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
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