RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  00-02566

      APPLICANT        COUNSEL:  NONE

                 HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The expiration date of his Unfavorable Information  File  (UIF)  be  changed
from 19 April 2000 to 19 January 2000.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His commander intended to close his UIF on 19 January 2000 so that he  could
test for promotion to staff sergeant.

The applicant states that on 12 July 1999, while deployed to  Saudi  Arabia,
a UIF was established due to punishment received under  Article  15  of  the
Uniform Code of Military Justice (UCMJ).  Upon returning to the  Continental
United States (CONUS) his commander determined  the  nonjudicial  punishment
was unjust and unfair.  As a result,  on  19  October  1999,  his  commander
reduced the punishment to a suspended reduction in grade  and  informed  him
that the UIF would remain in his records for a  minimum  of  six  months  at
which time he would determine if it should be removed from his records.   On
19 January 2000, he was informed that the UIF was  being  removed  from  his
records.  Although  the  UIF  was  electronically  removed  from  the  local
system, it was rejected along the way  to  Randolph  AFB,  Texas.   However,
since the rejection did not appear in the local system, it was assumed  that
it went through.  An automatic entry was made into his UIF which caused  the
close out date to be extended to 18 April 2000.  He  was  informed  that  no
one involved in the reduced punishment decision  knew  the  automatic  entry
was going to be created.  He subsequently  tested  for  promotion  to  staff
sergeant; however, he was later advised that his test would  not  be  scored
because the UIF was not removed until 18 April 2000.  His chain  of  command
felt he had served his punishment and that he should be allowed to  get  his
career back on track, to include testing  for  promotion  to  the  grade  of
staff sergeant.

In support of the appeal, the applicant submits copies  of  the  Article  15
and statements from his commander and first  sergeant  indicating  that  the
creation of an entry automatically into  the  UIF,  upon  the  reduction  in
punishment, was an oversight.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade  of
senior airman.

On 4 May 1999, the applicant reenlisted in  the  Regular  Air  Force  for  a
period of three years.

On 6 July 1999, while assigned Temporary Duty (TDY)  to  Saudi  Arabia,  the
commander of assigned TDY notified him of his intent to  impose  nonjudicial
punishment under Article 15 of the Uniform Code of Military  Justice  (UCMJ)
based on the three violations  of  Article  92  (i.e.,  violating  a  lawful
general  order   by   wrongfully   introducing   and   displaying   hardcore
pornographic and sexually explicit images, failing to obey a lawful  general
regulation by wrongfully using a government-owned computer  for  other  than
official  or  authorized  government   business   by   displaying   hardcore
pornographic and sexually explicit image, and dereliction  of  duty  as  the
Base Information Protection  Monitor  by  utilizing  his  on-duty  hours  to
access  hardcore  pornographic  Internet  sites.   After   consulting   with
counsel, on 9 July 1999, the applicant waived  his  right  to  court-martial
and accepted the nonjudicial punishment.  After considering the  applicant’s
written presentation, on 12 July 1999,  the  commander  determined  that  he
committed one or  more  of  the  alleged  offenses  and  imposed  punishment
consisting of reduction to the grade of airman basic (E-1) with  a  date  of
rank (DOR) of 12 July 1999 and forfeiture  of  $479.00  per  month  for  two
months.  In addition, a  UIF  was  established  and  the  Article  15  filed
therein.  The applicant appealed the punishment;  however,  his  appeal  was
denied.

On 19 October 1999, the applicant’s commander at his permanent duty  station
determined the punishment imposed by the TDY commander should  be  suspended
and remitted without further action if not vacated before 18 April 2000.

Since the suspended reduction until 18 April 2000 was  after  the  Promotion
Eligibility Cutoff Date  (PECD)  for  cycle  00E5,  he  was  ineligible  for
promotion consideration during this cycle.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The Chief, Field Activities Branch,  AFPC/DPSFM,  reviewed  the  application
and states that the UIF data is no  longer  in  the  Personnel  Data  System
(PDS).  In view of this, the applicant’s situation becomes an issue for  the
promotion office.  Therefore, they recommend the  promotions  office  review
the applicable promotion cut-off dates and if warranted, consider  approving
his request.

A complete copy of the evaluation is at Exhibit C.

The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed  the  application
and states that an  individual  undergoing  a  suspended  reduction  imposed
under Article 15 is ineligible for promotion.  If the suspension date of  18
April 2000 is changed to a date before the PECD of 31 March 2000, the  Board
could also direct supplemental promotion consideration for cycle 00E5.

A complete copy of the evaluation is at Exhibit D.

The Chief, Military Justice Division, AFLSA/JACM, reviewed  the  application
and has no objection to the UIF closure date being  made  to  coincide  with
the commander’s attempt to take this action.  However, it is clear from  all
applicable rules that the applicant would still not be eligible to test  for
promotion because he was still under an  Article  15  suspended  punishment.
As such, the only alternative is to set  aside  the  Article  15.   However,
such  action  should  ordinarily  be  exercised  only  when  the   authority
considering the case believes that under all circumstances of the case,  the
punishment has resulted in a  clear  injustice.   Since  the  commander  and
first sergeant agree that the applicant received the appropriate  punishment
for  his  actions,  setting  aside  the  Article  15   is   not   warranted.
Additionally, set aside action should normally  occur  within  a  reasonable
time after the punishment has been executed.  Four months  is  a  reasonable
time in the absence  of  unusual  circumstances;  however,  the  applicant’s
suspension took place over a year ago.  The applicant has  not  related  any
new or additional information, not available at, or near, the time  when  he
received the action, which indicate circumstances warranting  a  set  aside.
Therefore, they recommend the applicant’s request be denied.

A complete copy of the evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the evaluations were forwarded  to  the  applicant  on  2
March and 20 April 2001, for review and response within 30  days.   However,
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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of probable error or injustice to warrant adjusting  the  date  of
the applicant’s suspended reduction to  30  March  2000  and  providing  him
supplemental promotion consideration beginning with  cycle  00E5.   In  this
respect, we note that applicant received an Article 15  while  deployed  TDY
to Saudi  Arabia.   Once  the  applicant  returned  to  his  permanent  duty
station,  his  commander  reviewed  the  Article  15  and   determined   the
punishment was too harsh and suspended the punishment, as pertained  to  the
reduction in grade, until 19 April  2000.   The  commander  has  provided  a
statement  indicating  that  he  intended  to  take  action  to  render  the
applicant eligible for promotion consideration by  the  00E5  cycle.   While
the Board is in no way condoning the applicant’s behavior, in  view  of  the
commander’s  desire  to  make   the   applicant   eligible   for   promotion
consideration  during  cycle  00E5,  we  believe  relief   is   appropriate.
Although the applicant has requested that the expiration date of the UIF  be
changed, such action will not provide him the relief he ultimately  seeks  -
promotion consideration during cycle 00E5.  Since he  was  still  serving  a
suspended reduction on the PECD for cycle 00E5, even if the expiration  date
of the UIF is changed, he is still not eligible for promotion  consideration
during cycle 00E5.  Therefore,  we  recommend  the  date  of  the  suspended
reduction be changed to a date prior to the PECD for cycle 00E5.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that the  nonjudicial  punishment  imposed
on 12 July 1999, as a result of the Article 15, UCMJ, initiated  on  6  July
1999, reducing him from senior airman  (E-4)  to  airman  basic  (E-1),  was
suspended until 30 March 2000, rather than 19 April 2000, at which time  the
suspension was remitted, and all rights, privileges, and property  of  which
he may have been deprived were restored.

It is further recommended that he  be  provided  supplemental  consideration
for promotion to the grade of staff  sergeant  for  all  appropriate  cycles
beginning with cycle 00E5.

If AFPC discovers any adverse factors during or subsequent  to  supplemental
consideration that are separate and  apart,  and  unrelated  to  the  issues
involved in  this  application,  that  would  have  rendered  the  applicant
ineligible for the  promotion,  such  information  will  be  documented  and
presented to the  board  for  a  final  determination  on  the  individual's
qualification for the promotion.

If  supplemental  promotion  consideration  results  in  the  selection  for
promotion to the higher grade, immediately after such promotion the  records
shall be corrected to show that he was promoted to the higher grade  on  the
date of rank established by  the  supplemental  promotion  and  that  he  is
entitled to all pay, allowances, and benefits  of  such  grade  as  of  that
date.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 13 June 2001, under the provisions of AFI 36-2603:

                       Mr. Vaughn E. Schlunz, Panel Chair
                       Mr. Michael V. Barbino, Member
                       Mr. Philip Sheuerman, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 7 Sep 00, w/atchs.
     Exhibit B.  Applicant’s Master Personnel Record.
     Exhibit C.  Letter, AFPC/DPSFM, dated 7 Nov 00.
     Exhibit D.  Letter, AFPC/DPPPWB, dated 16 Nov 00, w/atchs.
     Exhibit E.  Letter, AFLSA/JAJM, dated 9 Feb 01.
     Exhibit F.  Letter, SAF/MIBR, dated 2 Mar 01.
     Exhibit G.  Letter, AFBCMR, dated 20 Apr 01.




                                  VAUGHN E. SCHLUNZ
                                  Panel Chair
AFBCMR 00-02566




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 APPLICANT, be corrected to show that the nonjudicial punishment
imposed on 12 July 1999, as a result of the Article 15, UCMJ, initiated on
6 July 1999, reducing him from senior airman (E-4) to airman basic (E-1),
was suspended until 30 March 2000, rather than 19 April 2000, at which time
the suspension was remitted, and all rights, privileges, and property of
which he may have been deprived were restored.

      It is further directed that he be provided supplemental consideration
for promotion to the grade of staff sergeant for all appropriate cycles
beginning with cycle 00E5.

      If AFPC discovers any adverse factors during or subsequent to
supplemental consideration that are separate and apart, and unrelated to
the issues involved in this application, that would have rendered the
applicant ineligible for the promotion, such information will be documented
and presented to the board for a final determination on the individual's
qualification for the promotion.

      If supplemental promotion consideration results in the selection for
promotion to the higher grade, immediately after such promotion the records
shall be corrected to show that he was promoted to the higher grade on the
date of rank established by the supplemental promotion and that he is
entitled to all pay, allowances, and benefits of such grade as of that
date.









JOE G. LINEBERGER

Director

Air Force Review Boards Agency