RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02266
            INDEX CODE:   126.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  23 January 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Her Article 15 imposed on 16 May 2003 be expunged.

2.  Her original date of rank  (1 June  1999)  to  technical  sergeant
(TSgt) be reinstated.

3.  She be reimbursed for the fines.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She believes the punishment did not fit the accused crime.  There  was
no reason to mislead or lie on the weigh-in.  She has  never  been  on
the Weight Management Program  (WMP)  and  the  most  she  would  have
received is a monthly weigh-in and placed on the WMP.  She  was  never
placed on the WMP, nor was her weight monitored.   The  other  accused
member, who actually documented the weigh-in originally  was  punished
the same, but during clemency his original date of rank was returned.

In support of the appeal, applicant submits a  copy  of  her  AF  Form
3070, Record of Nonjudicial Punishment Proceedings, package and a copy
of her Enlisted Performance Reports.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 12  March  1985  for  a
period of four years.  She was progressively promoted to the grade  of
senior airman on 12 March 1988, staff sergeant on 1 November 1993, and
technical sergeant on 1 June 1999.

The following is a resume  of  the  applicant’s  Enlisted  Performance
Report (EPR) ratings since 1994:

      PERIOD ENDING    EVALUATION OF POTENTIAL

        11 Dec 94                 5
        11 Dec 95                 5
        11 Dec 96                 5
        11 Dec 97                 5
        31 Dec 98                 5
        31 Dec 99                 5
        31 Dec 00                 5
         4 Oct 01                 5
         4 Oct 02                 5
        18 May 03                 4
        18 May 04                 5
        18 May 05                 5

On 5  May  2003,  the  commander  offered  the  applicant  nonjudicial
punishment under Article 15, Uniform Code of Military Justice  (UCMJ),
for  two  offenses:   Conspiracy  with  another  military  member   to
inaccurately record her weight as 124 pounds during the squadron weigh-
in (a violation of Article 81, UCMJ); and making a false statement  to
a master sergeant four months later that she weighed  124  pounds  and
did not conspire to falsely record her true  weight  (a  violation  of
Article 107, UCMJ).  After consulting counsel, the  applicant  elected
to accept nonjudicial punishment and made a personal appearance before
her commander as well as submitted  a  written  presentation  for  his
consideration.  On 16 May 2003, the commander determined the applicant
had committed both the offenses and imposed punishment consisting of a
reduction in rank to staff sergeant, forfeiture  of  $250.00  pay  per
month for two months (suspended until 15 November 2003),  15  days  of
extra duty, and a reprimand.  The applicant appealed.  On 23 May 2003,
the commander denied her appeal.  On 15  August  2003,  the  commander
mitigated her punishment by  changing  the  reduction  in  rank  to  a
forfeiture of $300.00 pay per month for  two  months.   In  accordance
with AFI 51-202, the applicant’s original date of  rank  to  technical
sergeant was lost and her new  date  of  rank  was  the  date  of  the
mitigation action (15 August 2003).

_________________________________________________________________

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
(MCM) 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.  The  service  member  may  consult  with  a  defense  counsel  to
determine whether to  accept  nonjudicial  punishment  proceedings  or
demand  trial  by  court-martial.   Accepting  nonjudicial  punishment
proceedings is simply a choice of forum; it is  not  an  admission  of
guilt.

A member  accepting  nonjudicial  punishment  proceedings  may  submit
written matters to and have a hearing with the commander.  The  member
may have a spokesman at the hearing, may request witnesses appear  and
testify, and may present evidence.   The  command  must  consider  any
information offered by the member and must be  convinced  by  reliable
evidence  that  the  member  committed  the  offense  before  imposing
punishment.   Members  who   wish   to   contest   their   commander’s
determination or the severity of the punishment imposed may appeal  to
the next higher commander.  The appeal authority  may  set  aside  the
Article 15, set aside the punishment, decrease its severity,  or  deny
the appeal.  Nonjudicial punishment does  not  constitute  a  criminal
conviction.

The applicant has failed to provide sufficient evidence of a  probable
material  error  or  injustice.   Commanders  considering  nonjudicial
punishment are to consider the nature of the offense,  the  record  of
the service member, the needs for good order and discipline,  and  the
effect of good order and discipline on  the  service  member  and  the
service member’s record.  MCM, Part V, para  1d(1).   The  applicant’s
commander having applied this standard to the individual circumstances
of  the  applicant’s  case  determined  that  Article  15  action  was
warranted.  The applicant waived her  right  to  be  tried  by  court-
martial and chose instead to accept Article  15  proceedings,  placing
the determination of guilt or innocence, as well as punishment in  her
commander’s hands.  The commander weighed all the evidence before  him
in making that decision.  The commander ultimately resolved the  issue
of the alleged misconduct against the applicant.

The applicant contests the merits of the entire Article 15 action, but
fails to provide any  new  or  compelling  information  that  was  not
available to her at the time of the imposition of the Article 15.  The
applicant has simply failed to provide  sufficient  justification  for
overriding  her  commander’s  determination  that  she  committed  the
offenses.  This same commander later mitigated the  punishment  (which
returned the applicant’s grade of TSgt to her but with a new  date  of
rank).  At that time, he was  intimately  familiar  with  all  of  the
evidence in the case and with the  companion  Article  15  action  the
applicant mentions.  He had the opportunity to simply  set  aside  the
reduction in rank, which would have restored the applicant’s  original
date of rank to TSgt, but  chose  not  to  exercise  that  option  but
elected mitigation instead.

In conclusion, the applicant has failed to present evidence  that  her
commander abused his  authority  or  discretion  or  demonstrated  the
existence of any error or present facts and  circumstances  supporting
an  injustice.   Therefore,  they  recommend  denial  of   applicant’s
request.

A complete copy of the evaluation is at Exhibit C.

AFPC/DPPPWB states that they defer to AFLSA/JAJM’s recommendation.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9  September  2005,  copies  of  the  Air  Force  evaluations  were
forwarded to the applicant for review and response within 30 days.  As
of this date, no response has been received by this office.

_________________________________________________________________

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  warranting  some  form  of  relief.   After
reviewing the evidence of record, while the issuance of the  contested
Article 15 may have been proper, we believe that  the  punishment,  in
its totality, was  excessive.   In  this  regard,  we  note  that  the
applicant’s commander just after issuing the Article 15  and  becoming
more familiar with all of the evidence mitigated the  portion  of  the
punishment pertaining to the reduction in  grade.   In  view  of  this
action and noting the numerous supporting letters,  one  of  which  is
from her  supervisor,  we  are  of  the  opinion  that  depriving  the
applicant of her time in grade was excessively harsh.   Therefore,  we
believe that based on the totality  of  the  evidence  presented,  the
appropriate punishment should have been a forfeiture of $300  pay  per
month for two months.  We considered voiding  the  Article  15,  which
would have resulted in reimbursement of fines paid;  however,  we  are
not convinced that the applicant is innocent of the offenses cited  as
bases for the imposition of the punishment.  Therefore,  her  requests
that the contested Article 15 be expunged from  her  records  and  all
rights, privileges and property of which she was deprived be  restored
are not favorably considered.  Accordingly, it is our opinion that the
applicant’s records should be corrected to the extent indicated 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  15  August  2003,
competent authority set aside so much of  the  nonjudicial  punishment
imposed on 16 May 2003 under Article 15, UCMJ, pertaining to reduction
in grade from technical  sergeant  to  staff  sergeant,  resulting  in
restoration of her effective date and date of rank of 1 June 1999 as a
technical sergeant.

It  is  further  recommended  that  she   be   provided   supplemental
consideration for promotion to the grade of master  sergeant  for  all
appropriate cycles beginning with cycle 03E7, using  her  test  scores
for cycle 06E7.

If  AFPC  discovers  any  adverse  factors  during  or  subsequent  to
supplemental consideration that are separate and apart, and  unrelated
to the issues involved in this application, that would  have  rendered
the applicant ineligible for the promotion, such information  will  be
documented and presented to the board for a final determination on the
individual's qualification for the promotion.

If supplemental promotion consideration results in the  selection  for
promotion to the higher grade, immediately after  such  promotion  the
records shall be corrected to show that applicant was promoted to  the
higher grade on the date  of  rank  established  by  the  supplemental
promotion and that applicant is entitled to all pay,  allowances,  and
benefits of such grade as of that date.

_________________________________________________________________

The following members of the  Board  considered  this  application  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

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

   Exhibit A.  DD Form 149, dated 12 Jul 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 24 Aug 05.
   Exhibit E.  Letter, SAF/MRBR, dated 9 Sep 05.




                                   CHRISTOPHER D. CAREY
                                   Panel Chair






AFBCMR BC-2005-02266





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 15 August
2003, competent authority set aside so much of the nonjudicial
punishment imposed on 16 May 2003 under Article 15, UCMJ, pertaining
to reduction in grade from technical sergeant to staff sergeant,
resulting in restoration of her effective date and date of rank of 1
June 1999 as a technical sergeant.

      It is further directed that she be provided supplemental
consideration for promotion to the grade of master sergeant for all
appropriate cycles beginning with cycle 03E7, using her test scores
for cycle 06E7.

      If AFPC discovers any adverse factors during or subsequent to
supplemental consideration that are separate and apart, and unrelated
to the issues involved in this application, that would have rendered
the applicant ineligible for the promotion, such information will be
documented and presented to the board for a final determination on
the individual's qualification for the promotion.

      If supplemental promotion consideration results in the
selection for promotion to the higher grade, immediately after such
promotion the records shall be corrected to show that applicant was
promoted to the higher grade on the date of rank established by the
supplemental promotion and that applicant is entitled to all pay,
allowances, and benefits of such grade as of that date.






                             JOE G. LINEBERGER
                             Director
                             Air Force Review Boards Agency