RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-00224
            INDEX CODES:  111.02, 126.04

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15, imposed on 16 Nov 98,  be
set  aside  and  removed  from  his  records,  and  that  all  rights,
privileges, and benefits taken from him because of the Article  15  be
restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 was in error and unjust because  under  the  preemption
doctrine the alleged offense was not lawful.

In support of his appeal, the applicant provided copies of the Article
15, Armed Forces Traffic Ticket, Blood Alcohol Testing Record, and  an
extract from The Reporter, Office of the Judge Advocate General.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The  applicant  was  honorably  discharged  on  6  May  01  under  the
provisions of AFI 36-3208 (Completion of Required Active Service).  He
was credited with 4 years of active duty service.

Applicant's EPR profile follows:

      PERIOD ENDING    EVALUATION

       6 Jan 99        4 (Referral)
       6 Jan 00        4
      10 Aug 00        3 (Referral)

The remaining  relevant  facts  pertaining  to  this  application  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.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and noted that on 22  Oct  98,  the  applicant  was  notified  of  his
commander’s intent to impose nonjudicial  punishment  for  an  alleged
violation of Article 134, Uniform Code  of  Military  Justice  (UCMJ).
Specifically, the applicant was accused of driving while  the  alcohol
concentration  in  his  blood  was  .08  grams  of  alcohol  per   100
milliliters of blood, a violation of California Vehicle Code 23152(b),
as assimilated by Title 18 United States  Code  (U.S.C.)  Section  13.
After consulting counsel, the applicant waived  his  right  to  demand
trial by court-martial and accepted nonjudicial punishment.  He made a
personal appearance before  his  commander  and  submitted  a  written
presentation.  On 16 Nov 98, the commander found the applicant  guilty
and imposed punishment of a reduction to the  grade  of  airman  (from
airman first class) and forfeiture of $250.00 pay per  month  for  two
months.  The applicant did not appeal the nonjudicial punishment.

According to JAJM, Article 134, UCMJ, creates three different types of
crimes, commonly referred to as clause 1, 2, and 3 offenses.  Clause 3
offenses involve non-capital crimes or offenses that  violate  Federal
law, including law made applicable through  the  Federal  Assimilative
Crimes Act.  The use of Article 134, UCMJ,  to  charge  misconduct  is
limited by the preemption doctrine. The preemption doctrine states  if
any conduct charged under Article  134,  UCMJ,  is  specifically  made
punishable by another article of the code, it must  be  charged  as  a
violation of that article.  This doctrine prohibits the application of
Article 134, UCMJ, to conduct  covered  by  Articles  80  through  132
because Congress has already set the  minimum  requirements  for  such
offenses in the enumerated  articles.

JAJM indicated that drunk driving is covered  by  Article  111,  UCMJ.
Congress established offenses under Article 111 to be either operating
a  vehicle  in  a  reckless  or  wanton  manner  or   while   impaired
(Article 111 (1), UCMJ) or operating a vehicle with  a  blood  alcohol
measurement at .10 grams of  alcohol  per  100  milliliters  of  blood
(Article 111 (2), UCMJ). As stated in The Reporter, Volume 26,  Number
1,  (Mar  99),  Congress,  by  enacting  clause  2  of  Article   111,
established the minimum requirements for drunken driving and Congress’
enactment cannot be supplanted with a lower minimum  standard.   Thus,
the charged offense of drunk driving in violation of Article  134  for
an alcohol concentration of .08 grams was  not  authorized.   While  a
nonjudicial punishment action can be sustained so long as the  alleged
offender is aware of the nature of the alleged  misconduct,  that  did
not occur here.  Applicant was put on notice of the offense of driving
with a blood alcohol content  of  .08  or  more  of  alcohol  per  100
milliliters of blood, which is not sufficient to put him on notice  of
the offense of operating a vehicle while impaired under  Article  111,
UCMJ.  Therefore, JAJM stated that they recommend the Board set  aside
the Article 15 and restore all privileges, property, and rights to the
applicant.

A complete copy of the JAJM evaluation is at Exhibit C.

The Enlisted  Promotion  and  Military  Testing  Branch,  AFPC/DPPPWB,
reviewed this application and noted  that  the  applicant  received  a
referral Enlisted Performance Report (EPR) closing 6 Jan 99,  with  an
overall rating of “4.”  The applicant received the referral  EPR  with
references to his Article 15 action which rendered him ineligible  for
promotion  consideration  in  accordance  with  AFI  36-2502,   Airman
Promotion Program, Table 1.1, Rule 22.  DPPPWB indicated that  if  the
AFBCMR sets aside the Article 15 and restores  his  original  date  of
rank for promotion to the grade of airman first class (A1C) to  7  Nov
98, it could also void the portion of  the  report  that  makes  it  a
referral.

DPPPWB also noted that, on 13 Jun 00, the applicant received a  Letter
of Reprimand (LOR) for a speeding ticket he received on 21 May 00.  On
13 Jun 00, he received another LOR for  Driving  Under  the  Influence
(DUI) which occurred on  1  Aug  99  (a  separate  incident  from  the
incident on 16 Nov 98).  In addition, he was  placed  on  the  Control
Roster.  He also received  a  referral  EPR  closing  10  Aug  00  for
operating a motor vehicle under the influence of alcohol and violating
California State driving  laws.   He  also  received  an  LOR  and  an
Unfavorable  Information  File  (UIF)  for   behavior   injurious   to
personnel.  He was nonselected for  reenlistment  on  26  Oct  00  and
discharged on 6 Mar 01 in the grade of A1C.  After the reduction  from
A1C to Amn on 16 Nov 98, he was again promoted to A1C on  16  Sep  99,
when he again completed the 10 months time-in-grade requirement.  That
was an erroneous promotion as he was automatically ineligible based on
the referral EPR  closing  6  Jan  99.   This  promotion  to  A1C  was
subsequent to the 16 Nov 98 incident  but  prior  to  the  21  May  00
speeding incident.  DPPPWB indicated that they are uncertain as to why
the applicant was erroneously promoted to A1C on  16 Sep 99,  although
he had a DUI on 1 Aug 99,  6  weeks  earlier  and  the  referral  EPR.
Apparently the results were not confirmed at that time as he  did  not
receive the LOR for this incident until 13 Jun 00, and was not  placed
on the Control Roster until 23 Jun 00.  A referral EPR,  placement  on
the  Control  Roster,  and  nonselection  for  reenlistment  are   all
automatic ineligibility reasons for promotion in accordance  with  AFI
36-2502.  In view of the  additional  incidents  and  adverse  actions
taken, the applicant is ineligible for promotion to SrA.

DPPPWB deferred to AFLSA/JAJM’s recommendation regarding the set aside
of the reduction in grade from A1C to Amn.  DPPPWB indicated  that  if
the  reduction  is  set  aside  as  recommended  by  AFLSA/JAJM,   the
applicant’s DOR and effective date would be 7 Nov 98.

A complete copy of DPPPWB evaluation is at Exhibit D.

The  Performance  Evaluation  Section,  AFPC/DPPPEP,   reviewed   this
application and indicated that setting aside the Article 15 would make
the comments on the EPR closing 6 Jan 99 invalid.  Therefore,  if  the
Article 15 is set aside, they recommend removing the last two lines in
Section V and correcting the first line in Section VI.

A complete copy of the DPPPEP evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  27
Jul 01 for review and response.  As of this date, no response has been
received by this office (Exhibit F).

_________________________________________________________________

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.  Having  carefully  reviewed
this  application,  a  majority  of  the   Board   agrees   with   the
recommendation of AFLSA/JAJM and adopts the rationale expressed as the
basis for its decision that the applicant has been the  victim  of  an
error  or  an  injustice.   Accordingly,  a  majority  of  the   Board
recommends that the Article 15 imposed on 16 Nov 98 be set  aside  and
removed from  his  records,  and  that  all  rights,  privileges,  and
benefits taken from  him  because  of  the  Article  15  be  restored.
Furthermore, in light of the recommendation to set aside  the  Article
15, the majority agrees with AFPC/DPPPEP recommendation to remove  the
comments contained in the applicant’s EPR closing 6 Jan 99  pertaining
to the Article 15 punishment.  Accordingly, a majority  of  the  Board
recommends that the EPR be amended deleting  the  last  two  lines  in
Section V  and  the  first  line  in  Section  VI.   In  view  of  the
applicant’s further misconduct, the majority  notes  that  he  is  not
eligible for promotion consideration.  Therefore, no basis  exists  to
recommend supplemental promotion consideration  as  a  result  of  his
corrected records.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  The nonjudicial punishment under Article 15, UCMJ, initiated
on 22 Oct 98 and imposed on 16 Nov 98, be declared void  and  expunged
from his records, and all rights, privileges, and property of which he
may have been deprived be restored.

      b.  The Enlisted Performance Report, AF Form 910,  rendered  for
the period 7 May 97 through 6 Jan 99 be amended by deleting  the  last
two lines in Section V  (Rater’s  Comments)  and  the  first  line  in
Section VI (Indorser’s Comments).

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 5 Sep 01, under the provisions of AFI 36-2603:

      Mr. Gregory H. Petkoff, Panel Chair
      Mr. Clarence D. Long III, Member
      Ms. Nancy W. Drury, Member

By  majority  vote,  the  Board  voted  to  correct  the  records,  as
recommended.  Mr. Long voted to deny the appeal but did  not  wish  to
submit a minority report.   The  following  documentary  evidence  was
considered:

     Exhibit A.  DD Form 149, dated 12 Jan 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 16 Apr 01.
     Exhibit D.  Letter, AFPC/DPPPWB, dated 17 May 01, w/atchs.
     Exhibit E.  Letter, AFPC/DPPPEP, undated.
     Exhibit F.  Letter, SAF/MIBR, dated 27 Jul 01.




                                   GREGORY H. PETKOFF
                                   Panel Chair









AFBCMR 01-00224




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 , be corrected to show that:

            a.  The nonjudicial punishment under Article 15, UCMJ,
initiated on 22 Oct 98 and imposed on 16 Nov 98, be, and hereby is,
declared void and expunged from his records, and all rights,
privileges, and property of which he may have been deprived be
restored.

            b.  The Enlisted Performance Report, AF Form 910, rendered
for the period 7 May 97 through 6 Jan 99 be amended by deleting the
last two lines in Section V (Rater’s Comments) and the first line in
Section VI (Indorser’s Comments).






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency