RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01869
                       INDEX CODE:  111.02

                       COUNSEL:  None

                       HEARING DESIRED:  Yes

MANDATORY CASE COMPLETION DATE:  9 NOV 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

The  Enlisted  Performance  Report  (EPR)  rendered  for  the   period
15 February 2003 to 31 July 2003 be removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He had unforeseen financial obligations, his grandmother  passed  away
and he was the bearer of the state.  His wife had an extended stay  in
the hospital  during  this  timeframe  due  to  their  newborn  having
complications.  Also, the Article 15 punishment  with  forfeitures  of
over $900.00 caused him  financial  strain  and  he  had  to  purchase
another car due to his being totaled in an accident.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force (RegAF) in
the grade of senior airman (SrA).

On 16 July 1997, the  applicant  received  an  Article  15  for  being
indebted to American Express in the amount of $528.19 from 28 February
1997 to 30 June 1997.  For this misconduct, his  punishment  consisted
of reduction to the grade of airman, suspended, and 45 days  of  extra
duty.

On 6 February 2003, the applicant received an  Article  15  for  being
derelict in his duties from 23 June 2001 to 25 March 2002, in that  he
willfully failed to use his government travel card  for  official  use
only.  For this misconduct, his punishment consisted of  reduction  to
the grade of SrA, suspended, and a forfeiture of $456.00  of  pay  per
month for two months.

On  11  February  2003,  the  applicant   appealed   the   nonjudicial
punishment.  A Memorandum  for  Record  (MOR)  dated  10  March  2003,
indicates the applicant’s commander on 13 February  2003,  denied  the
applicant’s appeal (but inadvertently marked “grant the  appeal”)  and
forwarded  the  appeal  to  the  appellate  authority  without   first
accomplishing a commander’s recommendation letter and a legal  review.
The   applicant’s   appeal   of   the   nonjudicial   punishment   was
reaccomplished and  on  21  February  2003,  his  commander  correctly
annotated her decision to deny the appeal.  The reaccomplished  appeal
was forward to the appellate authority with the  required  commander’s
recommendation letter and a legal  review  and  on  3 March  2003  the
commander documented her  decision  to  deny  the  appeal.   She  also
documented the Unfavorable Information File (UIF)  and,  on  10  March
2003, the applicant acknowledged the UIF decision.

The applicant received  a  referral  report  for  the  periods  ending
14 February 2003 and 31 July 2003 for financial irresponsibility.  The
applicant did not file an appeal under the provisions of AFI  36-2401,
Correcting Officer and Enlisted Evaluation Reports.

On 28  May  2003,  the  applicant  was  notified  of  his  commander’s
intention to vacate suspension of nonjudicial punishment  due  to  the
applicant, on 3 March 2003 and 15 May 2003, failing to  pay  the  Navy
Credit Exchange his monthly payments on  a  layaway  plan.   For  this
misconduct, his punishment consisted of reduction to SrA, with  a  new
date of rank (DOR) of 6 February 2003.

The applicant’s EPR profile reflects the following:

                 PERIOD ENDING               OVERALL EVALUATION

                     14 Dec 98                           5
                     14 Dec 99                           5
                     14 Dec 00                           5
                     14 Dec 01                           5
                 * **14 Feb 03                           3
                 * **31 Ju1 03                           2
                     17 May 04                           5
                      1 Oct 04                           5

* Contested Reports.
** Referral Reports

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPP states the applicant received an Article 15  with  suspended
punishment and later violated the probation period  and  was  demoted.
He also received a referral  report  for  financial  irresponsibility.
Therefore, the information on the  contested  report  is  an  accurate
assessment  showing  the  applicant’s  continued  problem   with   his
finances.

In accordance with AFI 35-2502, Table 1.1, Rule  22,  individuals  who
have a referral EPR or an overall rating of “2” on  the  top  EPR  are
automatically ineligible for promotion.   SrA  through  Senior  Master
Sergeant (SMSgt) regain promotion eligibility only after  receiving  a
performance report with an overall rating of “3” or higher that is not
a referral report and closes out  on  or  before  the  next  Promotion
Eligibility  Cutoff  Date  (PECD),   if   otherwise   eligible.    The
applicant’s contested report will be eligible for consideration in the
promotion process to staff sergeant (SSgt) (E5), promotions  effective
September  2005  –  August  2006.   Therefore   they   recommend   the
applicant’s request to void the contested report be denied.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and  further  requests
his EPRs for the periods ending 14 February 2003 and 31 July  2003  be
removed from his records and that he regain his staff  sergeant  strip
and all back pay that is due him.

He feels that an Article 15 with suspended punishment was correct  but
to later punish him for financial irresponsibility was a slap  in  the
face.  The  reason  for  his  financial  crisis  was  the  Article  15
forfeitures which totaled  over  $900.00  and  his  ongoing  financial
obligations.  He asked his First Sergeant for help  during  this  time
and no help was received.  On 4 March 2003, he was one day late on his
payment.  On 8 April 2003, he was six days late on his  payment.   His
payment on 30 April 2003 was early and on 30 May  2003,  he  paid  the
layaway off.  He was never sent any mail stating he was late  and  the
standing policy was that you had up to 30 days after the bill was  due
to pay the bill because of the vastness of  the  way  the  bases  were
located.  He believes with all the emergencies he had during this time
that he did pretty good with his responsibilities.  He  also  provided
two character statements from his  commanding  officer  and  SMSgt  W.
(Exhibit E).

On 14 September 2005, the Board staff informed the applicant that upon
further review of his application it was determined that an additional
advisory opinion was required (Exhibit F).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM states the applicant received  nonjudicial  punishment  for
two  prior  incidents  involving  financial   irresponsibility.    The
nonjudicial  punishment  the  applicant  received  in  February   2003
consisted of a suspended reduction in rank to SrA and a forfeiture  of
$456.00 a month  for  two  months.   However,  on  10 June  2003,  the
applicant’s suspended reduction in rank was vacated based on  a  third
incident involving financial matters.  The  incident  arose  from  the
applicant purchasing  a  camera  on  a  “layaway”  plan  at  the  Navy
Exchange, in July 2002, prior to the forfeitures ordered  in  February
2003.  The layaway plan required monthly payments and  provided  that,
in the event of a 60-day default  of  payment,  the  buyer  agreed  to
surrender the merchandise and that collection of any  delinquency  may
be accomplished through paycheck deduction.  The plan further provided
that if any payment became delinquent, the buyer’s name would be added
to the “Credit Denied” list and lose check-writing privileges  at  the
exchange.  In addition,  the  plan  specified  that,  if  any  payment
remained delinquent over 30 days, the buyer’s commanding officer would
be notified.

At least two of the applicant’s payments were delinquent for more than
30 days.  These delinquencies occurred between  3  March  and  15  May
2003, in the months following the imposition  of  the  forfeitures  in
connection  with  the  February  2003  nonjudicial  punishment.    The
applicant subsequently paid the  debt  in  full.   The  applicant  was
charged in a vacation action with being derelict in the performance of
his duties by failing to make payments pursuant to the  provisions  of
the plan in violation of AFI 36-2906, paragraph  7.1.   The  suspended
reduction in rank was vacated and he was reduced in rank from SSgt  to
SrA.

The applicant claims that, of the payments he made during  the  71-day
period, one was six days late, one was one day late, and one  was  two
days early.  He further  noted  that  he  completed  payments  on  the
layaway plan over one month before the final  payment  was  due.   The
applicant asserted that there was a “standing policy” under  which  he
had 30 days after the payments were due to make the payments.

AFLSA/JAJM  further  states  a  commander  considering  a   case   for
disposition  under  Article  15  exercises  personal   discretion   in
evaluating the case, both as  to  whether  nonjudicial  punishment  is
appropriate, and, if so, as to the nature and amounts  of  punishment.
Unless a commander’s authority to act in a particular case is properly
withheld, that commander’s discretion is unfettered  so  long  as  the
commander acts within the limits and  parameters  of  the  commander’s
legal authority.  The Manual for Courts-Martial (MCM) and  AFI  51-2-2
provide that a commander may, at any time, suspend any part or  amount
of the unexecuted punishment imposed.  Suspension of all  or  part  of
the punishment imposed automatically requires that  the  servicemember
not violate any punitive articles of the UCMJ  during  the  period  of
suspension.   Furthermore,  the  commander   may   impose   additional
conditions as well.  Any  additional  conditions,  however,  “must  be
clearly stated.”  The vacation of suspension may be based  only  on  a
violation of a condition of suspension which occurs with the period of
suspension.

The applicant argues that he was only a few days late, and even early,
in his payments during the charged timeframe.  However,  to  view  the
applicant’s payment as  only  a  few  days  late  during  the  charged
timeframe, one must ignore that  the  applicant  failed  to  make  any
payment in February and was 31 days past the 1 February  due  date  by
the time he made a payment in March.  The due dates and  his  payments
during the relevant period were as follows:

Due Date             Paid Date       Number of Days Late
1 February 2003      4 March 2003           31
3 March 2003         8 April 2003           36
2 April 2003         30 April 2003          28
2 May 2003           30 May 2003            28

The applicant’s contention that he missed the 3 March due date by only
one day rests on a false premise.  His 4 March payment discharged  the
obligation due  1  February  and  was  31  days  late.   Even  if  the
applicant’s claim of a 30-day grace period is  accepted,  two  of  his
payments in the charged timeframe were past that grace period.

In addition, a commander can dispose of allegations against a  service
member by many means,  including  no  action,  administrative  action,
nonjudicial punishment or  trial  by  court-martial.   Each  commander
exercises his or her own best judgment, after review of all the  facts
in determining  how  to  appropriately  handle  a  case  in  the  best
interests of justice.  In the applicant’s case, his commander  elected
to  vacate  the  suspended  reduction  in  rank  when  presented  with
information regarding his late payments  on  the  layaway  plan.   The
commander determined  the  applicant’s  late  payments  constituted  a
dereliction of duty.  Therefore,  AFLSA/JAJM  recommends  denying  the
requested relief.

A complete copy of the evaluation is attached at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of  the  additional  Air  Force  evaluation  was  forwarded  to
applicant on 8 February 2006 for review  and  response.   As  of  this
date, no response has been received by this office (Exhibit H).

_________________________________________________________________

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 an  error  or  an  injustice.   Applicant’s  numerous
contentions are duly noted; however, we do not find these  assertions,
in  and  by  themselves,  sufficiently  persuasive  to  override   the
rationale provided by the offices of the Air Force.  The applicant did
not provide persuasive evidence to establish that the contested report
was not an accurate reflection of his performance.  Each evaluator has
the obligation when writing the performance  report  to  consider  any
incidents of substandard duty performance and the significance of  the
substandard  performance  in  assessing  the  servicemember's  overall
performance and potential.  In  this  respect,  it  would  appear  the
vacation of suspended  punishment  was  the  basis  for  the  referral
report.  The applicant has not submitted evidence to show the vacation
action was issued inappropriately.  We therefore adopt the Air Force's
rationale expressed as the basis for our decision that  the  applicant
has failed to sustain his burden that he has suffered either an  error
or an injustice.  Hence, we find  no  compelling  basis  to  recommend
granting the relief sought.

4.    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  issue(s)  involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2005-01869 in Executive Session on 15 March 2006, under the provisions
of AFI 36-2603:

                 Ms. Kathleen F. Graham, Chair
                 Mr. Wallace F. Beard, Member
                 Ms. Patricia J. Zarodkiewicz, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 16 Jun 05, w/atchs.
      Exhibit B. Applicant's Enlisted Performance Reports.
      Exhibit C. Letter, AFPC/DPPP, dated 1 Aug 05.
      Exhibit D. Letter, SAF/MRBR, dated 5 Aug 05.
      Exhibit E. Letter, Applicant’s Response, undated, w/atchs.
      Exhibit F. Letter, AFBCMR, dated 14 Sep 05.
      Exhibit G. Letter, AFLSA/JAJM, dated 23 Jan 06.
      Exhibit H. Letter, AFBCMR, dated 8 Feb 06, w/atch.




                       KATHLEEN F. GRAHAM
                       Panel Chair