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