Search Decisions

Decision Text

AF | BCMR | CY2006 | BC-2004-01407-2
Original file (BC-2004-01407-2.DOC) Auto-classification: Denied

ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBERS:  BC-2004-01407
                                       INDEX CODE:  126.04
      XXXXXXXXXXXXXXX                   COUNSEL: Mr. Gary R. Myers

                                             HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15, Uniformed Code of Military Justice  (UCMJ),  action  imposed
on 18 December 2003, be  expunged  from  his  record;  his  rank  of  master
sergeant (E-7) be reinstated as of the date of his reduction  in  grade;  he
be retired in the grade of master sergeant; and he receive all back pay  and
allowances owing as a result of his reduction in grade.

___________________________________________________________________

STATEMENT OF FACTS:

The applicant submitted a similar appeal, which was  considered  and  denied
by  the  Board  on  15  September  2004.    The   applicant   contends   the
specification on his nonjudicial punishment action is contrary  to  law  and
legally insufficient because it fails in all material  respects  to  specify
the particular duty or duties, which  it  is  alleged  that  he  negligently
failed to perform, and the particular manner in which he negligently  failed
to perform the unspecified duty or duties.  As such, the  specification  may
not form  the  basis  for  the  imposition  of  nonjudicial  punishment  and
according to Air Force Instruction 51-202, it must be  set  aside.   For  an
accounting of the facts and circumstances surrounding the rationale for  the
earlier decision by the Board, see the Record of Proceedings  at  Exhibit  G
(with Exhibits A-F).

On 6 February 2006, the applicant submitted a request  for  reconsideration.
In support of his request, he submits  a  supplemental  statement  from  his
counsel; and  copies  of  his  Article  15,  Commander  Directed  Report  of
Investigation, shop inventory, Mission Systems Flight Commander  memorandum,
Area Defense  Counsel  memorandum,  Defense  Paralegal  memorandum,  Mission
Support Group Commander memorandum, Letter of Reprimand,  and  Secretary  of
the Air Force action on advancement to higher grade.

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

___________________________________________________________________

THE BOARD CONCLUDES THAT:

In earlier findings, the Board determined there  was  insufficient  evidence
to prove the applicant’s nonjudicial  punishment,  imposed  on  18  December
2003, was improper.  After a careful reconsideration of his request and  his
most recent submission, we do not find it provides a basis  to  disturb  the
Board’s  earlier  determination.   While   the   applicant’s   most   recent
submission  included  letters  that  were  not  provided  in  his   original
application to  this  Board,  we  note  these  letters  were  available  for
consideration by the imposing commander and  reviewing  authority  when  the
applicant filed his appeal to the Article 15.  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 and oral matters for review by the imposing commander and was  given
the  opportunity  to  present  his  arguments.    The   imposing   commander
determined  that  the  applicant  did  commit  the   offense   and   imposed
punishment.  The applicant appealed the  punishment  and  after  considering
the matters raised by the applicant in  his  appeal,  the  appeal  authority
denied the request.  There is nothing in the evidence provided,  other  than
the applicant’s assertions, which would lead the Board to believe  that  the
actions by the imposing commander were inappropriate  or  that  he  did  not
have access to all of  the  information  necessary  on  which  to  base  his
decision.  The applicant has not provided  any  evidence  showing  that  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  facts  of  this  case,  we
believe the applicant has not established that he has suffered an  error  or
injustice.  Accordingly, the Board finds no basis upon  which  to  favorably
consider the applicant’s requests.

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 this application in  Executive
Session on 20 July 2006, under the provisions of AFI 36-2603:

                 Mr. Laurence M. Groner, Panel Chair
                 Mr. James A. Wolffe, Member
                 Ms. LeLoy W. Cottrell, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2004-01407-2:

    Exhibit G.  ROP, dtd 28 Oct 04, w/ Exhibits A through F.
    Exhibit H.  DD Form 149, dated 6 Feb 06, w/atchs.



                                   LAURENCE M. GRONER
                                   Panel Chair

Similar Decisions

  • AF | BCMR | CY2004 | BC-2004-01407

    Original file (BC-2004-01407.DOC) Auto-classification: Denied

    Thus taken alone, the specification in the Air Force Form 3070, Record of Nonjudicial Punishment Proceedings, would be insufficient under the UCMJ to provide notice to the applicant of the nature of the charged offense. JAJM states that while the wording of the Article 15 specification was inadequate and should not be countenanced, the deficiency cause neither a material error or injustice because the applicant was nevertheless informed of the nature of the charged offense, the...

  • AF | BCMR | CY2006 | BC-2006-00977

    Original file (BC-2006-00977.doc) Auto-classification: Denied

    RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2006-00977 INDEX CODE: 131.09 XXXXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: YES MANDATORY CASE COMPLETION DATE: 24 SEP 07 _________________________________________________________________ APPLICANT REQUESTS THAT: He be promoted to the rank of Major General (O-8) retroactive to 1 Jun 03. The HQ AF/DPG complete evaluation is at Exhibit...

  • AF | BCMR | CY2004 | BC-2005-00316

    Original file (BC-2005-00316.doc) Auto-classification: Denied

    RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2005-00316 INDEX CODE: 110.00 COUNSEL: NONE HEARING DESIRED: NO MANDATORY CASE COMPLETION DATE: 29 JUL 06 _________________________________________________________________ APPLICANT REQUESTS THAT: The reenlistment eligibility (RE) code reflected on his DD Form 214 be changed from “4H” to “1J.” _________________________________________________________________ APPLICANT CONTENDS...

  • AF | BCMR | CY2006 | BC-2005-01185A

    Original file (BC-2005-01185A.doc) Auto-classification: Denied

    ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2005-01195 INDEX CODE: 131.00 XXXXXXX COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: He be considered for promotion to the grade of colonel by Special Selection Boards (SSBs) for the CY03B and CY04C Colonel Central Selection Boards to correct assignment errors. On 16 March 2005, the applicant...

  • AF | BCMR | CY2007 | BC-1988-01539-2

    Original file (BC-1988-01539-2.doc) Auto-classification: Denied

    By letter dated, 9 Dec 76, the Air Force Discharge Review Board (AFDRB) notified the applicant that his discharge was upgraded to general (under honorable conditions). However, in view of the AFDRB’s earlier decision, and the contents of the FBI Report, we are unpersuaded that an upgrade of the characterization of his discharge to fully honorable, his RE code of 2, or his reason for separation is warranted. Letter, AFBCMR, dated 5 Dec 06.

  • AF | BCMR | CY2005 | BC-2004-00364A

    Original file (BC-2004-00364A.doc) Auto-classification: Denied

    For an accounting of the facts and circumstances surrounding the applicant's request to have his discharge upgraded, and the rationale of the earlier decision by the Board, see the Record of Proceedings, with attachments, at Exhibit H. On 20 August 2004, the applicant submitted a request for reconsideration to have his other than honorable conditions (UOTHC) discharge upgraded. On 25 February 2005, the applicant’s counsel submitted documentation requesting reconsideration to have the...

  • AF | BCMR | CY2004 | BC-2003-04070

    Original file (BC-2003-04070.DOC) Auto-classification: Denied

    RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2003-04070 INDEX CODE: 126.04 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Applicant did not appeal the Article 15 punishment. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the...

  • AF | BCMR | CY2004 | BC-2002-02730a

    Original file (BC-2002-02730a.doc) Auto-classification: Approved

    ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 02-02730 XXXXXXX COUNSEL: TOM DRAKE XXXXXXX HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be awarded the Purple Heart (PH) and the Distinguished Flying Cross (DFC). In this respect, we note the Board previously denied his request for award of the DFC based on the absence of evidence that he completed a total...

  • AF | BCMR | CY2007 | BC-2007-01995

    Original file (BC-2007-01995.DOC) Auto-classification: Denied

    The report only referred to the Article 15 that was received during this reporting period and therefore was authorized. DPSIDEP found no procedural errors or injustices in any of the contested reports. Applicant provided no evidence of error or injustice, nor does the record reveal any.

  • AF | BCMR | CY2002 | 0102476A

    Original file (0102476A.doc) Auto-classification: Approved

    For an accounting of the facts and circumstances surrounding the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit C. On 20 May 2002, the applicant submitted a VA rating and a copy of his performance report and requested reconsideration. While the performance report does not provide conclusive evidence that would normally be required in support of this type of appeal, we are persuaded that it does provide plausible evidence that supports his...