RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                 DOCKET NUMBER:  02-00893
            INDEX CODE:  131.00
            COUNSEL:  NONE

                                  HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His pay grade of E-7 (master sergeant) be reinstated.

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APPLICANT CONTENDS THAT:

He was told by his previous commander that it was his intent to give  him
his stripe back before the four months time  limit  had  elapsed,  if  he
proved worthy.

Unfortunately, he was moved to a job other than the one he had planned or
anticipated.  He spoke to his new  commander  about  the  possibility  of
getting his previous rank  reinstated,  but  he  was  only  a  major  and
therefore unable to give him his  stripe  back.   Through  correspondence
with his former commander, a package for  clemency  was  staffed  to  his
commander’s boss and denied.  He inquired as to the reasons and was  told
no  compelling  information  was  offered  to  go  against  the  previous
appellate authority decision.

In support of his appeal, applicant provided a  letter  from  his  former
commander; a copy of his Article 15, dated 30 May 01; a copy of a  letter
from the Area Defense Counsel; an email from a co-worker  and  copies  of
the applicant’s letters to his commander and the Appellate Authority.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Based on available records, applicant’s  total  active  federal  military
service date (TAFMSD) is 18 Aug 81.  His most recent reenlistment was  on
20 Oct 00 for a period of four years.  His  expiration  term  of  service
(ETS) and date of separation (DOS) is 19 Oct 04.  He is currently serving
in the grade of technical sergeant (TSgt/E-6) with an effective date  and
date of rank (DOR) of 14 Jun 01.

On 19 Jan 99, the applicant received  Article  15  punishment  for  being
derelict in the performance of his duties on or about 9 Oct 98 to  on  or
about 12 Dec 98, in that, he willfully failed to remove his daughter from
the limits of XXXX AFB and by wrongfully allowing his daughter to  reside
with him in his assigned on-base  quarters  and  work  at  the  XXXX  AFB
Commissary.  His punishment consisted of a  suspended  reduction  to  the
grade of technical sergeant and forfeiture of $250 pay.

While serving in the grade of master sergeant and assigned  to  the  wing
safety office, the applicant was offered nonjudicial punishment on 30 May
01 for being derelict in his duties on 28 Apr 01 by willfully failing  to
respond to an accident scene to take photos,  prepare  required  reports,
and make necessary notifications, as it was his duty to do.

On 6 Jun 01, after consulting with  counsel,  the  applicant  waived  his
right  to  demand  trial  by  court-martial  and   accepted   nonjudicial
punishment.  He submitted a written presentation to his commander.  On 14
Jun 01, his commander determined that the  applicant  had  committed  the
offense alleged and imposed punishment consisting of a reduction  to  the
grade of technical sergeant.  The applicant appealed the  punishment  and
on 20 Jun 01, his appeal was denied.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the case file and recommended denial.  They  provided
the following facts on the case:

JAJM indicates that the applicant  contends  that  he  was  told  by  his
commander when he took the stripe he intended to give the  applicant  his
stripe back before the four-month time limit if he proved himself worthy.
 During this four-month period the applicant was  moved  to  another  job
under a new commander.  His new commander was a major and  did  not  have
authority to give the applicant his stripe back.  His new commander  told
the applicant that he would recommend to the next superior  commander  to
give the applicant his stripe back  toward  the  end  of  the  four-month
period if the applicant did a good job and stayed out of trouble.   About
three and a  half  months  later,  the  applicant  contacted  his  former
commander and asked to get a recommendation from  him  regarding  getting
his stripe back.  His former commander  sent  an  email  to  his  current
commander reminding him of the deadline.  The  applicant  approached  his
current commander about getting his stripe back.  His  current  commander
asked the applicant to write a memo requesting clemency and to provide  a
list of bullet statements describing his on-the-job accomplishments  over
the past three months.  His commander said  that  he  would  present  the
information to his commander along with a recommendation. On about 25 Sep
01, the applicant submitted a formal request to get his stripe back.

On 14 Oct 01, the applicant’s commander told him his request for clemency
was denied.  Applicant states  that  his  commander  told  him  that  the
request was denied because no compelling information was  offered  to  go
against the previous appellate authority decision.  The applicant wonders
how the deciding commander could deny his request when he had  never  met
him and he had recommendations from both his commander and the  commander
who took his stripe.

JAJM states that nonjudicial punishment is permitted by Article 15,  UCMJ
(10 USC 815), and governed by the Manual for Courts-Martial (MCM) and Air
Force Instruction 51-202.  This procedure permits commanders  to  dispose
of certain offenses without trial by  court-martial  unless  the  service
member  objects.   Service  members  first  must  be  notified  by  their
commanders of the nature of the charged offense, the evidence  supporting
the  offense,  and  of  the  commander’s  intent  to  impose  nonjudicial
punishment.  The service member may then consult with a  defense  counsel
to determine whether to  accept  nonjudicial  punishment  proceedings  or
demand trial by court-martial.  Accepting the  proceedings  is  simply  a
choice of forum; it is not an admission of guilt.

A member accepting nonjudicial punishment proceedings may have a  hearing
with the commander.  The member may have a spokesman at the hearing,  may
request that witnesses appear and testify, and may present evidence.  The
commander must consider any information  concerning  the  offense  before
imposing punishment.  Members  who  wish  to  contest  their  commander’s
determination or the severity of the punishment imposed may appeal to the
next  higher  commander.   The  appeal  authority  may  set   aside   the
punishment, decrease its  severity,  or  deny  the  appeal.   Nonjudicial
punishment does not constitute a criminal conviction.

The  MCM  provides  several  actions  a  commander  may  take  to  affect
nonjudicial punishment previously imposed.  The  commander  may  suspend,
mitigate, remit or set aside the punishment.  Each action has a different
impact and generally these options should be exercised within four months
of the date of execution of the punishment.

The  commander’s  powers  to  suspend,  mitigate,  remit,  or  set  aside
nonjudicial punishment passes to his or  her  successor  in  command.   A
commander cannot suspend, mitigate, remit, or set aside punishment  under
Article 15  unless  the  commander  had  the  authority  to  impose  that
punishment.  If the commander did not have the authority  to  impose  the
punishment, as in this case, the  immediate  commander  should  recommend
suspending, mitigating, remitting, or setting aside  the  action  to  the
next superior commander who is empowered to impose such a punishment.

In this case, the applicant’s entreaties failed to convince the commander
with the decision authority.  The commander  considered  the  applicant’s
inputs as well as the inputs of his former  and  current  commander.   He
determined that the applicant’s grade  should  not  be  restored.   While
different commanders may come to a different conclusion, the  commander’s
decision is neither arbitrary nor capricious and should not be disturbed.
 So long as that  commander  is  lawfully  acting  within  the  scope  of
authority granted by law, that judgment  should  not  be  disturbed  just
because others might disagree.  A commander “on the scene” has the first-
hand access to facts and a unique appreciation for the need of morale and
discipline within the  command  that  even  the  best-intentioned  higher
headquarters cannot match.

Reinstating applicant’s grade should only be granted  when  the  evidence
demonstrates an error or a clear injustice.  The  evidence  presented  by
the applicant is insufficient to warrant setting aside his  reduction  to
technical sergeant, and does  not  demonstrate  an  equitable  basis  for
relief.  The applicant has provided no  evidence  of  a  clear  error  or
injustice related to the nonjudicial punishment action.

A complete copy of JAJM’s evaluation, with attachment, is at Exhibit C.

HQ AFPC/DPPPWB states that JAJM reviewed this case and  determined  there
are no legal errors requiring corrective action and concurred with  their
recommendation to deny.

The complete Air Force evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A 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,  no
response has been received by this office (Exhibit E).

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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 error or injustice.  The applicant's complete submission was
thoroughly reviewed and his contentions were duly noted.  However, we  do
not find the  applicant’s  assertions  or  his  supporting  documentation
sufficiently persuasive to override the rationale provided by AFLSA/JAJM.
 The evidence of record reflects  that,  after  considering  all  matters
presented  by  the  applicant,  his  commander  determined  that  he  had
committed  the  offense  alleged,  and  made  the  decision   to   impose
nonjudicial punishment under Article 15, UCMJ, resulting in his reduction
in grade to technical  sergeant.   The  applicant’s  commander  with  the
decision authority considered the  applicant’s  inputs  as  well  as  the
inputs of his former  and  current  commander  and  determined  that  the
applicant’s grade should not be restored.   The  applicant  now  requests
that his previous rank of master sergeant be restored.  However, we  find
no evidence to indicate that the commander’s assessment of his misconduct
was  unjust  or  disproportionately  harsh  given  all  the   facts   and
circumstances of the case.  While  different  commanders  might  come  to
different conclusions, there is no evidence that the commander’s findings
were either arbitrary or capricious, or should be disturbed.   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 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 AFBCMR  Docket  Number  02-
00893 in Executive Session on 15 April 2003, under the provisions of  AFI
36-2603:

      Mr. Robert S. Boyd, Panel Chair
      Mr. David W. Mulgrew, Member
      Ms. Kathleen F. Graham, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 4 Jun 02.
    Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 13 Sep 02.
    Exhibit E.  Letter, SAF/MRBR, dated 4 Oct 02.




                                   ROBERT S. BOYD
                                   Panel Chair