AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-03471 
COUNSEL:  NONE 
HEARING DESIRED:  NO 

APPLICANT REO UESTS THAT: 
1.  The Letter of  Reprimand  (LOR) ,  dated  12 DeCember  1997,  and 
the Unfavorable  Information File  (UIF) ,  dated  12 December 1997, 
be declared void and removed from his records. 
2.  His promotion to the grade of  staff  sergeant  (E-5), during 
the  96E5  promotion  cycle,  be  reinstated  with  the  appropriate 
promotion sequence number of 8478. 

APPLICANT CONTENDS THAT: 
On 22 September 1997, he was found not guilty of Driving Under 
the  Influence  (DUI) in Sarpy County, Nebraska.  He  states that 
since his Article 15 was subsequently set aside, he is requesting 
that the Letter of Reprimand and a UIF, that was established when 
the Article 15 was set aside, be removed from his records. 
Applicant's submission with  regard to the Article  15 action  is 
attached at Exhibit A .  
Applicant's submission with regard to the LOR, UIF and promotion 
issues, is attached at Exhibit A - 1 .  

STATEMENT OF FACTS: 
Applicant  reenlisted  in  the  Regular  Air  Force  on  23 September 
1994 for a period of four (4) years. 
On  19 May  1997,  the applicant's commander notified him  that he 
was  considering  whether  he  (commander)  should  punish  the 
applicant  under  Article  15,  Uniform  Code  of  Military  Justice 
(UCMJ) .  The alleged misconduct consisted of:  Applicant did, at 
or near Bellevue, Nebraska, on or about 27 April 1997, operate a 
motor vehicle while drunk.  On 2 June 1997, applicant did consult 
a lawyer, waived his right to court-martial, did make a personal 
appearance and submitted a written presentation.  The commander 
considered  the  matters  presented  in  defense,  mitigation,  or 

extenuation, and found that the applicant did commit one or more 
of the offenses alleged.  On 4 June 1997,  the commander imposed 
punishment on the applicant that consisted of 15 days extra duty 
and forfeiture of $150 pay per month for 2 months  (the forfeiture 
of  pay  was  suspended  until  3  December  1997  which  would  be 
remitted  without  further  action  unless  sooner  vacated) . 
The 
applicant acknowledged receipt of the Article 15 action on 4 June 
1997.  Applicant appealed the Article 15 action on 9 June 1997, 
however, the appeal was denied. 
On 22 May 1997, three days after applicant received notification 
of the Article 15 action, a criminal complaint was issued against 
the applicant from the  county court of  Sarpy County, Nebraska. 
The complaint included four counts.  Count 1:  Alleged applicant 
drove a vehicle under the influence of alcohol on 27 April 1997. 
Count 2:  Alleged applicant drove his vehicle to the left of the 
center line of the roadway on the same date.  Count 3 :   Alleged 
that applicant refused to submit to a preliminary breath test in 
violation  of  Nebraska  law.  Count  4:  Alleged  that  applicant 
refused to  submit  to a chemical test  in violation  of  Nebraska 
law. 
Trial  on  the  charges  was  held  on  22  September  1997. 
Applicant was found Not  Guilty of Counts 1 and 2 and Guilty of 
Counts 3  and 4 .   An  unspecified sentence was imposed. 
On  6  June  1997,  applicant's  Squadron  Commander  notified  the 
applicant  of  his  decision  to  non-recommend  the  applicant  for 
promotion to the rank of  staff sergeant and  remove applicant s 
name  from  the  9635  promotion  list.  The  reason  for  this  was 
applicant's recent DWI. 
Prior to the drunk driv 
ing incident, applicant's Wing  Commander 
had instituted a policy 
of offering Air Force members nonjudicial 
punishment for off-base 
DUIs.  The policy apparently grew out of 
ion that  sarpy County had  a practice of 
the Air  Force's percept 
offering first time DUI 
of fenders participation in a "diversion" 
program wherein they could avoid an appearance before a judge and 
a  conviction  upon  payment  of  a  fee  and  attending  alcohol 
awareness classes. 
The applicant's Area Defense Counsel  (ADC) submitted a memorandum 
on 6 November 1997 on the applicant's behalf, citing an Air Force 
Legal  Services  Agency  (AFLSA/JAJM)  policy  letter  regarding 
nonjudicial  punishment  for off-base  DUIs.  Their  position  was 
that if held accountable by a civilian court and acquitted, then 
an Article 15 based on the same offense should be set aside. 
The Article 15 was set aside, per AF Form 3212, dated 12 December 
1997.  The applicant received a Letter of Reprimand  (LOR) , dated 
12 December 1997,  the same day, for being  arrested for DUI and 
refusing  to  submit  to  a  breathalyzer  test  to  identify  the 
presence of alcohol in the applicant's system.  The applicant's 
commander established a UIF. 

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Information  in  the  Personnel  Data  System  (PDS) reflects  that 
applicant had a reenlistment eligibility  (RE) code of 1J.  This 
RE code reflects Ileligible elects separation or discharge.  The 
PDS  also  reflects  that  applicant  applied  for  separation  on 
27 January 1998. 
Applicant  was  honorably  released  from  active duty  on  10 March 
1998  under  the  provisions  of  AFI  36-3208  (Miscellaneous 
Reasons/General Reasons) and transferred to the Air Force Reserve 
with a Reserve Obligation Termination Date of 10 March 1999.  He 
served 6 years, 11 months and 3 days of active military service. 

AIR FORCE EVALUATION: 
The Associate  Chief, Military Justice Division, Air  Force Legal 
Services  Agency,  AFLSA/JAJM,  stated,  in  summary,  that  the 
applicant's  contention,  regarding  the  Article  15  action,  has 
merit.  The Rule for Courts-Martial 201(d) ( 3 ) ,   Manual for Courts- 
Martial provides, IIAlthough it is constitutionally permissible to 
try a person by court-martial and by a State court for the same 
act, as a matter of policy a person who is pending trial or has 
been  tried by  a State court  should not  ordinarily be  tried by 
court-martial  for  the  same  act.  The  AFLSA/JAJM's memoramdum, 
dated 27 October 1997, expressed its opinion that the same policy 
considerations apply to actions under Article 15 of the UCMJ.  In 
this case, no policy of the Air Force would be served by allowing 
the Article 15 to stand as applicant was ultimately tried before 
a civilian judge on the DUI charge and was, in fact, convicted of 
two charges that closely relate to the DUI charge.  The available 
records indicate that the State did dispose of the DUI charge on 
the merits and applicant was made to suffer the consequences of 
his actions through his convictions on the refusal charges.  The 
Associate  Chief  in  this  evaluation  concludes  that  Air  Force 
policy and equity require a removal of  the Article  15 from the 
applicant's records. 
A copy of the Air Force evaluation is attached at Exhibit C. 
The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
submitted a supplemental evaluation regarding the Article 15.  He 
states that applicant submits a supplemental request in which he 
attaches an AF Form 3212 showing the Article 15 was set aside on 
12 December  1997.  That  action  also  set  aside  the  punishment 
imposed on 4 June 1997.  Therefore, the request for the AFBCMR to 
set  aside  the  Article  15  punishment  is  moot.  The  remaining 
portion of the applicant's supplemental application pertains to a 
Letter  of  Reprimand  (LOR) and  an Unfavorable  Information File 
(UIF) .  These are administrative actions outside the purview of 
the Military  Justice Division  that  can be  better  addressed by 
Headquarters Air Force Personnel Center (HQ AFPC). 
A copy of the Air Force evaluation is attached at Exhibit D. 

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The  Chief,  Commander's  Programs Branch,  HQ  AFPC/DPSFC,  states 
that  the  use  of  the  LOR  by  commanders  and  supervisors  is  an 
exercise of supervisory authority and responsibility.  The LOR is 
used  to  reprove,  correct  and  instruct  subordinates who  depart 
from acceptable norms of conduct or behavior, on or off duty, and 
helps  maintain  established  Air  Force  standards  of  conduct  or 
behavior.  The LOR is optional for file in the UIF for enlisted 
personnel. 
UIFs may be used by commanders to form the basis for a variety of 
adverse actions as they relate to the member's conduct, bearing, 
behavior, integrity and  so forth, or less than acceptable duty 
performance.  Commanders have  the option to remove an enlisted 
member's UIF early.  There is no policy guidance on receiving an 
LOR  for  the  same  (or closely  related)  offense  managed  by  the 
civilian  court  system.  Air  Force  Instruction  36-2907,  which 
governs UIFs does not prohibit what the applicant appears to view 
as double jeopardy.  They recommend the 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 2 March 1998 for review and response within 30 days. 
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.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the  existence of  probable  error  or  injustice.  We 
have thoroughly reviewed the evidence of record and applicant's 
submission.  His contentions are duly noted; however, we do not 
find  these  uncorroborated  assertions,  in  and  by  themselves, 
sufficiently persuasive to override the rationale provided by the 
Air  Force.  The  applicant  is  requesting  that  the  Letter  of 
Reprimand  (LOR) and  Unfavorable  Information  File  (UIF) ,  dated 
12 December 1997, be declared void and removed from his records. 
However, we note that by  regulation, at  the time an individual 
separates from the Air Force, LORs and UIFs are removed from the 
record  and  destroyed.  Therefore, since  the  LOR  and  UIF  were 
destroyed when the applicant separated, this is a moot issue. 

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4,  With  regard  to  the  promotion  issue,  we  note  that  the 
commander's  reason  for  non-recommending  the  applicant  for 
promotion  was  because  of  the  DWI  and  Article  15  action.  It 
appears that when the applicant was acquitted of the DWI charge 
by the civilian court, a request was made to the commander to set 
aside the Article 15 action.  The commander did subsequently set 
aside the Article  15 action; however, it appears that he  still 
believed  that  applicant's  conduct  was  unacceptable  and 
administered  an LOR  and  established the UIF.  At  the  time  the 
applicant's  commander  set  aside  the  Article  15, the  applicant 
could have submitted additional information or new evidence and 
requested that his promotion be reinstated.  The commander could 
have  then  considered  reinstatement  of  the  promotion  based  on 
applicant's submission of additional information or new evidence. 
However, we do not find any evidence of record that the applicant 
made a request for reinstatement or submitted any documentation 
in support of a promotion reinstatement.  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 5 November 1998, under the provisions of AFI 
36-2603. 

Mr. David C, Van Gasbeck, Panel Chair 
Mr. Edward H. Parker, Member 
Ms. Patricia A. Vestal, Member 

The following documentary evidence was considered: 

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. 

Exhibit A.  DD Form 149, dated 4 Nov  97, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFLSA/JAJM,  dated 21 Jan 98. 
Exhibit D.  Letter, AFLSA/JAJM,  dated 9 Feb 98. 
Exhibit E.  Letter, HQ AFPC/DPSFC, dated 27 Feb 98. 
Exhibit F.  Letter, AFBCMR, dated 2 Mar 98. 

GASBECK  \ 

P-ane 

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