RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 00-01042
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
1. He be promoted to the grade of staff sergeant (E-5).
2. The last Enlisted Performance Report (EPR) he received be upgraded
from a “3” to a “5.”
3. The Article 15 imposed on 9 November 1995, be expunged from his
records.
APPLICANT CONTENDS THAT:
He was unaware of the change in law that raised the legal drinking age 11
days prior to the event which led to the Article 15. In addition, he would
like to get back on the Honor Guard and is unable to do so with the Article
15 on his record.
The applicant states that he was due to test for promotion to staff
sergeant the day prior to his discharge; however, a false allegation was
made against him and he was denied an opportunity to test for promotion.
Given his four-year absence from active duty, it will be harder for him to
be promoted with individuals that have four or more years of active duty
and who are performing in a specialty in which they will test.
The applicant also states the rater of the contested EPR told him he
initially wrote the EPR as a “5” and it was returned. He then rewrote the
EPR as a “4” and it was again returned. The rater told him the EPR was
ultimately approved as a “3.” The only reason he received a “3” was
because he was being discharged. If he received a “4” or “5” they would
not have been able to discharge him.
The applicant’s complete submission is attached at Exhibit A.
STATEMENT OF FACTS:
The applicant is a former Air Force member who received a general discharge
on 22 April 1996 under the provisions of AFI 36-3208, paragraph 5.49
(Misconduct - Minor Disciplinary Infractions).
On 29 April 1998, the Air Force Discharge Review Board (AFDRB) upgraded the
applicant’s discharge to honorable, changed the reason for his discharge to
Secretarial Authority, and changed his Reenlistment Eligibility (RE) code
to “2C.”
On 25 February 1999, the AFBCMR denied the applicant’s request that his
involuntary discharge be declared void; he be given all back pay for
fulfillment of his contract; his former grade of staff sergeant (E-5) be
reinstated; his RE code be upgraded to 1J;” and he be reinstated to active
duty. However, the Board found sufficient evidence of error or injustice
to warrant upgrading his RE code to “3K.”
The Board reconsidered the application on 28 July 1999 and found sufficient
evidence to warrant expunging the discharge proceedings from the
applicant’s records; releasing him from active duty on 13 December 1996 by
reason of Completion of Required Active Service; and changing his RE code
to “1J,” affording him the opportunity to reenlist. However, the Board
found no basis upon which to recommend his promotion to the grade of staff
sergeant and reinstatement to active duty.
AIR FORCE EVALUATIONS:
The Chief, Military Justice Division, AFLSA/JAJM, states that ignorance of
the law, including general orders or regulations, ordinarily is not a
defense. Thus, applicant’s contention that he was unaware of the change in
the law would not have been a defense to the crime he was charged with
under the Article 15 even if he had raised it at the time the Article 15
was administered. In addition, in context of an Article 15, the failure to
charge a violation of the correct paragraph of the Air Force Instruction
(AFI) cited should not defeat the Article 15 since the action remains valid
even if the specification fails to include all the elements of an offense,
provided the alleged offender is reasonably informed of the nature of the
alleged misconduct.
AFLSA/JAJM also states that whether applicant failed to obey a lawful
general regulation is not at issue. The only substantive issue for the
Board is whether the applicant should have been issued an Article 15 at
all. While there are extenuating circumstances which would have militated
against administration of the Article 15, the applicant failed to present
them, either orally, or in writing, to the commander at the time, or to
raise them on appeal. The applicant willingly chose to accept the Article
15, rather than to present his case to a court-martial. Set aside is only
appropriate when, under all the circumstances of the case, the punishment
has resulted in clear injustice. Therefore, they recommend the untimely
request by applicant be denied.
A complete copy of the Air Force evaluation is attached at Exhibit C.
The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed the application
and states that present Air Force policy does not allow for an automatic
promotion as the applicant is requesting. The first promotion cycle he
would have been eligible for consideration to the grade of staff sergeant
based on his date of rank (DOR) was cycle 96E5. However, based on the
Article 15, he was ineligible for consideration and did not test for
promotion. As such, even if the Board decides to remove the Article 15,
the applicant cannot be considered for supplemental promotion since he
never tested. The Board removed the applicant’s administrative involuntary
discharge and changed his reenlistment status which had made him ineligible
for promotion for cycle 96E5, but did not remove the Article 15.
Therefore, they recommend applicant’s request for promotion to the grade of
staff sergeant be denied.
Concerning the EPR the applicant requests to be upgraded, AFPC/DPPPWB
states the report was not found and is not a matter of record. The last
EPR in the record is dated 15 August 1995 with an overall rating of “5.”
A complete copy of the Air Force evaluation is attached at Exhibit D.
The Acting Chief, BCMR Appeals and SSB Section, AFPC/DPPPAB, reviewed the
application and states that upon review of applicant’s record, they are
unable to locate an EPR with a “3” rating. Furthermore, the applicant has
not provided a copy of the contested report. In order to challenge an
evaluation report, that report must be a matter of official record. Since
the EPR is not a part of the applicant’s record group, the request to void
it is moot. Therefore, there is no action required until the EPR has been
made a matter of official record.
A complete copy of the Air Force evaluation is attached at Exhibit E.
APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:
In a letter, dated 26 June 2000, the applicant states that only after the
squadron found out that he was going to test for promotion was he declined
from promotion testing. He signed a “3” EPR only three days prior to his
discharge and did not receive a copy. At the time of the incident, he had
just turned 21 years of age and was not a drinker. They had to check and
the drinking age had just changed from 18 to 21 years of age. In addition,
the incident took place on or about 26 August 1995 and he did not receive
the Article 15 until November 1995, even though he admitted the same night
that he had bought the alcohol.
The applicant also states that on the night of the incident, he declined
the rights to an attorney because he was charged only with rape and
forcible sodomy. He never fought the Article 15 because he was told that
he would have to go through the same kind of investigation that he went
through with the rape and forcible sodomy charges. Prior to his discharge,
his defense counsel told him the items used as the basis for discharge
would not stand, and that he had nothing to worry about. However, he was
discharged and barred from the base with no resources.
The applicant’s letter is attached at Exhibit F.
Complete copies of the Air Force evaluations were forwarded to the
applicant on 30 June 2000 for review and response within 30 days. However,
as of this date, no response from the applicant has been received by this
office.
In support of the appeal, the applicant’s mother has provided her numerous
personal statements and copies of newspaper articles regarding the change
in the drinking age which are attached at Exhibits G and I.
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was not timely filed; however, it is in the interest
of justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice. After thoroughly reviewing the
evidence of record and noting the applicant’s contentions, we are not
persuaded that he has been the victim of an error or injustice. In this
respect, we note the following:
a. The first promotion cycle the applicant would have been
eligible for promotion consideration to the grade of staff sergeant was
cycle 96E5. However, based on the Article 15, he was ineligible for
consideration and did not test for promotion. While the Board previously
voided his administrative discharge and changed his reenlistment status
which were also factors that rendered him ineligible for promotion for
cycle 96E5, he still remains ineligible for promotion consideration based
on the Article 15. Furthermore, even if the Article 15 were removed from
his records, we find no evidence that he would have been selected for
promotion.
b. Although the applicant requests that his final Enlisted
Performance Report (EPR) be upgraded from a “3” to a “5,” the report is not
a matter of record. In this respect, we note the last EPR in his record is
dated 15 August 1995 with an overall rating of “5.” In view of this, this
portion of his application is moot.
c. Evidence has not been presented which would lead us to believe
that the nonjudicial punishment, initiated on 4 November 1995 and imposed
on 9 November 1995 was improper. In cases of this nature, we are not
inclined to disturb the judgments of commanding officers absent a strong
showing of abuse of discretionary authority. We have no such showing here.
The evidence indicates that, during the processing of this Article 15
action, the applicant was offered every right to which he was entitled. He
was represented by counsel, waived his right to demand trial by court-
martial, and chose not to submit written matters for review by the
commander. The commander determined the applicant had committed “one or
more of the offenses alleged” and imposed punishment on the applicant which
the applicant did not appeal. The applicant has not provided any evidence
showing that the imposing commander or the reviewing authority abused their
discretionary authority, that his substantial rights were violated during
the processing of the Article 15 punishment, or that the punishment
exceeded the maximum authorized by the UCMJ. Furthermore, we agree with
the comments of the Chief, Military Justice Division, that applicant’s
contention that he was unaware of the change in the law would not have been
a defense to the crime he was charged with under the Article 15 even if he
had raised it at the time the Article 15 was administered since ignorance
of the law is not a defense. Therefore, in the absence of evidence to the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.
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 1 November 2000, under the provisions of AFI 36-2603:
Mr. Thomas S. Markiewicz, Panel Chair
Mr. Roscoe Hinton, Jr., Member
Mr. E. David Hoard, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 15 May 00, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLSA/JAJM, dated 20 May 00.
Exhibit D. Letter, AFPC/DPPPWB, dated 2 Jun 00, w/atch.
Exhibit E. Letter, AFPC/DPPPAB, dated 13 Jun 00.
Exhibit F. Letter, Applicant, dated 26 Jun 00.
Exhibit G. Letter, Applicant’s Mother, dated 28 Jun 00,
w/atchs.
Exhibit H. Letter, SAF/MIBR, dated 30 Jun 00.
Exhibit I. Letters, Applicant’s Mother, dated 16 Jul 00,
28 Jul 00, 23 Aug 00, and 10 Oct 00, w/atchs.
THOMAS S. MARKIEWICZ
Panel Chair
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: 00-03277 INDEX CODE 126.02 131.09 129.04 COUNSEL: None HEARING DESIRED: Yes _________________________________________________________________ APPLICANT REQUESTS THAT: He be reinstated to the grade of E5/staff sergeant (SSgt) and promoted to E6/technical sergeant (TSgt) by setting aside the punishment imposed on him by Article 15, Uniform Code of Military Justice (UCMJ), dated 31 Oct 95,...
The Air Force Instruction that prohibits the use of hempseed oil came into effect in January 1999. In support of his appeal, the applicant provided a personal statement, AF Form 1359, Report of Result of Trial, the contested EPR closing 30 September 1999, Performance Feedback Worksheet, dated 21 June 1999, and a Memo, Response to Referral EPR, dated 12 January 2000. In view of the above, the majority of the Board recommends the contested EPR be declared void and removed from his...
AF | BCMR | CY2005 | BC-2005-02568
_________________________________________________________________ AIR FORCE EVALUATION: AFLSA/JAJM recommends the application be denied. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 6 February 2003, competent authority set aside so much of the nonjudicial punishment under the provision of Article 15, Uniform Code of Military...
After the first Article 15 was imposed, the commander initiated separation proceedings. The finding of the discharge board is not evidence in and of itself. A complete copy of this evaluation is appended at Exhibit C. The Enlisted Promotion and Military Testing Branch, HQ AFPC/DPPPWB, stated that the first time the EPR closing 19 April 1996 would have been considered in the promotion process was cycle 96E6 to technical sergeant (E-6) (promotions effective August 1996 - July 1997).
AF | BCMR | CY1998 | BC-1997-03305
After the first Article 15 was imposed, the commander initiated separation proceedings. The finding of the discharge board is not evidence in and of itself. A complete copy of this evaluation is appended at Exhibit C. The Enlisted Promotion and Military Testing Branch, HQ AFPC/DPPPWB, stated that the first time the EPR closing 19 April 1996 would have been considered in the promotion process was cycle 96E6 to technical sergeant (E-6) (promotions effective August 1996 - July 1997).
AF | BCMR | CY2003 | BC-2002-02534
She prepared an AF Form 3212, Record of Supplementary Action under Article 15, UCMJ, on 17 May 02, and provided it to the legal office. In his commander's response she states that she had all of the facts in front of her for the first time and was told by the wing commander that she could let him test for staff sergeant. However, the legal office was incorrect in that determinations of "unusual circumstances" or "the best interests of the Air Force" are made by commanders, not lawyers.
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: 02-02126 INDEX CODE 126.02 126.04 111.02 111.05 COUNSEL: None HEARING DESIRED: No _________________________________________________________________ APPLICANT REQUESTS THAT: The Article 15 imposed on 11 May 00 be voided, his record be expunged, and leave be restored to his account. According to the personnel data system, his Enlisted Performance Reports (EPRs) from 1995 through 24 Oct...
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. 3 policy, the results of this test were use in his promotion consideration for the 95A7 cycle as well as the 94A7 and 93A7 cycles. 5 Mrs....
AF | BCMR | CY2003 | BC-2003-01543
His referral Enlisted Performance Report (EPR) closing 30 Jan 03, be removed from his records. We note that regardless of his commander's action, the court-martial conviction and referral EPR rendered him ineligible for promotion. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the close-out date of his AF Form 910, Enlisted...
AF | BCMR | CY2006 | BC-2003-00161
Records provided by the applicant reflect that he filed an Inspector General (IG) complaint alleging he was the victim of unfair treatment by his squadron commander in the form of disproportionate punishment by receiving an LOR; denial of promotion to master sergeant; and a referral Enlisted Performance Report (EPR) for mismanagement of the Nutritional Medicine Section. The applicant was notified of his commander’s recommendation and that a general discharge was being recommended. On 3...