RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02844
            INDEX CODE:  131.09, 110.00

            COUNSEL:  GEORGE BROWN

            HEARING DESIRED:  NO



_________________________________________________________________

APPLICANT REQUESTS THAT:

His  grade  of  staff  sergeant  (E-5)  be  restored  and   that   his
reenlistment eligibility (RE) code be changed to allow eligibility  to
reenlist.
_________________________________________________________________

APPLICANT CONTENDS THAT:

After having completed nine  months  and  nine  days  of  service,  he
received an Article 15.  His punishment consisted of  a  reduction  in
grade from an E-5 to a senior airman (E-4) for a  period  of  4 months
and 30 days of extra duty.  At three months into  the  punishment,  he
was separated from the Air Force under the High Year of  Tenure  (HYT)
program.

Due to an administrative error, his RE code of  “4D”  was  changed  to
“2T.”  He was informed by a recruiter that he needs an RE code of  “1”
to reenter the Air Force.

In support of  his  request,  the  applicant  submits  copies  of  his
military personnel record,  with  the  Article  15.   The  applicant’s
complete submission, with attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular  Air  Force
on   14  Nov  89.   The  applicant  continued  to  reenlist  and   was
progressively promoted to the grade of staff sergeant (E-5),  with  an
effective date and date of rank of 1 Nov 97.   His  last  reenlistment
was on 16 Dec 98 for a period of four years in the grade of E-5,  with
a total of nine years, one month  and  two  days  of  active  military
service.  He was reduced to the grade of senior airman (E-4),  with  a
date of rank (DOR) of 13 Aug 99, pursuant to an Article 15.

Applicant's profile for the last eight reporting periods follows:

            Period Ending    Evaluation

             22 Jan 93 5 - Immediate Promotion (grade of E-4)
             22 Jan 94 4 - Ready
             22 Jan 95 5
             22 Jan 96 5
             22 Jan 97 5
             11 Oct 97 5
             11 Mar 98 5 (grade of E-5)
             30 Mar 99 5

On 2 Aug 99, applicant was  notified  of  his  commander's  intent  to
impose nonjudicial punishment on him  under  Article  15,  UCMJ.   The
misconduct applicant had  allegedly  committed  was  for  engaging  in
sodomy with the wife of another airman, in violation of  Article  125,
UCMJ.  The applicant consulted a lawyer, waived his  right  to  demand
trial by court-martial and  accepted  nonjudicial  punishment.   After
considering all matters presented to him, the commander found that the
applicant did commit  one  or  more  of  the  offenses  alleged.   The
commander imposed punishment of a reduction to  the  grade  of  senior
airman, with a new date of rank of 13 Aug 99, and  30  days  of  extra
duty.  The applicant appealed the nonjudicial punishment; however,  it
was denied by the appellate authority on 9 Sep 99.  On 14 Sep 99,  the
local Judge Advocate found the record legally sufficient.

On 13 Nov 99, the applicant was  involuntarily  released  from  active
duty  with  an  honorable  characterization  of  service   under   the
provisions of AFI 36-3208 (reduction in force).  He  had  completed  a
total of 10 years and was serving in the grade of senior airman  (E-4)
at the time of separation.  Applicant received an RE Code of 4D, which
defined means "Grade is senior airman or sergeant, completed at  least
9 years’ Total Active Federal Military Service (TAFMS), but fewer than
16 years’ TAFMS, and has not been  selected  for  promotion  to  staff
sergeant (E-5)."  The applicant is currently a member of the  inactive
Reserve.
_________________________________________________________________

AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application be denied.  JAJM indicates  that
the supporting  nonjudicial  punishment  documentation  is  no  longer
maintained.  JAJM states that by electing to resolve the allegation in
the nonjudicial forum, the  applicant  placed  the  responsibility  to
decide whether he had committed the offense with his  commander.   The
commander ultimately resolved the issues  of  the  alleged  misconduct
against the applicant, as did the  commander  on  appeal.   There  was
sufficient evidence for the commander to  determine  the  offense  had
been committed.  While different fact  finders  may  have  come  to  a
different conclusion, the commander’s findings are  neither  arbitrary
nor capricious and should not be disturbed.  When evidence of an error
or injustice is missing, it is clear that  the  BCMR  process  is  not
intended to simply second-guess the appropriateness of  the  judgments
of field commanders.  A set aside 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
the Article 15 action, 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.    The
AFLSA/JAJM evaluation is at Exhibit C.


HQ AFPC/DPPRS recommends the application be denied.  DPPRS states that
the established E-4 High Year of Tenure (HYT) date  is  the  year  and
month an individual reaches 10 years  Total  Active  Federal  Military
Service (TAFMS).  The applicant did not submit  any  new  evidence  or
identify any errors or  injustices  that  occurred  in  the  discharge
processing.  He provided no other facts warranting an upgrade  of  the
discharge.  The HQ AFPC/DPPRS evaluation is at Exhibit D.


HQ AFPC/DPPAE recommends the  application  be  denied.   DPPAE  states
senior airmen (E-4s) are separated upon reaching 10  years’  TAFMS  if
they are not projected for promotion to  staff  sergeant  (E-5).   The
applicant was properly separated under established policy at the  time
he left the Air Force and his current RE code should not  be  changed.
The HQ AFPC/DPPAE evaluation is at Exhibit E.


HQ AFPC/DPPPWB recommends the applicant’s request to restore his  rank
to staff sergeant (E-5) be  denied.   DPPPWB  defers  to  AFLSA/JAJM’s
recommendation.  The HQ AFPC/DPPPWB evaluation is at Exhibit F.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on  17
Jan 03 for review and response.  As of this date, no response has been
received by this office (Exhibit G).
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the  following  advisory  opinion  is
provided concerning the RE code issue.

HQ AFPC/DPPAE states that the applicant was discharged with an RE code
of 4D, which renders him ineligible to reenlist in the Air Force.  The
applicant has two DD Form 214s in his record, but only one  is  valid.
The initial DD Form 214 properly reflects RE Code 4D.   The  other  DD
Form  214  incorrectly  reflects  2T,  which  defined  means   “Airman
possesses an HYT date of at least 20 years’ TAFMS, is within 23 months
of HYT date, and 13 months or less remain  until  date  of  separation
(DOS).  The applicant does not  qualify  for  the  latter  code.   His
current RE code of 4D is correct and should  not  be  changed.   DPPAE
recommends the applicant’s request to have his RE code of  4D  changed
be denied.  The HQ AFPC/DPPAE evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  21
Apr 03 for review and response.  As of this date, no response has been
received by this office (Exhibit I).

_________________________________________________________________

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.  Applicant’s contentions are duly
noted.  However, after reviewing the applicant’s  submission  and  the
available  evidence  of  record,  we  agree  with  the  opinions   and
recommendations of the respective Air  Force  offices  and  adopt  the
rationale expressed as the basis for our decision that  the  applicant
has failed to sustain his burden that he has suffered either an  error
or an injustice.  When initiating the Article 15 action  and  imposing
the nonjudicial punishment, we believe  the  commander  acted  on  the
basis of information he determined to be  reliable.   We  are  of  the
opinion that the applicant’s commander, being  aware  of  all  of  the
circumstances involved, was in the best position to determine  whether
the applicant  should  receive  the  Article  15  and  what  resultant
punishment he should render.   We  are  unpersuaded  by  the  evidence
provided that the commander abused his discretionary authority when he
imposed the nonjudicial punishment, or  that  the  applicant  was  not
afforded all rights granted by the prevailing Air  Force  Instruction.
Hence, the applicant was appropriately separated when he  reached  his
established E-4 High Year of Tenure (HYT) date.  We further find  that
the RE code of “4D”  accurately  reflects  the  circumstances  of  his
separation and we do not find this code to be in error or unjust.   In
view of the foregoing and in the absence of persuasive evidence to the
contrary, we find no 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  BC-2002-
02844 in Executive Session on 18 June 2003, under  the  provisions  of
AFI 36-2603:

                  Mr. Thomas S. Markiewicz, Vice Chair
                  Mr. Wayne R. Gracie, Member
                  Mr. Billy C. Baxter, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Aug 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 22 Nov 02.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 13 Dec 02.
   Exhibit E.  Letter, HQ AFPC/DPPAE, dated 18 Dec 02.
   Exhibit F.  Letter, HQ AFPC/DPPPWB, dated 6 Jan 03.
   Exhibit G.  Letter, SAF/MRBR, dated 17 Jan 03.
   Exhibit H.  Letter, HQ AFPC/DPPAE, dated 8 Apr 03.
   Exhibit I.  Letter, AFBCMR, dated 21 Apr 03.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair