RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 98-03230
INDEX CODE: 126.00,128.00,131.00
XXXXXXXXXXXXXXXXXXX COUNSEL: JOSEPH W. KASTL
XXXXXXXXXXX HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. The nonjudicial punishment pursuant to the Article 15 he received on 2
October 1995 be set aside.
2. He be reinstated in the Air Force with back pay.
3. He be promoted to the grade of master sergeant.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Counsel for the applicant has provided a 14-page brief in support of the
application. Counsel states that the applicant received the contested
Article 15 because of a vindictive and jealous supervisor and that the
Article 15 resulted from a clear-cut abuse of power. Counsel also states
that the applicant was subject to his supervisor's vicious overreaction
when a personality conflict developed between the applicant and his
supervisor.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application, extracted from the
applicant's military records, are contained in the letters prepared by the
appropriate offices of the Air Force. Accordingly, there is no need to
recite these facts in this Record of Proceedings.
A copy of a Summary Report of Inquiry prepared by HQ PACAF/JAC regarding
applicant’s allegations that Senior Master Sergeant K is alleged to have
caused applicant to receive punishment in forms of a letter of admonishment
(LOA) and an Article 15 is attached at Exhibit G.
_________________________________________________________________
AIR FORCE EVALUATION:
The Deputy Chief, Military Justice Division, Air Force Legal Services
Agency, AFLSA/JAJM, reviewed this application and states that the applicant
has offered no substantive support for any of his allegations, reprisal, or
otherwise. The applicant's file indicates that he received all procedural
and substantive rights due him. Additionally, the evidence was sufficient
to support the imposition of an Article 15 punishment. Consequently, no
clear injustice exists that would necessitate setting aside the Article 15.
A complete copy of the evaluation, with attachments, is attached at Exhibit
C.
The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, also reviewed this
application and states that present Air Force policy does not allow for an
automatic promotion as the applicant is requesting. They defer to the
recommendation of AFLSA/JAJM. However, should the Board set aside the
reduction, his effective date and date of rank to technical sergeant was 1
September 1994. In addition, since the applicant never served in the grade
of master sergeant there is no basis or valid reason to authorize a
promotion to this grade.
A complete copy of their evaluation is attached at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant reviewed the Air Force evaluations and provided a response, which
is attached at Exhibit F.
On several occasions applicant requested additional time to prepare a
further response to the evaluations.
_________________________________________________________________
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 warranting the Article 15 he
received on 2 October 1995, be set aside. After reviewing the evidence of
record, the Board is not persuaded that the contested Article 15 was
received either because of a vindictive and jealous supervisor or for
reprisal of submitting an IG complaint. In fact, we note that the
contested Article 15 was issued 18 days before he filed the IG complaint.
While applicant’s contentions are duly noted, we do not find these
uncorroborated assertions, in and by themselves, sufficiently persuasive to
override the rationale provided by the Air Force. 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. In view of
the above and absent persuasive evidence to the contrary, we find no
compelling basis to recommend granting relief to void the Article 15.
4. Notwithstanding the above, we do believe that the applicant should be
permitted to retire in the grade of technical sergeant. While we conclude
that the Article 15 and the punishment issued against the applicant were
consistent with the prevailing regulation, we believe that the vacation of
the suspended reduction was unduly harsh. In this respect, we note that
the applicant was within one month of completion of the suspended
reduction, and that the reason for the vacation action was due to his
failure to attend a scheduled anger management class. The reason for his
failing to attend the class was due to his participation in a squadron self-
help project. In view of the circumstances surrounding his failure to
attend the scheduled class and in view of the fact that the applicant was
within one month from having served the suspended reduction, we believe
that some form of relief is warranted. Therefore, we recommend he be
promoted to the grade of technical sergeant effective 31 October 1997 and
retired in that grade effective l November 1997.
5. The applicant's case is adequately documented and it has not been
shown that a personal appearance with or without counsel will materially
add to our understanding of the issues involved. Therefore, the request
for a hearing is not favorably considered.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating
to APPLICANT, be corrected to show that:
a. He was promoted to the grade to technical sergeant effective
and with a date of rank of 31 October 1997.
b. On 1 November 1997, he was retired for length of service in
the grade of technical sergeant.
_________________________________________________________________
The following members of the Board considered this application in Executive
Session on 15 February 2000, under the provisions of AFI 36-2603:
Terry A. Yonkers, Panel Chair
Mr. William H. Anderson, Member
Mr. Edward H. Parker, Member
All members voted to correct the records, as recommended. The following
documentary evidence was considered:
Exhibit A. DD Form 149, dated 1 Oct 98, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLSA/JAJM, dated 17 Mar 99, w/atchs.
Exhibit D. Letter, AFPC/DPPPWB, dated 2 Apr 99.
Exhibit E. Letter, SAF/MIBR, dated 28 Apr 99.
Exhibit F. Letter, Applicant, undated.
Exhibit G. Inspector General Report
TERRY A. YONKERS
Panel Chair
AFBCMR 98-03230
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:
The pertinent military records of the Department of the Air Force
relating to XXXXXXXXX. XXXXXXXX XXXXXXXXXXX, be corrected to show:
a. He was promoted to the grade to technical sergeant
effective and with a date of rank of 31 October 1997.
b. On 1 November 1997, he was retired for length of
service in the grade of technical sergeant.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 01-01938 INDEX CODE 126.04 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: The Article 15 imposed on 15 November 2000 for violation of Articles 92 and 107, (disobeying a lawful order and making false official statements) of the Uniform Code of Military Justice (UCMJ) be expunged from his record. On 15 November...
However, if the Board voids the Article 15 as requested or removes the reduction as part of the punishment, the effective date and date of rank would revert to the original date of 1 July 1992. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 21 December 1998, copies of the Air Force evaluations were forwarded to applicant for review and response within 30 days. ...
In support of his request the applicant has submitted a personal statement, several memorandums from his counsel in support of his efforts to appeal and set aside the Article 15 action, an excerpt from the Manual for Courts- Martial (MCM), his Article 15 written presentation, eyewitness statements, and an AF Form 3070, Record of Nonjudicial Punishment Proceedings. As of this date, this office has received no response. The applicant has not provided any evidence showing that the imposing...
Given that both the commander and first sergeant were present, significant deference should be given to the commander’s determination that the applicant’s actions and words were disrespectful. If the applicant is returned to active duty without a break in service, the referral EPR removed from his records, the two Article 15s set aside, all derogatory data/information expunged from his records (UIF, Control Roster, LOR), providing the AFBCMR directs supplemental promotion consideration, he...
AF | BCMR | CY2002 | BC-2002-03509
The applicant acknowledges in her application, as well as her responses to the Article 15, that she told her supervisor that she was having nasal surgery that, at the time, she knew was false. They provide information regarding the applicant’s original date of rank as a staff sergeant should the Board want to grant the relief requested. To date, a response has not been received.
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 99-01296 INDEX CODE: 110.00 xxxxxxxxxxxxxxxx COUNSEL: NONE xxxxxxxxxxx HEARING DESIRED: NO APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to an honorable discharge. STATEMENT OF FACTS: Pursuant to the Board’s request, the Federal Bureau of Investigation, Washington, D.C., provided an investigative report which is attached at Exhibit C. The relevant facts pertaining...
AF | BCMR | CY2005 | BC-2005-02266
Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 15 August 2003, competent authority set aside so much of the nonjudicial punishment imposed on 16 May 2003 under Article 15, UCMJ, pertaining...
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 02-01094 INDEX NUMBER: 131.00; 129.04 XXXXXXXXXX COUNSEL: Fred L. Bauer XXX-XX-XXXX HEARING DESIRED: Yes ________________________________________________________________ APPLICANT REQUESTS THAT: The Officer Grade Determination (OGD) that required him to retire in the grade of captain be overturned, his retirement grade be corrected to reflect the grade of major, and he be paid all back...
AF | BCMR | CY2004 | BC-2003-03080
The applicant's EPR profile is as follows: PERIOD ENDING PROMOTION RECOMMENDATION 7 May 03 5 7 May 02 2 - Contested Report 4 Apr 01 5 4 Apr 00 5 4 Apr 99 5 4 Apr 98 5 4 Apr 97 4 _________________________________________________________________ AIR FORCE EVALUATION: AFLSA/JAJM recommends denial. Congress and the Secretary have designated the commander and the appeal authority the responsibility for determining the appropriateness of an otherwise lawful punishment. THOMAS S....
On 22 July 1999, the applicant’s commander imposed nonjudicial punishment on the applicant, who was then serving in the grade of technical sergeant, for making a false official statement. The BCMR Medical Consultant is of the opinion that there is sufficient evidence to conclude that the applicant's medical condition was a direct and substantial causative factor for the behavior that lead to his nonjudicial punishment. The BCMR Medical Consultant evaluation is at Exhibit C. AFLSA/JAJM...