RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01608
            INDEX CODE:  131.09

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His rank of staff sergeant (E-5) be restored,  with  a  date  of  rank
(DOR) of 1 Dec 99.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was told by his commander that his rank would be restored after  he
was given nonjudicial punishment under  Article  15  for  operating  a
passenger  vehicle  while  drunk.   However,  he  never  checked   the
regulations to determined what options were available to him.  When he
finally did inquire, it was determined that the only way the commander
could restore his rank was to set aside the  punishment,  which  would
mean a retroactive DOR, pay and allowances.  The commander  felt  that
this action was inappropriate for such a serious offense.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, a message from the area defense counsel (ADC), a  statement
from his commander, and copies of his last five  Enlisted  Performance
Reports (EPRs), an Air Force Commendation Medal (AFCM) citation, and a
certificate for award of the Air Force Achievement Medal (AFAM).

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

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently serving on active duty in the grade of
senior airman, with a DOR of 8  Apr  02.   His  Total  Active  Federal
Military Service Date (TAFMSD) is 7 Apr 92.

On 22 Mar 02, the applicant’s  commander  notified  him  that  he  was
considering whether he should be punished under  Article  15,  Uniform
Code  of  Military  Justice  (UCMJ)  based  on  allegations  that  the
applicant did, on or about 9 Mar 02, operate a  vehicle  while  drunk.
The applicant  was  advised  of  his  rights  in  the  matter.   After
consulting military legal counsel, the applicant waived his  right  to
demand trial by court-martial, accepted  the  nonjudicial  proceedings
under Article 15, and submitted written comments for review.  On 8 Apr
02, after considering the matters  presented  by  the  applicant,  the
commander found that the applicant had committed the  alleged  offense
and imposed punishment.  The applicant was reduced from the  grade  of
staff sergeant to senior airman, and was ordered  to  forfeit  $408.00
and perform 14 days of extra duty, which were suspended  until  7  Oct
02, after which  they  were  remitted.   The  applicant  appealed  the
punishment but it was denied by the appellate authority.   On  18  Apr
02, legal authority  found  that  the  nonjudicial  proceedings  under
Article 15 were legally sufficient.

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AIR FORCE EVALUATION:

AFLSA/JAJM  recommended  denial  indicating  that  in  view   of   the
applicant's eligibility to test for promotion to the  grade  of  staff
sergeant prior to his mandatory  separation  date,  they  believe  the
commander's efforts to support the  applicant  to  achieve  that  goal
through that mechanism is more in accord with the regulatory  guidance
and the appropriate exercise of command discretion than would be a set
aside under the circumstances described.  In their view, the  evidence
presented by the applicant was insufficient to warrant  setting  aside
the Article 15 action, and did not demonstrate an equitable basis  for
relief.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB deferred to AFLSA/JAJM's  recommendation.   However,  they
indicated that should the Board remove the Article 15,  the  applicant
would be entitled to supplemental consideration for promotion  to  the
grade of technical sergeant beginning with cycle 02E6, providing he is
otherwise eligible and recommended by his commander.

AFPC/DPPPWB noted that the applicant reaches his high year  of  tenure
(HYT) on 7 Apr 04.  He has tested for cycle 03E5 and if not  selected,
he will be separated.

A complete copy of the AFPC/DPPPWB evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a response indicating that he made a  huge  mistake
when he decided to drink and drive.   He  had  an  outstanding  career
until his driving under the influence (DUI) offense.  He has continued
to do well.  However, if he is not promoted in Aug 03, it will be  the
end of his career after 12 years.  He understands the severity of  the
offense but to cripple him  for  the  rest  of  his  life  is  not  an
appropriate  punishment.   He  is  asking  that  the  Board  favorably
consider restoring his rank of staff sergeant so that he can  continue
excelling in the career that he loves.

Applicant's complete response is at Exhibit F.

_________________________________________________________________

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  evidence  of  record  indicates
that the applicant received nonjudicial punishment  under  Article  15
for operating a vehicle while drunk, resulting in his  reduction  from
the grade of staff sergeant to senior airman.  After a careful  review
of the facts and circumstances of this case, we find no evidence which
convinces us that the applicant did not commit  the  alleged  offense.
Therefore, we are not inclined to  remove  the  Article  15  from  the
applicant’s records absent a strong showing the commander who  imposed
the punishment abused his  discretionary  authority.   Notwithstanding
this, we note that while the commander  believed  the  punishment  was
appropriate, based on the applicant's sustained  superior  performance
and attitude, he was willing to consider reinstating  the  applicant's
rank of staff sergeant.  However, he indicated  that  because  of  the
seriousness of the applicant's  offense,  he  would  not  entertain  a
retroactive DOR, and  that  he  was  only  willing  to  reinstate  the
applicant's rank after one year had  elapsed  from  the  date  of  the
punishment.  After further investigation, the commander stated that he
discovered  he  could  not  reinstate  the  applicant's  rank  without
providing him a retroactive DOR.  However,  the  commander  maintained
his position that the offense did not merit  a  retroactive  DOR.   In
view of the commander's desire to eventually restore  the  applicant's
rank of staff sergeant, albeit one year from the date  of  punishment,
we  are  inclined  to  offer  the  applicant  the   intended   relief.
Therefore, we recommend that the applicant's records be  corrected  to
reflect that he was promoted to the grade of staff sergeant  effective
and with a DOR of 8 Apr 03.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that he  was  promoted  to
the grade of staff sergeant effective and  with  a  date  of  rank  of
8 Apr 03.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2003-01608 in Executive Session on 26 Aug 03, under the provisions  of
AFI 36-2603:

      Mr. John L. Robuck, Panel Chair
      Mr. Grover L. Dunn, Member
      Ms. Sharon B. Seymour, Member

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

     Exhibit A.  DD Form 149, dated 2 May 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 30 May 03.
     Exhibit D.  Letter, AFPC/DPPPWB, dated 24 Jun 03.
     Exhibit E.  Letter, SAF/MRBR, dated 11 Jul 03.
     Exhibit F.  Letter, applicant, dated 28 Jul 03.




                                   JOHN L. ROBUCK
                                   Panel Chair









AFBCMR BC-2003-01608




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 he was promoted to the
grade of staff sergeant effective and with a date of rank of 8 Apr 03.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency