RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-01666

                 COUNSEL:  None

      XXXXXXX          HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15, Uniform Code of Military Justice (UCMJ), be set aside,
reinstatement of his grade of senior  master  sergeant  and  all  back
retirement pay or his grade restored to senior master  sergeant  (E-8)
on his 30th anniversary.
_________________________________________________________________

APPLICANT CONTENDS THAT:

On 11 February 1988, he received Article 15 for  failure  to  obey  an
order or regulation.  The punishment was unjust in that there  was  no
offense committed.  He went to the appointment that  he  was  punished
for missing and he is attaching  statements  from  witnesses  to  that
effect.

He should have been retired in the pay grade of E-8 rather  than  E-7.
In addition, his pay grade should have been reinstated to E-8 when his
active duty plus  time  on  the  retired  list  reached  30  years  in
accordance with (10 USC 8964). He has been punished for 16  years  for
an offense that never even occurred.

In support of his  application,  he  provides  a  personal  statement,
statements from witnesses, Art 15 statements, letters of appreciation,
and an award nomination package.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 25  May  1966.  He  was
progressively promoted to the grade of senior  master  sergeant  on  1
September 1985. Applicant was retired with an honorable  discharge  in
the grade of master sergeant.
.
On 17 June 1987, the commander imposed  nonjudicial  punishment  under
Article 15, UCMJ, on the applicant, then an SMSgt for a  violation  of
Article 111,  UCMJ,  Drunken  or  reckless  operation  of  a  vehicle,
aircraft or vessel.  The punishment imposed on  the  applicant  was  a
reduction to master sergeant, forfeiture of $866.00 per month for  two
months, and a reprimand.  This Article 15 called for the reduction  in
rank to be suspended until       12  December  1987,  at  which  time,
unless suspension is  sooner  vacated  it  will  be  remitted  without
further action.

On 29 December 1987,  the  commander  imposed  nonjudicial  punishment
under Article 15, UCMJ, on the applicant again, then an  SMSgt  for  a
violation of Article 92,  UCMJ,  for  Failure  to  obey  an  order  or
regulation.  Applicant was alleged to  have  wrongfully  disobeyed  an
order to report for a urinalysis on 18 or 19 December 1987, as ordered
to do.  After consulting with defense counsel,  the  applicant  waived
his right to demand trial by court-martial  and  accepted  nonjudicial
punishment.  He did not request a personal appearance before  Maj  Gen
S__, the  authority  imposing  the  punishment.   He  made  a  written
presentation to the general. On   22 January 1988, the  general  found
the applicant had committed the offense alleged and imposed punishment
consisting of a reduction in rank to master sergeant and forfeiture of
$500.00  pay  per  month  for  two  months.   Applicant  appealed  the
general’s  decision   to   impose   nonjudicial   punishment.    After
considering all the matters presented on appeal,  on  22  March  1988,
CINCPACAF/CC, denied the appeal.

On 4 May 1988, a grade determination by the Secretary of the Air Force
Personnel Council concluded  that  the  applicant  had  satisfactorily
served in the grade of master sergeant (E-7) with an effective date of
rank of 11 February 1988 and he was permanently retired in that  grade
on 31 May 1988  after  serving  22  years  of  total  active  military
service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the request and states given  all  the  undisputed
facts and circumstances, a  reduction  in  rank  for  the  applicant’s
conduct seems harsh.  Nonetheless, the Article 15 should only  be  set
aside if the  applicant  was  not  guilty  of  the  offense.  While  a
different fact finder may have come to  a  different  conclusion,  the
commander’s findings are neither arbitrary nor capricious  and  should
not be disturbed.  No evidence submitted by the  applicant  exonerates
him, or mandates the relief requested.

AFLSA/JAJM complete evaluation is attached at Exhibit C.

AFPC/DPPPWB recommended denial  for  reinstatement  to  the  grade  of
SMSgt, stated that AFLSA/JAJM has reviewed  this  case  and  found  no
evidence of error or injustice, and recommended denial of  applicant’s
request  to  set  aside  the  Article  15.   They  concur  with  their
recommendation.  Should the Board decide to set aside the  Article  15
and reinstate applicant’s rank to SMSgt, his date of rank would  be  1
September 1985.

AFPC/DPPPWB complete evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluations and stated that it  is  obvious
by reading the memorandum  that  Military  Associate  Chief  sees  the
injustice and illogic in the administration of this  Article  15.  The
assistant chief also sees illogic in having everyone show up  at  1015
hours on Saturday and the excessiveness of the  punishment.   However,
“she” (sic) just cannot bring herself to recommend setting  aside  the
injustice.

The reason he waited all this time to  file  his  appeal  is  that  he
believed he would encounter someone who could  not  bring  himself  to
recommend correcting this injustice.  Moreover, believe him, this  has
burned his soul every day for the last 16 years.

Regardless of what the procedures called  for,  he  did  not  have  an
opportunity to plead his case before the general.  He  was  called  by
the attorney representing him and was told  to  be  at  the  general’s
office on a certain date and time in dress uniform.  When  he  arrived
there he was told that it was a mistake and to report to the  squadron
commander’s office for imposition of the Article 15  punishment.   His
attorney was not at the general’s office nor was he  at  the  squadron
commander’s office to represent him.  Nor was  any  of  his  witnesses
there to verify his story.  AlC C__ had already rotated to the  states
and the airman working in the hospital who submitted a  statement  was
not called.  Punishment was imposed by Col M__  who  was  driving  the
effort to punish him.  Had he known the  tester  would  only  work  45
minutes that day, he would have been there earlier.   He  believes  he
had all day to make the appointment.

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 not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of an error or injustice warranting  setting  aside  the
Article 15 should be set aside and retroactively reinstate  his  grade
of senior master sergeant.  Applicant’s contentions  are  duly  noted;
however, we do not find these uncorroborated  assertions,  in  and  by
themselves, sufficiently persuasive to override the rationale provided
by the Air Force.  The evidence reflects that the commander  initiated
Article 15 action based on information he determined  to  be  reliable
and  that  the  nonjudicial  action  was  properly  accomplished   and
applicant was afforded all rights granted by statute  and  regulation.
We have not been convinced, by  his  submission,  that  his  commander
abused his discretionary authority when  he  imposed  the  nonjudicial
punishment, and since we find no abuse of that authority, we  find  no
reason  to  overturn  the  commander’s  decision.   In  view  of   the
foregoing, we find no  basis  upon  which  to  grant  the  applicant’s
requests regarding this issue.

4.    Notwithstanding the above, sufficient relevant evidence has been
presented to demonstrate the existence of injustice.  The evidence  of
record indicates  that,  subsequent  to  his  receipt  of  nonjudicial
punishment under Article 15,  a  Secretarial  determination  was  made
reflecting the applicant had not served satisfactorily in  the  higher
grade of senior master sergeant and would not be  advanced  under  the
provisions 10 USC 8964.  After reviewing the evidence  of  record  and
noting applicant’s overall record, we believe that some form of relief
is justified.  In this respect, we note the Air Force  Legal  Services
concedes a reduction in rank for the applicant's conduct seems  harsh;
the evidence available to us today does tend to show  that  the  order
was not specific or clear and that the applicant, and  other  squadron
members, may not have had knowledge of the order.  We also  note  that
the applicant’s overall  record  of  performance  of  his  duties  was
superior for over 20 years..  In  view  of  these  considerations,  we
believe that  a  permanent  reduction  in  grade  from  senior  master
sergeant to master sergeant  was  excessively  harsh  and,  therefore,
unjust.  Accordingly, we believe proper and  fitting  relief  in  this
case would be to restore the applicant to the grade of  senior  master
sergeant when his active service plus his service on the retired  list
totals 30 years. Accordingly, we recommend the applicant’s records  be
corrected to the extent set forth below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be  corrected  to  show  that  on  4  May  1988
competent authority determined that the highest grade he  satisfactory
served on active duty was senior master sergeant and on 25 May 1996 he
was advanced on the  retired  list  to  the  grade  of  senior  master
sergeant.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2004-
01666 in Executive Session on 24 February 2005, under  the  provisions
of AFI 36-2603:


            Mr. Michael J. Novel, Panel Chair
            Mr. John E. Pettit, Member
            Ms. Carolyn B. Willis, Member

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


      Exhibit A. DD Form 149, dated 14 Jun 04, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 27 Aug 04.
      Exhibit D. Letter, AFPC/DPPPWB, dated 21 Sep 04.
      Exhibit E. Letter, SAF/MRBR, dated 1 Oct 04.
      Exhibit F. Applicant’s Response, 21 Oct 04.




            MICHAEL J. NOVEL
            Panel Chair




AFBCMR BC-2004-01666




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, XXXXXXX, be corrected to show that on 4
May 1988 competent authority determined that the highest grade he
satisfactory served on active duty was senior master sergeant and on
25 May 1996 he was advanced on the retired list to the grade of senior
master sergeant.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency