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AF | BCMR | CY2004 | BC-2003-03080
Original file (BC-2003-03080.DOC) Auto-classification: Approved

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03080
            INDEX CODE:  133.03, 114.03
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  She be restored to the grade of staff sergeant with  an  effective  date
and date of rank of 1 Oct 01.

2.  It appears she is requesting that the  reference  to  action  under  the
Uniformed Code of Military Justice  (UCMJ)  be  removed  from  her  Enlisted
Performance Report (EPR) rendered for the period 5 Apr 01 through 7 May 02

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was provided squadron funded TDY orders to attend a medical  appointment
at Landstul GE from 8 - 9 Apr 02, but was determined  to  be  AWOL  for  not
being at Stuttgart on the 8 Apr 02.  Her TDY request was signed off  by  her
command, she filed a  travel  voucher  and  was  reimbursed  for  the  2-day
appointment, but was still deemed AWOL.

On 29 Apr 02, she was reduced in rank  to  the  grade  of  sergeant  with  a
forfeiture of $200 pay per month for 2 months.  Upon her arrival at her  new
duty  station  her  new  commander  issued  supplementary  UCMJ  action  and
restored her to the grade of staff sergeant with a new date of  rank  of  29
Aug 02.

In support of her request, applicant provided a copy of her  travel  orders,
her travel voucher summary,  email  communiqués,  letters  of  support,  her
Record  of  Nonjudicial  Punishment   Proceedings,   and   her   Record   of
Supplementary Action Under Article 15, UCMJ.  Her complete submission,  with
attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted her initial enlistment in the Regular Air  Force  on  7
Dec 95.  She was progressively promoted to  the  grade  of  staff  sergeant,
having assumed that grade effective and with a date of rank of 1 Nov 01.

On 19 Apr 02, the applicant was notified by her commander of her  intent  to
recommend nonjudicial punishment under Article 15 of the  UCMJ  for  failure
to go at the time prescribed to her appointed place of duty  on  8  Apr  02.
The applicant had  a  medical  appointment  at  Landstuhl  Regional  Medical
Center at  0930  on  Tuesday,  9  Apr  02.   Because  she  is  stationed  at
Stuttgart,  a  2-hour  drive  away,  she  requested  permission   from   her
supervisor to leave on Monday, 8 Apr 02, and stay overnight.   According  to
her supervisor, he granted the request after  informing  her  she  would  be
required to work Monday morning and leave Monday  afternoon.   According  to
the  applicant  and  a  witness  to  a  conversation  between  her  and  the
supervisor, she stated she would be out  of  the  office  all  day  on  both
Monday and Tuesday.  She did not go to work at all  on  Monday,  8  Apr  02.
She was advised of her rights in this matter  and  acknowledged  receipt  of
the notification on 24 Apr 02.   After  consulting  counsel,  the  applicant
waived her right to demand  trial  by  court-martial,  accepted  Article  15
proceedings, and provided a written presentation to her  commander.   On  29
Apr 02, after consideration of all the facts, her commander determined  that
she committed one or more of the offenses alleged and imposed punishment  on
the applicant.  She was reduce in grade to senior  airman  with  a  date  of
rank of 29 Apr 02, ordered to forfeit $200 pay per month for  2  months  and
was reprimanded.  The portion of her punishment  which  required  forfeiture
of  pay  was  suspended  until  28  Oct  02.   The  applicant  appealed  her
punishment to USAFE/CV.  Her appeal was denied.

On 29 Aug 02, her commander of her new unit mitigated  the  portion  of  her
nonjudicial punishment which called  for  reduction  to  senior  airman  to:
forfeiture of $700 pay per month for 2 months.   Forfeitures  in  excess  of
$400 pay per 2 months, suspended through 28 Feb 03.

The applicant's EPR profile is as follows:

            PERIOD ENDING    PROMOTION RECOMMENDATION

                 7 May 03         5
                 7 May 02         2 - Contested Report
                 4 Apr 01         5
                 4 Apr 00         5
                 4 Apr 99         5
                 4 Apr 98         5
                 4 Apr 97         4

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states applicant's  complaint  lies  not
in the process, but in the result.  By electing to  resolve  the  allegation
in the nonjudicial forum she placed the  responsibility  to  decide  whether
she committed the offense with her commander.  The commander  had  to  weigh
all the evidence before her to make her  decision  and  ultimately  resolved
the issue  against  the  applicant.   The  appellate  authority  agreed  and
provided the applicant no relief.  The applicant should not  prevail  absent
clear error or injustice.   When  evidence  of  an  error  or  injustice  is
missing, it is clear the BCMR process is not intended  to  second-guess  the
appropriateness of  field  commanders.   Congress  and  the  Secretary  have
designated the commander and the appeal  authority  the  responsibility  for
determining the appropriateness of an otherwise lawful punishment.  As  long
as they are acting within the scope of  authority  granted,  their  judgment
should not be disturbed just because others might  disagree.   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 JAJM evaluation is at Exhibit C.

AFPC/DPPPE recommends denial.  DPPPE states while the reduction  portion  of
the applicant's Article 15 was  mitigated,  the  comment  made  on  the  EPR
referencing her receiving an Article 15 is still a valid  statement  as  the
Article 15 itself was not set aside.  A report  is  considered  an  accurate
assessment when written unless documentation is provided proving  otherwise.
 DPPPE found no inaccuracies in the contested report.  The DPPPE  evaluation
is at Exhibit D.

AFPC/DPPPWB states should the Board set aside the  Article  15  and  restore
her rank to staff sergeant with her original date of rank of 1 Oct  01,  she
would become eligible for promotion consideration to technical sergeant  for
cycle 04E6.  Should the Board remove  the  contested  EPR,  no  supplemental
promotion consideration would be necessary since the EPR  was  not  used  in
past cycles.  The DPPPWB evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to  the  applicant  on  9
Jan 04 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of  an  injustice.   While  we  do  not  find  that  the  evidence
presented is sufficient  to  exonerate  the  applicant  of  any  guilt  with
respect to the offense for which the nonjudicial punishment was imposed,  we
do believe there are mitigating  circumstances  present  which  lead  us  to
believe the  punishment  imposed  was  excessively  harsh.   There  is  some
indication that the applicant's decision to depart  her  duty  location  may
have been the result of an honest misunderstanding.  In light  of  this  and
in consideration of  her  previous  and  subsequent  record  of  outstanding
performance, we believe some relief is appropriate in this case.   While  we
do not find removal of the Article 15 from the record  fitting,  it  is  our
opinion that suspension of the punishment would be an  appropriate  form  of
relief  based  on  the  evidence  provided.   We  note  that  the  applicant
requested her grade be restored with a date of rank and effective date of  1
Oct 01.  However, since a review of her grade history in the Personnel  Data
System reflects that her original promotion was actually on 1 Nov 01, it  is
our opinion that she should be restored to  staff  sergeant  on  that  date.
Accordingly, we do so recommend.

4.  Regarding her request that her EPR be  abolished  with  regards  to  her
Article 15 action, we do not find her assertions sufficiently persuasive  to
warrant a change to the contested EPR.  In this respect,  since  we  do  not
find removal of  the  Article  15  in  it's  entirety  appropriate,  we  are
inclined to agree with the Air Force office of primary  responsibility  that
the comment referencing the Article  15  and  the  assigned  ratings  remain
valid.  We are not persuaded by the evidence presented  that  the  contested
report is not an accurate depiction  of  her  performance  and  demonstrated
potential for  the  period  in  question.   Therefore,  in  the  absence  of
evidence to the contrary, we find no basis upon which to favorably  consider
that portion of her request.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that on 29 August 2002,  that  portion  of
the nonjudicial punishment under Article 15, UCMJ,  imposed  on  her  on  29
April 2002, which provided for reduction in grade from staff sergeant  (E-5)
to senior airman  (E-4), was set aside thereby restoring her  to  the  grade
of staff sergeant  (E-5),  with  a  date  of  rank  and  effective  date  of
1 November 2001.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2003-
03080 in Executive Session on 31 Mar 04, under the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Leslie E. Abbott, Member
      Ms. Renee M. Collier, Member

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

    Exhibit A.  DD Form 149, dated 8 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 31 Oct 03.
    Exhibit D.  Letter, AFPC/DPPPE, dated 1 Dec 03.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 15 Dec 03.
    Exhibit F.  Letter, SAF/MRBR, dated 9 Jan 04.




                             THOMAS S. MARKIEWICZ
                                             Chair

AFBCMR BC-2003-03080




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 APPLICANT, be corrected to show that on 29 August 2002, that
portion of the nonjudicial punishment under Article 15, UCMJ, imposed on
her on 29 April 2002, which provided for reduction in grade from staff
sergeant (E-5) to senior airman  (E-4), was set aside thereby restoring her
to the grade of staff sergeant (E-5), with a date of rank and effective
date of 1 November 2001.






                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency

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