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.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His Leave and Earnings Statement (LES) reflects  leave  was  effective
and filled during dates issued.  This incident has ruined his  career.
His complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6 Jan  84  and  was
promoted to the grade of staff sergeant 1 Sep 91. During the period in
question, the applicant was assigned to the 23rd MXS at Pope AFB,  NC.
According to the  personnel  data  system,  his  Enlisted  Performance
Reports (EPRs) from 1995 through  24  Oct  01  reflect  the  following
overall ratings: 4, 5, 5, 3, 3, 4, 2 (referral), and 4.

The applicant filled out a leave request on 11 Apr  00,  which  listed
17 Apr 00 and 25  Apr  00  as  the  first  and  last  days  of  leave,
respectively. However,  he  did  not  show  for  work  on  14 Apr  00.
According to a 20 Apr 00 letter from his supervisor, the applicant had
filled out a leave form but failed to process the paperwork for  leave
starting on 17 Apr 00. The applicant had told him earlier that he  was
having trouble  getting  travel  arrangements  and  wasn’t  sure  when
exactly he was starting his leave. The supervisor had told him not  to
sit on the leave request and signed it to ensure there were no delays.
On 14 Apr 00, the supervisor was told by another individual  that  the
applicant had tried unsuccessfully to contact the supervisor to advise
he was starting leave earlier on 14 Apr 00. The supervisor
noticed the leave slip was still on the desk. The supervisor indicated
in his statement that he did not  give  the  applicant  permission  to
leave early.  The matter  was  forwarded  up  the  chain  of  command,
whereupon the commander completed and  signed  a  leave  authorization
form placing the applicant on leave from 14 Apr through 25 Apr 00. The
applicant returned to his duty station on 27 Apr 00.

The applicant was offered nonjudicial  punishment  on  3  May  00  for
having, without authority, absented himself from  his  place  of  duty
from 14 to 16 Apr 00.  On 8 May 00, after consulting with counsel, the
applicant waived his right to demand trial by court-martial, requested
a personal  appearance  and  submitted  a  written  presentation.  The
applicant contended he informed the supervisor that he might  have  to
leave early on 14 April 00 and was  told  there  was  no  problem.  He
asserted he was not trying to “scam” the Air Force and, if he had been
able to reach his supervisor the night before, the earlier leave  date
would have not been a problem. On 11 May 00, the commander  determined
that the applicant had  committed  the  offense  alleged  and  imposed
punishment consisting of a suspended reduction to senior airman  until
10 Nov 00, forfeiture of $192 in pay, and five  days  of  extra  duty.
The applicant’s appeal was denied on 22 May 00.

On 28 Nov 00, the EPR closing 24 Oct 00 was referred to the applicant.
The overall rating was 2 (not recommended for promotion at this  time)
and he was  marked  unacceptable  in  his  on/off  duty  conduct.  The
derogatory comments referred to  the  leave  incident.  The  applicant
provided a rebuttal.

HQ AFPC/DPPPWB informally advised the AFBCMR Staff that the Article 15
and  referral  EPR  made  the  applicant  ineligible   for   promotion
consideration for technical sergeant in cycles 00E6 and 01E6.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM asserts it is clear the commander considered the  applicant
to be absent without leave (AWOL) from 14 Apr to the beginning of  his
authorized leave, 17 Apr 00, and that he  intended  the  applicant  be
punished for that  unauthorized  absence.   However,  the  commander’s
action in placing the applicant on leave created a basic contradiction
in that one cannot be on leave and AWOL at the same time.  As such the
records are inconsistent and corrective action is required  to  either
remove the Article 15 action as the applicant requests or  credit  his
leave account.  As the last action taken was the  Article  15,  it  is
reasonable to conclude that this is the action that should remain. The
applicant was AWOL at the time he was required to be at his duty
station on 14 Apr and did not appear. The fact that the  commander  at
some later point erroneously placed the applicant on  leave  beginning
14 Apr to ensure  he  did  not  escape  sanction  for  his  authorized
departure does not change the applicant’s AWOL status.  Therefore,  it
is  appropriate  to  resolve  this  inconsistency  by  crediting   the
applicant’s account with the three days leave erroneously debited.  No
relief should be granted as to the Article 15 action.

A complete copy of the evaluation, with attachment, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 4 Oct 02 for review and comment within 30  days.   As  of
this date, this office has received no response.

_________________________________________________________________

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 error  or  injustice  warranting  set  aside  of  the
Article  15.   AFLSA/JAJM’s   recommendation   that   the   AWOL/leave
inconsistency be resolved by restoring three  days  of  leave  to  the
applicant’s account was noted. However, after carefully  weighing  all
the available evidence  and  statements,  we  are  not  persuaded  the
applicant was trying to “scam” the system.   We  believe  this  was  a
misunderstanding as he contends.  In this regard, our own  experiences
have  included  many  instances  where  an  individual,  civilian   or
military, has unsettled leave plans or last minute  changes.  We  know
supervisors and subordinates  frequently  deal  with  uncertain  leave
situations and we find it reasonable that the  applicant  believed  he
had covered himself.  The supervisor indicates in his  statement  that
he did not approve an earlier  departure  date.  On  the  other  hand,
neither does he state that he specifically  denied  the  applicant  an
earlier departure date. The  supervisor  confirms  the  applicant  had
informed him of his travel arrangement difficulties and uncertainty as
to his precise leave  start  date.  The  applicant  contacted  another
individual about his earlier departure when he  could  not  reach  his
supervisor.  While the applicant may not have exercised good  judgment
in processing his  leave,  in  our  view  his  carelessness  was  more
deserving of  a  letter  of  reprimand  than  nonjudicial  punishment.
However, in addition to the Article 15, he was further penalized  with
a referral EPR. As a result, he  was  made  ineligible  for  promotion
consideration to technical sergeant for not one,  but  two,  promotion
cycles.  Therefore, we conclude the Article 15 should be set aside  on
the basis of equity. The applicant did not request the referral EPR be
voided but since it was driven by the same incident as the Article 15,
which we have found to be overly harsh, we also recommend the referral
report be voided for consistency’s sake and the applicant be  afforded
supplemental promotion consideration beginning with cycle 00E6.

_________________________________________________________________

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 punishment imposed under the provisions of  Article  15,
UCMJ, on 11 May 2000, be set aside  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 2 April 2000 through 24 October 2000 be declared  void  and
removed from his records.

It  is  further  recommended  that  he  be   provided   supplemental
consideration for promotion to the grade of technical  sergeant  for
all appropriate cycles beginning with cycle 00E6.

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 individual  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 17 December 2002 under the provisions of AFI  36-
2603:

                 Ms. Peggy E. Gordon, Panel Chair
                 Ms. Barbara J. White-Olson, Member
                 Mr. Charlie E. Williams, Jr., Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence relating to AFBCMR  Docket  Number  02-
02126 was considered:

   Exhibit A.  DD Form 149, dated 24 Jun 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 Sep 02, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 4 Oct 02.




                                   PEGGY E. GORDON
                                   Panel Chair






AFBCMR 02-02126




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 punishment imposed under the provisions of Article
15, UCMJ, on 11 May 2000, be, and hereby is, set aside 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 2 April 2000 through 24 October 2000 be, and hereby is,
declared void and removed from his records.

      It is further directed that he be provided supplemental
consideration for promotion to the grade of technical sergeant for all
appropriate cycles beginning with cycle 00E6.

      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 individual 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