RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00281
            INDEX CODE:  131.05, 126.04

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED: YES


MANDATORY CASE COMPLETION DATE:  25 MAY 2006


___________________________________________________________________

APPLICANT REQUESTS THAT:

His rank of staff sergeant (E-5) be reinstated to the original date
of rank (DOR) and his Article 15 (3 Feb 02) which the reduction  in
grade was based on be set aside.

___________________________________________________________________

APPLICANT CONTENDS THAT:

His commander made  untruthful  statements  on  the  AF  Form  3070
(Record of Nonjudicial Punishment Proceedings) and there are  legal
and equitable issues noted in his attorney’s appeal letter.

In  support  of  his  appeal,  applicant  submitted  his   personal
statement; a copy  of  his  Area  Defense  Counsel’s  (ADC)  appeal
letter, dated 6 Feb 02; Security Police  OI  31-202;  his  civilian
counsel’s  statement,  dated  28  May  02,  and  other   supporting
documents.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Based on available records, applicant served  in  the  Regular  Air
Force from 12 Jun 75 until he was released  from  active  duty  and
transferred to the Air Force Reserve on 22 May 78.   Prior  to  the
events under review, applicant was promoted to the grade  of  staff
sergeant with an effective date and date of rank of 29 Sep 87.

On 28 Oct 01, applicant was recalled to active duty.  On 31 Jan 02,
applicant received non-judicial punishment for willfully failing to
follow proper turn-in and clearance procedures for  a  loaded  M-16
rifle, on or about 12 Jan 02.  On 3 Feb 02, after  consulting  with
counsel, applicant waived his  right  to  demand  trial  by  court-
martial and accepted the nonjudicial punishment.   He  submitted  a
written presentation and made  a  personal  appearance  before  his
commander.  His commander determined he had committed  the  offense
alleged and imposed punishment consisting of reduction to the grade
of senior airman, with a new date of rank of 3 Feb 02.  He appealed
the punishment; however, the appeal was denied.

On 28 Apr 03, applicant was demobilized and returned to his Reserve
unit.  He is currently serving in  the  grade  of  staff  sergeant,
having been promoted to that grade on 1 Mar 03.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM addressed the applicant’s  request  in  regards  to  the
31 Jan 02 Article 15 and recommended no  relief  be  granted.   The
applicant was accused  of  dereliction  of  duty  in  violation  of
Article 92, UCMJ.  After consulting with defense counsel, applicant
accepted non-judicial punishment rather  than  demanding  trial  by
court-martial.    Following   consideration   of   the    evidence,
applicant’s commander determined  that  he  committed  the  offense
alleged and imposed punishment of reduction to the grade of  senior
airman (E-4).  Applicant appealed the decision,  and  his  civilian
defense attorney wrote  an  appeal  memorandum  on  behalf  of  the
applicant.  The appeal was denied and the record was found  legally
sufficient.

JAJM indicates that nonjudicial punishment is authorized by Article
15, UCMJ, 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.  Service members first must be notified
by their commanders of the  nature  of  the  charged  offense,  the
evidence supporting the offense, and of the commander’s  intent  to
impose nonjudicial punishment.  Commanders  may  recommend  that  a
superior  commander  make  findings  and  impose  punishment  under
Article 15, UCMJ.  The service  member  may  then  consult  with  a
defense  counsel  to  determine  whether  to   accept   nonjudicial
punishment proceedings or demand trial by court-martial.  Accepting
the proceedings is simply a choice of forum; it is not an admission
of guilt.

JAJM  states  by  electing  to  resolve  the  allegation   in   the
nonjudicial  forum,  applicant  vested  his  commander   with   the
responsibility to decide whether he  had  committed  the  offenses.
The  commander  had  to  weigh  all  the  evidence,  including  the
applicant’s assertions, and make his decision.  In this  case,  the
commander concluded that applicant was derelict in the  performance
of his duties.  There was sufficient evidence for the commander  to
determine the offense had been committed.  Applicant contends then,
as he does now, that he was not properly trained and  certified  to
perform armorer duties.  However, when he responded to the offer of
nonjudicial punishment the applicant admitted in  writing  that  he
was derelict and there was no excuse  for  his  action.   Applicant
indicates he did not know specialized training was required nor was
he aware of any certification until after the accident.

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.

A complete copy of the JAJM evaluation is at Exhibit D.


___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicated in his response that the position of armorer is
an additional duty and requires additional  training.   He  further
explained  the  circumstances  surrounding   the   incident   which
subsequently led to his Article 15 and reduction in grade.

Applicant’s complete response is at Exhibit E.

___________________________________________________________________

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.   The  applicant's
complete submission was thoroughly  reviewed  and  his  contentions
were  duly  noted.   However,  we  do  not  find  the   applicant’s
assertions or his supporting documentation sufficiently  persuasive
to override the rationale provided by the Air Force Legal  Services
Agency.  The commander had the discretionary  authority  to  impose
nonjudicial punishment under Article 15, UCMJ,  when  he  concluded
that  reliable  evidence  existed  to  indicate  an   offense   was
committed.   When  offered  the  Article  15,  applicant   had   an
opportunity to establish his innocence by demanding trial by court-
martial.  However, he chose not to pursue this avenue and  accepted
the Article 15 instead.  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.
Applicant has not provided any evidence  to  sufficiently  convince
the Board that the commander abused his discretionary authority  in
imposing the Article 15 punishment or that the  Article  15  action
was contrary to  the  governing  instruction.   Therefore,  in  the
absence of evidence to the contrary, we find no compelling basis to
recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and  it  has  not
been shown that a personal appearance with or without counsel  will
materially  add  to  our  understanding  of  the  issues  involved.
Therefore, the request for a hearing is not favorably considered.

___________________________________________________________________

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 AFBCMR Docket  Number
BC-2005-00281 in Executive  Session  on  26  May  2005,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Kathy L. Boockholdt, Member
      Ms. Renee M. Collier, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Jan 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 11 Apr 05.
    Exhibit D.  Letter, SAF/MRBR, dated 22 Apr 05.
    Exhibit E.  Letter, Applicant, dated 19 May 05.




                                   THOMAS S. MARKIEWICZ
                                   Chair