RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-02534
            INDEX CODE:  126.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The vacation of his suspended reduction under Article 15  of  the  Uniformed
Code of Military Justice (UCMJ) which reduced him to  the  grade  of  senior
airman, be set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His new commander told him that she believed his  punishment  was  excessive
and that the best interests of the Air Force would  be  served  if  she  set
aside his reduction and that she was going to reinstate him to the grade  of
staff sergeant.  This decision was made after  numerous  meetings  with  the
assistant staff  judge  advocate,  the  first  sergeant  and  himself.   She
prepared an AF Form 3212, Record of Supplementary Action under  Article  15,
UCMJ, on 17 May 02, and provided it to the legal  office.   Two  days  later
she received a phone call requesting supporting documentation.  She wrote  a
supporting letter and took it directly to the legal office.   She  was  told
by the legal office that she could  not  accomplish  the  set  aside  action
because it was not legally sufficient.  The  applicant  filed  an  Inspector
General complaint.  During a meeting with the IG on  11  Jun  02,  with  all
parties involved, the legal office stated that they were incorrect  and  the
set aside action was  legally  sufficient.   On  12 Jun  02,  her  commander
prepared another AF Form 3212. On 13 Jun 02, his commander  called  him  and
stated that she changed her mind.  She was called into the wing  commander's
office and was given a few words of wisdom from the wing commander and  vice
wing commander.

He filed an Article 138 complaint.  In his commander's response  she  states
that she had all of the facts in front of her for the  first  time  and  was
told by the wing commander that she could let him test for  staff  sergeant.
If she had not had all of the facts, then why would she  sign  the  AF  Form
3212 not once, but twice.  Everyone in the chain  of  command  was  involved
and she knew the entire time he could test  for  promotion.   She  had  made
that possible by ordering a  command-directed  Enlisted  Performance  Report
(EPR) in December 2001.  In April 2002, she requested a test  date  for  the
May 2002 testing cycle.  His commander put a lot of work into restoring  his
grade.  He is not sure what was said to her by the wing  commander,  but  it
was something significant for her to turn her back on him and his family.

In  support  of  his  request,  applicant  provided  a  personal  statement,
documentation associated with his Article 138 complaint, a copy of  his  EPR
closing 7 Mar 02; his AF Form 931, Performance Feedback Worksheet; AF  Forms
3212 and documentation associated with set aside requests,  a  copy  of  his
Letter  of  Reprimand,  and  an  extract  from  AFI  51-202.   His  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  17
May 90.  He was progressively promoted to the grade of staff sergeant.

On 19 Dec 00, the applicant was notified by his commander of his  intent  to
recommend nonjudicial punishment under  Article  15  of  the  UCMJ  for  his
failure to refrain from utilizing his Government Travel Card for  unofficial
cash advances and purchases in the amount  of  $461.05;  and,  for  uttering
checks in the amount of $857.37 and $757.00 for cash  advance,  and  failing
to maintain sufficient funds in the checking account  for  payment  of  such
checks in full upon their presentment for payment.  He was  advised  of  his
rights in this matter and acknowledged receipt of  the  notification  on  22
Dec 00.  After consulting counsel, the applicant waived his right to  demand
trial by court-martial, accepted Article  15  proceedings,  and  provided  a
written presentation to his commander.  On 28 Dec  00,  after  consideration
of all the facts, his commander determined that he committed one or more  of
the offenses alleged and  imposed  punishment  on  the  applicant.   He  was
reduced to the grade of senior airman,  suspended  until  26  Jun  01.   The
applicant elected not to appeal his punishment.

On 26 Jun 01, the applicant was notified by his commander of his  intent  to
vacate the suspended reduction to senior airman.  The  specific  reason  for
this action was for uttering checks in the amount of $124.00 on  26  Mar  01
and $140.00 on 30 Mar 01, and failing to maintain sufficient  funds  in  the
checking account for payment of such checks in full upon  their  presentment
for payment.  After consulting counsel, the applicant provided an  oral  and
written  presentation  to  his  commander.   On  2 Jul  01,  the   commander
determined that he did commit one  or  more  of  the  offenses  alleged  and
reduced the applicant to the grade of senior airman with a date of  rank  of
28 Dec 00.

On 1 May 02, the applicant submitted a  request  to  his  new  commander  to
suspend, mitigate, or set aside the reduction to senior airman.  On  17  May
02, his commander signed an  AF  Form  3212  purporting  to  set  aside  the
reduction to the grade of senior airman.  On 5  Jun  02,  the  legal  office
advised the commander that the  paperwork  was  submitted  to  the  Military
Personnel Flight (MPF) without a legal review and that the  action  proposed
was outside the 4 month window  normally  allowed  for  set  asides  without
proper authority.  On 12 Jun 02, the applicant's  commander  signed  another
AF Form 3212 purporting to set aside the reduction to senior airman.  On  13
Jun 02, the commander issued the applicant a Letter of Reprimand  (LOR)  for
the Article 134 offense of which the commander found  the  applicant  guilty
of in the 28 Dec 00 Article 15 action.  On that  same  date,  the  commander
had a meeting with the wing commander and vice wing commander,  and  stopped
pursuing the set aside action.

The following is a resume of the applicant's EPR ratings:

      PERIOD ENDING    PROMOTION RECOMMENDATION

            07 Mar 02        4 - Command Directed
            21 Jul 01        3 - Referral REport
            05 Jan 01        3
            05 Jan 00        4
            05 Jan 99        4
            05 Jan 98        4
            01 May 97        4
            12 Oct 96        4

The applicant has  been  selected  for  promotion  to  the  grade  of  staff
sergeant in the 02E5 promotion cycle.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.  JAJM  states
that a set aside is appropriate when the commander believes that, under  all
circumstances of the case, the punishment has resulted in  clear  injustice.
AFI  51-302  expounds  the  concept  of  "clear   injustice."    It   states
"commanders should not routinely set aside punishment, but  should  exercise
this discretionary authority only in the  rare  and  unusual  case  where  a
question concerning the guilt  of  the  member  arises  or  where  the  best
interests of the Air Force are served  by  clearing  the  member's  record."
Set aside action is  not  normally  considered  a  rehabilitation  tool  and
commanders should not routinely set aside punishment to use it as  a  reward
for a member who merely avoids future misconduct.   The  commanders  concern
was that the applicant would not be promoted with  the  Article  15  on  his
record.  There is no evidence that she concluded that the applicant had  not
committed the offenses  alleged.   In  fact,  she  intended  to  ensure  his
misconduct was memorialized  through  the  EPR  comments  and  a  Letter  of
Reprimand placed in his Unfavorable Information File (UIF).   The  commander
was correctly advised by the legal office that the facts  of  the  case  did
not meet the criteria for a set aside.  The  request  was  approximately  18
months after the original action and 10 months after the vacation.   Neither
a clear injustice nor  unusual  circumstance  were  present.   However,  the
legal  office   was   incorrect   in   that   determinations   of   "unusual
circumstances" or "the  best  interests  of  the  Air  Force"  are  made  by
commanders, not  lawyers.   The  set  aside  documentation  was  incorrectly
submitted to the Military Personnel Flight (MPF) but it was  not  processed.
His commander later met with the base wing commander.  As a  result  of  the
meeting it became clear that the commander was under the misconception  that
the applicant would not be promoted with a nonjudicial punishment action  on
his record.  Since the Article 15 did  not  affect  his  promotability,  the
commander decided to set aside was not appropriate.  The  applicant  alleges
his Article 15 was not set  aside  because  of  illegal  command  influence.
When asked about  the  applicant's  allegation,  the  commander  stated  the
decision was hers.  Commanders may consult with other commanders,  including
superior commanders,  as  long  as  the  action  taken  is  the  subordinate
commanders' sole decision.  The JAJM evaluation is at Exhibit C.

AFPC/DPPPWB reviewed applicant's  request  and  recommends  denial.   DPPPWB
states that based on his date of rank (DOR) to senior airman of 28  Dec  00,
he would have been eligible for promotion consideration  to  staff  sergeant
for cycle 01E5.  However, when he received a referral EPR for the  period  6
Jan 01 through 21 Jul 01, he  became  ineligible.   The  DPPPWB  evaluation,
with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  25
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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  error  or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of  the  case;  however,  evidence
has not been presented which would lead us to believe that he has  been  the
victim of an error or injustice.  Therefore, we agree with the opinions  and
recommendations of the Air  Force  offices  of  primary  responsibility  and
adopt their rationale as the basis for our  conclusion  that  the  applicant
has not been the victim of  an  error  or  injustice.   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  Docket  Number  02-02534  in
Executive Session on 15 Jan 03, under the provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Billy C. Baxter, Member
      Ms. Brenda L. Romine, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 19 Sep 02.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 1 Oct 02, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 25 Oct 02.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair