  petition  for 
bankruptcy.  Petitioning a Bankruptcy Court for discharge from a 
debt is logically inconsistent with the position that  such debt 
is not  properly due and owing unless the  request  for discharge 
from  that  debt  is  incidental  to  a  request  for  discharge  from 
other debts  also  listed  in  the  bankruptcy  petition.  Assuming 
that  the  applicant  did  dispute  the debt  at  the  relevant  time, 
however, AFLSAIJAJM has no indication that applicant apprised the 
commander who imposed the Article 15 of  such dispute. 
Testimonial information gathered from an accused who has not been 
informed of  his Article  31 rights can properly be  t h e   basis of 
nonjudicial punishment under Article 15.  Article  31 applies to 
evidence gathered  for use  in a  court, not  to  evidence used  in 
nonjudicial punishment  proceedings.  There  are  no  legal  errors 
The  Article  15  and  resulting 
requiring  corrective  action. 

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punishment were properly executed and legally sufficient. 
recommend applicant's request be denied. 
A copy of the Air Force evaluation is attached at Exhibit C. 

They 

The  Superintendent, Military  Testing  Section,  HQ  AFPC/DPPPWE, 
states that with regard to the promotion testing study time and 
receipt of  study material, the time  frames apply .in most  cases 
and obviously don't apply  in  situations where  the BCMR  directs 
supplemental  promotion  consideration. 
AFI  36-2605  directs 
testing  30  days  after  notification  for  individuals who  become 
eligible unexpectedly as a result of BCMR action.  In this case, 
the applicant was  tested  30 days after notification.  The fact 
that his commander took eight days to sign a letter recommending 
the  applicant  for  promotion  should  not  have  impacted  the 
applicant's study  time.  If  it  did, the  applicant  should have 
requested rescheduling of the test date.  There is no mention of 
such a request in this package. 
The  October  1994 Notification  of  Automatic  Order  for Weighted 
Airman  Promotion System  (WAPS) Career  Development  Course  (CDC) 
Material mentioned by  the applicant was advising that Specialty 
Knowledge Test  (SKT)  material for the upcoming testing cycle 95E7 
was  being  ordered  for  him.  The  output  of  that  product  was 
erroneous since the applicant was not eligible for the 9537 cycle 
due to his High Year of Tenure  (HYT).  One of  the problems with 
the  program  in  1994  was  its  failure  to  properly  screen  out 
ineligible members.  This is probably why the applicant received 
an erroneous notification.  In summary, the applicant was treated 
fairly and consistently with others in his situation concerning 
study time and availability of study materials. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit D . 
The Chief Inquiries/AFBCMR Section, Enlisted Promotion Branch, HQ 
AFPC/DPPPWB, states that  the  applicant  doesn't believe  that  he 
was provided  fair and  equitable promotion consideration because 
he was  considered for three promotion  cycles with  the score of 
the  Promotion Fitness Examination  (PFE) he  was  administered on 
7 November  1994.  Because  the applicant was not  on active duty 
between 10 July 1992 and 7 June 1993 he had the option of being 
considered with both the PFE and the SKT or considered with the 
PFE only.  He  chose to be  considered with  only the  PFE.  When 
promotion  testing begins  for one cycle, tests f o r   the previous 
cycle are destroyed as the Air Force does not administer obsolete 
tests  to  members  competing  for promotion.  When  the  applicant 
tested  on  7  November  1994,  he  took  revision  2 6   which  was 
In  keeping  with  established 
applicable  to  the  95A7  cycle. 

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policy,  the  results  of  this  test  were  use  in  his  promotion 
consideration  for the  95A7 cycle as well  as the  94A7 and  93A7 
cycles. 
with regard to applicant's claim that AFPC/DPPPWB  was incorrect 
that  applicant  was  not  eligible  for  promotion  until  the  93A7 
cycle, the applicant was promoted  to technical sergeant with a 
date  of  rank  and  effective date of  1  September 1988.  He was 
ineligible for the 9OA7 and 91A7 cycles because he did not have 
the  required  time-in-grade. 
The  BCMR  voided  a  vacation  of 
suspended reduction to senior airman which restored his grade to 
technical sergeant.  However, it did not void that portion of the 
Article 15 punishment which called for a suspended reduction and 
the  applicant  was  automatically  ineligible  for  promotion 
consideration. 

Applicant was considered for all promotion cycles he was eligible 
for in accordance with  the policies and procedures appropriate 
during  the  time  frame  and  was  not  selected.  The  fact  that 
policies may  change had  no bearing  on the  applicant's previous 
supplemental promotion consideration as he believes.  The policy 
applicant is referring to was approved based on a recommendation 
made by the Enlisted Evaluation System  (EES) Review Group in 1995 
and  implemented  for members  who  began  testing  in  1997.  This 
policy  was  not  applicable  nor  appropriate  for  the  applicant's 
previous  promotion  considerations.  They  recommend  applicant's 
request be denied. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit E. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Copies  of  the  Air  Force  evaluations  were  forwarded  to  the 
applicant on 24 November 1997 for review and response within 30 
no response has been  received by  this 
days. 
off ice. 

As of  this date, 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2 .   The application was timely filed. 
3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 

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a  thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we  are not persuaded  that  he  should be  promoted  to 
the grade of master sergeant, with a date of  rank prior to his 
retirement, or, that the Article  15, dated 3  March  1992, should 
be set aside and removed from his records.  His contentions are 
duly  noted;  however,  ye  do  not  find  these  uncorroborated 
assertions,  in  and  by  themselves,  sufficiently  persuasive  to 
override the rationale provided  by  the Air  Force.  Applicant's 
concern that  he  was  not  provided  sufficient  study time  before 
being required to test  for supplemental promotion consideration 
is appropriately addressed by the HQ AFPC/DPPPWE  advisory.  The 
regulation  directs  testing  30  days  after  notification  for 
individuals who become  eligible unexpectedly  as a result of  an 
AFBCMR  action.  The  applicant  stated  that  his  commander  took 
eight  days  to  sign  a  letter  of  recommendation  for promotion. 
However, the applicant could have requested rescheduling of  his 
test date.  Therefore, we  believe  applicant was  treated  fairly 
and we  do not believe a direct promotion would  be  appropriate. 
With  regard  to applicant's request to  set-aside the Article  15 
action,  the  commander who  imposed  the Article  15  is  expressly 
permitted  to  consider any  relevant evidence, not  just  evidence 
which would be  admissible before  a court-martial, when deciding 
whether  to  impose  nonjudicial  punishment  under  Article  15. 
Applicant states that he did dispute the validity of the mortgage 
debt  upon  which  the  Article  15  was  founded.  As  stated  by 
AFLSA/JAJM,  they  have  no  indication  that  the  applicant  did 
dispute the validity of the debt at the relevant time or that he 
informed  his  commander  of  such  a  dispute.  In  reviewing  the 
applicant's records, no evidence has been found to indicate any 
such dispute.  We therefore agree with the recommendations of the 
Air Force and adopt the rationale expressed as the basis for our 
decision that the applicant has failed to sustain his burden that 
he has suffered either an error or an injustice.  Therefore, we 
find no compelling basis to recommend granting the relief sought. 

THE  BOARD DETERMINES THAT: 
The  applicant  be  notified  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice; that  the  application was  denied  without  a  personal 
appearance; and  that  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 this application in 
Executive Session on 2 5   August 1998, under the provisions of AFI 
3 6 - 2 6 0 3 .  

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Mrs. Barbara A. Westgate, Panel Chair 
Ms. Olga M. Crerar, Member 
Ms. Patricia D. Vestal, Member 

The following documentary evidence was considered: 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D . 
Exhibit E. 
Exhibit F. 

DD Form 149, dated 12 Aug 97, w/atchs. 
Applicantis Master Personnel Records. 
Letter, AFLSA/JAJM, dated 10 Sep 97. 
Letter, HQ AFPC/DPPPWE, dated 27 Oct 97. 
Letter, HQ AFPC/DPPPWB, dated 3 Nov 97. 
Letter, AFBCMR, dated 24 Nov 97. 

BARBARA A .   WEST GAT^ 
Panel Chair 

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