RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-01202
                                        INDEX CODE:  126.04
                                        COUNSEL:  NONE

                                        HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  14 October 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonjudicial punishment under Article 15 be removed from his records  and
his 04E7 promotion consideration be reinstated.  By amendment at Exhibit  F,
applicant requests his EPR for the period 1 October 2003 through  15  August
2004 be changed to reflect a promotion recommendation of “5.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

For the past two consecutive years he  has  suffered  a  constant  chain  of
injustices against his career.  He had a stellar career and  was  recognized
by the former active duty senior leadership as a  reliable  “TOP”  performer
up until his unit blended with the local guard unit and the  standards  were
not fair and equitable.  He was charged and punished  for  offenses  he  did
not commit as an example of maintaining  discipline  and  order,  which  has
negatively  impacted  his  career  and  future  goals.   He   was   unjustly
prosecuted in a negative environment conducive to  retribution,  retaliation
that has contradicted the focus of basic  Air  Force  core  values  and  the
courage to do the right thing.  He has  asked  his  chain-of-command  for  a
reassignment but was denied because he “was too valuable”  to  lose  due  to
his  experience.   His  commanding  officer  has  continually  remained   in
opposition  to  his  immediate  and   first   line   supervisors’   positive
recommendations and support for him.  The Article 15 action  that  justified
his commander’s  decision  to  non-select  him  for  continued  service  and
promotion ineligibility for 04E7 was  a  string  of  convoluted  actions  of
continued injustices against his career and character.  He was  not  serving
on a control roster and has been repeatedly punished  for  offenses  he  did
not commit.  He is humbly defending his right and privilege to  continue  to
honor his commitment as a noncommissioned officer in the United  States  Air
Force.

In  support  of  his  appeal,  applicant  provides  a  personal   statement,
documents associated with his Article 15, a copy  of  the  Aircraft  94-0285
Impoundment for Unaccounted  Hardware.   Security  Forces  Incident  Report,
copies of his Letters/Certificates  of  Appreciation,  Enlisted  Performance
Reports (EPRs) for the period beginning 24 June 1997 and  ending  15  August
2004  and  a  copy  of  his  individual  report.   His   application,   with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The Military Personnel Database  (MilPDS)  indicates  the  applicant  has  a
Total Active  Federal  Military  Service  Date  of  4  June  1987.   He  has
continually served on active duty and, prior to  the  events  under  review,
was progressively promoted to the grade of technical  sergeant  (E-6).   His
date of separation is 22 September 2006 and he has a  High  Year  of  Tenure
date of 4 June 2011.

The following is a resume of  his  last  six  Enlisted  Performance  Reports
(EPRs):

      PERIOD ENDING          PROMOTION RECOMMENDATION

    20 Jan 01                     5
    30 Sep 01                     5
    30 Sep 02                     5
    30 Sep 03                     4
    15 Aug 04*                    4
    27 Jun 05                     5

* Denotes contested report.

MilPDS reflects his eligibility status as “1P” which  denotes  “Eligible  to
reenlist, second-term or career airmen  with  less  than  19  years’  TAFMS,
selected by the commander under the  SRP,  and  either  13  months  or  less
remain before original ETS, or the airmen are serving  on  an  extension  of
enlistment.”

On 24 March 2004, the applicant’s commander imposed  nonjudicial  punishment
on the applicant for violation of  Article  89,  for  disrespect  towards  a
superior commissioned officer; Article 90, willfully disobeying  a  superior
commissioned  officer;  and  Article  92,  dereliction   of   duty.    After
consulting with counsel, the applicant waived  his  right  to  court-martial
and accepted the nonjudicial punishment.   Applicant  requested  a  personal
appearance  with  the  imposing  authority/commander.   He  was  given   the
opportunity to provide a  written  presentation  to  his  commander.   After
considering the applicant’s written presentation, the  commander  determined
that he committed the alleged offenses and imposed punishment consisting  of
a reduction in grade to staff sergeant, suspended until  23  September  2004
when, unless sooner vacated, it would be remitted  without  further  action,
forfeiture of $1395.00 pay for two  months,  suspended  until  23  September
2004, 45 days of extra duty  and  a  letter  of  reprimand.   The  foregoing
proceedings were reviewed and found legally sufficient by  the  Staff  Judge
Advocate on 9 April 2004.

The remaining relevant facts pertaining to his  nonjudicial  punishment  are
contained in the letter prepared by the appropriate office of the Air  Force
at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application  be  denied.   JAJM  states  that  the
applicant has provided no evidence of a clear error or injustice related  to
the nonjudicial punishment action.  The applicant’s main  complaint  centers
on his Article 15 punishment for the infractions that he claims he  did  not
commit.  There is nothing in the record to suggest that the commander  erred
in finding him legally or factually responsible for these  violations.   The
JAJM evaluation is at Exhibit C.

AFPC/DPPPWB recommends the application be denied.  DPPPWB advises  that  the
applicant tested for promotion to MSgt for cycle 04E7 (promotions  effective
August 2004 - July 2005) on 30 March 2004; however, receipt of  the  Article
15 automatically rendered him ineligible for  promotion  consideration.   He
was considered for promotion to  MSgt  during  cycle  05E7  and  rendered  a
nonselect.  The DPPPWB evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states he strongly disagrees with  the  AFLSA/JAJM  recommendation
because it does not identify or address the injustices that  have  occurred.
He states he did not disobey a direct order from his supervisor and did  not
order or  supervise  the  repair  of  the  engine.   He  chose  non-judicial
punishment  because  he  felt  that  based  on  merit  his  commander  would
immediately exonerate him from any and all accused wrong  doing.   Applicant
states his commander was not  acting  within  the  scope  of  his  authority
because he did not act in the interest of morale and discipline  as  an  “on
the  scene”  commander  because  the  incident  had  been  in  dispute   and
mitigating actions intentionally ignored.  He  has  tried  to  resolve  this
incident through proper channels and through his  chain-of-command  but  has
been repeatedly over punished and unjustly discriminated.  Applicant  states
his Enlisted Performance Report which closed out  15  August  2004  was  not
submitted in a timely fashion to his Military Personnel  Flight.   This  EPR
was rated an overall “5” then downgraded to a “4” then downgraded to  a  “3”
over 9 months after  the  report  was  submitted.   The  Evaluation  Reports
Appeal Board is currently reviewing this EPR.  The applicant’s letter,  with
attachments 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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  We find no evidence of error in this  case
and after thoroughly reviewing the documentation the applicant submitted  in
support of his appeal, we do not believe he has suffered from an  injustice.
 Evidence has not been presented which would lead us  to  believe  that  the
nonjudicial punishment, imposed on 24 March 2004, was  improper.   In  cases
of this nature, we are not inclined to disturb the judgments  of  commanding
officers absent a strong showing of abuse of  discretionary  authority.   We
have  no  such  showing  here.   The  evidence  indicates  that  during  the
processing of this Article 15, the applicant  was  offered  every  right  to
which he was entitled.  He consulted with  counsel,  and  submitted  written
matters for review  by  the  imposing  commander.   The  imposing  commander
determined the applicant did commit  the  offense  and  imposed  punishment.
There is nothing in  the  evidence  provided,  other  than  the  applicant’s
assertions, which would lead us to  believe  the  actions  by  the  imposing
commander were inappropriate or that he did not have access to  all  of  the
appropriate information necessary  on  which  to  base  his  decision.   The
applicant has not provided any evidence showing the  imposing  commander  or
the reviewing authority  abused  their  discretionary  authority,  that  his
substantial rights were violated during the processing of  this  Article  15
punishment, or that the punishment exceeded the maximum  authorized  by  the
UCMJ.  Therefore, based on the available evidence  of  record,  we  find  no
basis upon which to favorably consider his request that the  Article  15  be
removed  from  his  records  and  his  04E7   promotion   consideration   be
reinstated.

4.  We considered the applicant’s request that the report closing 15  August
2004 be upgraded to an overall promotion recommendation of “5.”   The  Board
noted the statements provided  by  the  applicant’s  current  commander  and
other individuals who were assigned  to  the  same  duty  location  and  had
professional  contact  with  the  applicant.   The  applicant’s  good   work
performance is not being disputed and is reflected in the contested  report;
however, evaluation reports evaluate the “whole person,” to include  on  and
off duty conduct.  In view of our findings with  respect  to  the  contested
nonjudicial punishment  and  absent  evidence  by  the  applicant  that  his
evaluators on the  contested  report  were  unable  to  render  an  unbiased
assessment of his performance, we find no basis to  recommend  granting  his
request to change his EPR to reflect a promotion recommendation of “5.”

5.  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 probable 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  in  Executive  Session  on  9
November 2005 under the provisions of AFI 36-2603:

            Mr. Christopher D. Carey, Panel Chair
            Mr. James A. Wolffe, Member
            Ms. Barbara R. Murray, Member

The following documentary  evidence  for  AFBCMR  Docket  No.  05-01202  was
considered:

    Exhibit A.  DD Form 149, dated 8 Apr 05 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 15 Aug 05.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 7 Sep 05.
    Exhibit E.  Letter, SAF/MRBR, dated 23 Sep 05.
    Exhibit F.  Letter, Applicant, dated 26 Sep 05 w/atchs.





                                   CHRISTOPHER D. CAREY
                                   Panel Chair