RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02313
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His former rank of sergeant (E-4) be restored.

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APPLICANT CONTENDS THAT:

The punishment he received as a result of an Article  15  was  unjust.
He had a new commander  who  disregarded  the  recommendation  of  the
previous commander which would have given him 45 days  of  extra  duty
and pay reduction for a period, but instead he got 45  days  of  extra
duty, and lost pay and a stripe by reducing his rank from sergeant  to
airman first class.

The reduction in  rank  has  negatively  impacted  his  post-discharge
employment efforts.

Applicant did not provide any documentation in support of the  appeal.
Applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  28  May  1986  in  the
grade of airman basic for a period of four years.  Prior to the  event
under review, he was progressively promoted to  the  grade  of  senior
airman (E-4), effective and with a date of rank of 28  May  1989,  and
was thereafter appointed a noncommissioned officer (sergeant/E-4).  He
received three Airman Performance  Reports  (APRs)  and  two  Enlisted
Performance Reports (EPRs), closing  27 May  1987,  27  May  1988,  17
January 1989, 17 January 1990, and  17  January  1991,  in  which  the
overall evaluations/promotion recommendations were “9,” “9,” “9,” “3,”
and “3,” respectively.

On 30 September 1991, the applicant was offered nonjudicial punishment
for failure to go to his  assigned  place  of  duty  on  or  about  27
September 1991.  On 1 October 1991,  after  consulting  with  military
defense counsel, the applicant waived his right  to  demand  trial  by
court-martial and  accepted  nonjudicial  punishment.   He  made  both
written and personal presentations to his commander.   On  21  October
1991, having considered the evidence and the applicant’s  response  to
the Article 15, his commander determined the applicant  committed  the
offense alleged, and imposed punishment consisting of a reduction from
sergeant to airman first class (E-3), forfeiture of $150 of  his  pay,
and  fourteen  days  of  extra  duty.   The  applicant  appealed   the
punishment and the appellate authority denied the appeal on 1 November
1991.  On 12 November  1991,  the  record  was  examined  by  a  judge
advocate and was determined to be legally sufficient.

Pursuant to his 20 September  1991  request,  which  was  approved  on
15 October 1991, the applicant was honorably discharged in  the  grade
of airman first class on 26 November 1991 under the provisions of  AFR
39-10, Voluntary-Miscellaneous Reasons.  He served 5 years,  5  months
and 29 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM states nonjudicial punishment is permitted by  Article  15,
UCMJ (10 U.S.C. 815), and governed by the  Manual  for  Courts-Martial
and Air Force Instruction 51-202.  This procedure  permits  commanders
to dispose of certain offenses without trial by  court-martial  unless
the service member objects.  Accepting the  proceedings  is  simply  a
choice of forum (service members have the right  to  demand  trial  by
court-martial instead); it is not an admission of guilt.   Nonjudicial
punishment does not constitute a criminal conviction.  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 applicant does not contest the merits of the  Article  15  action.
What he, essentially, requests  is  that  his  own  assessment  of  an
appropriate punishment be substituted, 13 years after  the  fact,  for
that  of  the  commander  who  was   legally   entrusted   with   that
responsibility at the time.  That commander was in the  best  position
to assess the evidence and determine the most  appropriate  punishment
and there is no legal basis  to  set  aside  his  determination.   The
punishment was well within the range of sentences  the  commander  was
authorized to impose.  There is no evidence in  the  record  that  the
punishment imposed was unduly harsh or an  abuse  of  the  commander’s
discretion.  The commander’s actions, including the  punishment  meted
out, have withstood appellate scrutiny and have been determined to  be
legally and factually sufficient.  Absent clear  error  or  injustice,
the applicant should not prevail.  Therefore, they recommend no relief
be granted.  A complete copy of the evaluation is at Exhibit C.

AFPC/DPPPWB  defers  to  JAJM’s  recommendation.   A  copy  of   their
evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 October 2004, copies of the Air Force evaluations were forwarded
to the applicant for review and response within 30 days.  As  of  this
date, this office has received no response.

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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 error or injustice.  After reviewing the evidence  of
record, we are not persuaded that the applicant’s records are in error
or that he has been the victim of an injustice.  His  contentions  are
noted; however, in our opinion, the detailed comments provided by  the
appropriate Air Force offices adequately  address  those  allegations.
Therefore, we agree with opinions and recommendations of the Air Force
and adopt their rationale as the basis for  the  conclusion  that  the
applicant has not been the victim of an error or  injustice.   In  the
absence of evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.

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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  this  application  in
Executive Session on 1 February 2005, under the provisions of AFI  36-
2603:

                       Mr. Hinton Roscoe Jr., Panel Chair
                       Mr. Garry G. Sauner, Member
                       Mr. Joseph D. Yount, Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2004-02313 was considered:

      Exhibit A. DD Form 149, dated 23 Jul 04.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 24 Sep 04.
      Exhibit D. Letter, AFPC/DPPPWB, dated 4 Oct 04.
      Exhibit E. Letter, SAF/MRBR, dated 15 Oct 04.




                             ROSCOE HINTON JR.
                             Panel Chair