RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-02650
            INDEX NUMBER:  126.00
      XXXXXXXXXXX      COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

___________________________________________________________________

APPLICANT REQUESTS THAT:

His grade of senior airman (E-4) lost as a result of an Article  15
action be restored with a date of rank (DOR) of 20 Jan 02.

___________________________________________________________________

APPLICANT CONTENDS THAT:

His commander intended to suspend his reduction in grade to  airman
and restore his original grade of senior airman  within  the  four-
month window commanders have to suspend, mitigate,  remit,  or  set
aside punishment.  However, due to the unit’s involvement  with  an
Operational   Readiness   Inspection,   the    four-month    window
inadvertently passed without the commander initiating the  required
action to restore his grade.

Applicant provides letters of support and documentation  of  intent
from his chain of command that his grade should have been restored.

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

___________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active duty in the  grade  of
airman first  class  (A1C).   His  Total  Active  Federal  Military
Service Date is 11 Feb 98.  On 10 Sep 01, while the  applicant  was
serving in the grade of senior airman, his  commander  offered  him
proceedings under Article 15 for the alleged violation  of  Article
92 of the Uniformed  Code  of  Military  Justice  in  that  he  was
derelict in the performance of his duties by willfully  failing  to
refrain from using his Bank of America Government Credit  card  for
his  personal  use.   On  19  Sep  01,  after  consulting  counsel,
applicant accepted proceedings under Article 15.  He chose  not  to
make  a  personal  appearance  and  did  not   submit   a   written
presentation.  On 20 Sep 01, his commander determined that  he  had
committed the alleged offense and imposed punishment consisting  of
a three-stripe reduction to airman basic (E-1) and  45  days  extra
duty.  The applicant appealed and submitted a written presentation.
 On 1 Oct 01, the appellate authority granted his appeal in part by
mitigating the three-grade  reduction  to  a  two-grade  reduction,
i.e., reduction to airman vice airman basic.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  It is not
clear from the commander’s memo of 12 Jul 02 that  he  intended  to
suspend  the  applicant’s  reduction  in  grade  to  airman.    The
commander indicated that he intended to consider doing so, but also
indicated he favorably supported applicant’s appeal.  The commander
was correctly informed that under  the  Manual  for  Courts-Martial
that an executed reduction may only be suspended  within  a  period
four months  after  the  date  of  execution.   The  reduction  was
executed on 20 Sep 01, therefore the suspension had to be  effected
no later than 19 Jan 02.

The  facts  and  circumstances  of  the  applicant’s  case  do  not
constitute legal error.  The Board, however, may act to  correct  a
clear injustice.  The applicant has attempted to make such a  case.
The Board should carefully examine the evidence  presented  by  the
applicant to determine:

        a.  Whether the commander clearly intended to  suspend  the
executed reductions.

        b.  Whether the commander had made  a  decision  to  do  so
within four months of the effective date of the reduction.

        c.  Whether the commander failed to execute the intent.

         d.  Whether  the  commander’s  failure  to   suspend   the
reduction  constitutes  an  injustice   under   these   facts   and
circumstances.

They are not persuaded that the applicant has  made  such  a  case.
The commander’s statement is equivocal at  best  and  he  does  not
state that he had in fact decided to take  action  to  suspend  the
reduction within the four-month window.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB evaluated the effect of suspending the reduction on the
applicant’s promotion opportunity.   Should  the  Board  grant  the
applicant’s request, he would be restored to the grade of SrA  with
a DOR of 11 Aug 00 and an effective date of 19 Jan  02.   He  would
then be eligible for supplemental promotion consideration to  staff
sergeant (SSgt) beginning with cycle 01E5.

The complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation was forwarded to  the  applicant
on 11 Oct 02 for review and comment within 30  days.   To  date,  a
response has not been received.

___________________________________________________________________

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.  The letter from the commander
that imposed the punishment persuaded the Board that his failure to
suspend the applicant’s reduction in grade was due to other factors
than a lack of intent on his part.  While the  commander  indicates
that he intended to consider  rather  than  initiate  the  required
action, he does indicate that he trusted the judgment of the senior
NCO who advised him the applicant was deserving of consideration to
have the reduction suspended.  In that regard,  the  commander  has
recommended that this  Board  favorably  consider  the  applicant’s
appeal.  We also note that the applicant’s first sergeant has  also
recommended that the  applicant’s  rank  be  restored.   The  first
sergeant also appears to indicate that the failure to consider  and
possibly suspend the applicant’s reduction  was  an  administrative
oversight that they have taken action  to  fix  and  avoid  in  the
future.  AFLSA/JAJM believes  that  the  commander’s  statement  is
“equivocal.”  To an extent we can agree,  however;  we  believe  it
creates doubt that should be resolved  in  the  applicant’s  favor.
The applicant has requested restoration  of  his  grade  of  senior
airman with a DOR  of  20  Jan  02.   However,  had  the  commander
initiated action to suspend the  applicant’s  demotion  within  the
four month window, his DOR would actually be the original one  that
he held.  Therefore, we recommend the applicant be provided  relief
as indicated below.

___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the  Air  Force
relating to APPLICANT, be corrected to show that the  reduction  to
the grade of airman (E-2) imposed by nonjudicial  punishment  under
Article 15,  UCMJ,  on  20  September  2001,  be  suspended  as  of
19 January 2002 for a period of six months and that he be  restored
to the grade of  senior  airman  (E-4)  with  a  date  of  rank  of
11 August 2000 and an effective date of 19 January 2002.

It is further directed that he be provided supplemental
consideration for promotion to the grade of staff sergeant (E-5)
beginning with cycle 01E5.

If selected for promotion to staff sergeant by supplemental
consideration, he be provided any additional supplemental
consideration required as a result of that selection.

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 qualifications 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  Docket  Number  02-
02650 in Executive Session on 23 January 2003, under the provisions
of AFI 36-2603:

      Ms. Cathlynn Sparks, Panel Chair
      Mr. John E. B. Smith, Member
      Mr. Joseph A. Roj, Member

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

     Exhibit A.  DD Form 149, dated 28 Jul 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 13 Sep 02.
     Exhibit D.  Memorandum, AFPC/DPPPWB, dated 1 Oct 02.
     Exhibit E.  Letter, SAF/MIBR, dated 11 Oct 02.




                                   CATHLYNN SPARKS
                                   Panel Chair


AFBCMR 02-02650


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 XXXXXXXX, XXX-XX-XXXX, be corrected to show that
the reduction to the grade of airman (E-2) imposed by nonjudicial
punishment under Article 15, UCMJ, on 20 September 2001, be, and
hereby is, suspended as of 19 January 2002 for six months and that
he be, and hereby is, restored to the grade of senior airman (E-4)
with a date of rank of 11 August 2000 and effective date of 19
January 2002.

      It is further directed that he be provided supplemental
consideration for promotion to the grade of staff sergeant (E-5)
beginning with cycle 01E5.

      If selected for promotion to staff sergeant by supplemental
consideration, he be provided any additional supplemental
consideration required as a result of that selection.

      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 qualifications 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