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AF | BCMR | CY2006 | BC-1992-01342-2
Original file (BC-1992-01342-2.doc) Auto-classification: Denied

                             SECOND ADDENDUM TO
                            RECORD OF PROCEEDINGS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-1992-01342
                                             INDEX CODE: 126.02
                                             COUNSEL:  NONE

                                             HEARING DESIRED:  YES



The nonjudicial punishment, imposed on him on 16 Nov 89, under  Article  15,
Uniform Code of Military Justice (UCMJ), be set aside; his  former  rank  of
staff sergeant (SSgt) be restored; and he be awarded  any  other  promotions
to which he would have been entitled but for his reduction in grade.


On 16 Nov 89, the applicant was reduced  from  SSgt  to  sergeant  (Sgt)  by
Article 15 for dereliction of duty, on  or  about  1 Nov  89,  by  willfully
failing to properly transfer fuel.  His appeal of the punishment was  denied
on 27 Nov 89.  Due to his High Year  of  Tenure  (HYT),  the  applicant  was
ineligible to reenlist and had a  Jun  94  date  of  separation  (DOS).   On
20 Oct 92, the Board considered and denied the applicant’s request  to  have
the Article 15 set aside and his rank of SSgt restored.

A copy of the Record of Proceedings  (ROP)  summarizing  the  case  and  the
Board’s decision is at Exhibit G.

A subsequent grade determination concluded the highest grade  in  which  the
applicant satisfactorily served was SSgt.  On 1 Jul 94, after 20  years  and
22 days of active service, he was retired in the grade of  Sgt  for  maximum
service for time in grade. He would be advanced to the grade  of  SSgt  when
his years of active service and time on the retired list totaled 30 years.

On 28 Apr 93, pursuant to the applicant’s request for  reconsideration,  the
Board again denied his appeal to set aside the Article 15  and  restore  his
grade of SSgt, as well as his request to be awarded any other promotions  to
which he would have been entitled but for the reduction in grade.

An Addendum ROP (AROP) is provided at Exhibit H.

The applicant was advanced to the grade of  SSgt  on  the  retired  list  on
8 Jun 04.

In a 16 Aug 04 appeal, the applicant requested he be retired on 1 Jul 94  in
the grade of SSgt, the highest grade held on active  duty,  rather  than  as
Sgt; however, the Board denied this application on 27 Dec  04.   A  copy  of
that ROP (BC-2004-02624), which contains additional  information  about  the
applicant’s military history  and  the  Board’s  rationale  for  denial,  is
provided at Exhibit I.

In a letter dated 14 Feb 06, the  applicant  requested  reconsideration  and
provided  statements  he  believes  support  his  appeal.  [Some  of   these
individuals provided statements previously.] He did not specify  which  case
he wanted reconsidered.

The applicant’s submission, with attachments, is at Exhibit J.

The AFBCMR Staff assumed the applicant was  referring  to  his  most  recent
case (BC-2004-02624), which was denied on 27 Dec 04, and in a  letter  dated
3 May 06 (Exhibit K), requested he provide copies of  documents  he  alluded
to his 14 Feb 06 submission.  In a letter  dated  6 May  06,  the  applicant
submitted copies of materials that had been part of his earlier appeal,  BC-

The applicant’s 6 May 06 submission is provided at Exhibit L.

In a letter dated 19 Jun 06  (Exhibit  M),  the  AFBCMR  Staff  advised  the
applicant that, based on his two submissions,  his  first  appeal  (BC-1992-
01342) would be processed for a possible second reconsideration.



After reviewing the applicant’s latest submissions, a majority of the  Board
reconsidered his appeal but found the documentation insufficient to  warrant
overturning the earlier Boards’ decisions  to  deny  voiding  the  contested
Article 15.  In cases of this  nature,  we  are  reluctant  to  disturb  the
judgments of commanders absent a strong showing of  abuse  of  discretionary
authority.  We have no such showing here. Essentially, the  applicant  makes
the same arguments he has made over the course of this  case,  most  of  the
latest statements are from individuals who previously made  statements,  and
the  “Briefing  Book”   was   submitted   and   reviewed   in   an   earlier
reconsideration. The applicant has repeatedly attempted to  rationalize  why
he allegedly was not aware of the change in  fuel  transfer  procedures  and
not culpable for the
improper fuel transfer on 1 Nov 89.  Like  others  who  were  aware  of  the
policy change,  the  applicant  was  responsible  for  keeping  apprised  of
fueling procedures.  He has not demonstrated he did not commit  the  offense
for which the Article 15 was imposed, his substantial rights were  violated,
or his commanders’ decisions to impose the Article 15 and  deny  his  appeal
constituted an abuse of discretionary authority.  We note the applicant  has
since been advanced on the Retired List to the grade of  SSgt,  the  highest
grade he held satisfactorily. As  the  applicant  has  not  established  the
contested Article 15 rendered him a victim of  an  error  or  injustice,  we
believe this sufficiently offsets any lasting  effects  of  the  nonjudicial
punishment.  Therefore, we find no compelling basis  on  which  to  overturn
the previous Boards’ decisions to deny.

The documentation provided with this case was sufficient to give  the  Board
a clear understanding of the issues  involved  and  a  personal  appearance,
with or without legal counsel, would  not  have  materially  added  to  that
understanding.  Therefore, the  request  for  a  hearing  is  not  favorably



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 26 and 28 July 2006, under the provisions of AFI 36-2603:

                 Mr. Jay H. Jordan, Panel Chair
                 Ms. Patricia R. Collins, Member
                 Ms. Renee M. Collier, Member

Mr. Jordan and Ms. Collier found the evidence  submitted  new  and  relevant
but not sufficient to overturn the  earlier  Boards’  decisions;  therefore,
they voted to deny the requested relief.  Ms.  Collins  found  the  evidence
new but not relevant and voted not
to reconsider the case.  The  following  documentary  evidence  relating  to
AFBCMR Docket Number BC-1992-01342 was considered:

   Exhibit G.  ROP, dated 19 Nov 92, w/atchs.
   Exhibit H.  AROP, dated 4 Jan 94.
   Exhibit I.  ROP, dated 13 Jan 05, w/atchs.
   Exhibit J.  Applicant’s Letter, dated 14 Feb 06, w/atchs.
   Exhibit K.  AFBCMR Letter, dated 3 May 06.
   Exhibit L.  Applicant’s Letter, dated 6 May 06 (atchs
                                             returned to applicant).
   Exhibit M.  AFBCMR Letter, dated 19 Jun 06.

                                   JAY H. JORDAN
                                   Panel Chair

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