RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03893
            INDEX CODE:  126.04, 131.05

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  24 JUN 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15 received on 8 Feb 05  be  set  aside  and  that  his
former grade of staff sergeant  with  the  original  date  of  rank
(1 Jan 05) be restored, to include back pay.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He believes the Article 15 to be completely unjust because  of  the
charges against him being supported by false statements and that he
was not allotted the appropriate amount of time to properly respond
to the issuing commander.

He was promoted to the rank of staff  sergeant  on  1  Jan  05  and
demoted to the rank of senior airman on 8 Feb 05 through Article 15
proceedings.

Upon his arrival at his new duty station and after being  counseled
by the Area Defense Counsel (ADC), applicant submitted a request to
have the Article 15 set aside because he had evidence to prove that
the Article 15 was  clearly  unjust  and  his  guilt  questionable.
On or about 10 Jun 05, his  new  commanding  officer  declined  his
request to set aside or at least mitigate his punishment;  without,
to his knowledge, doing any personal investigation of the  original
matter and considering the new evidence.  He again returned to  the
ADC to search out any legal avenues to get the Article 15  reviewed
and overturned.

His commander at his new base was reassigned, so he was advised  to
submit his request to his new commander.  He submitted his  request
to his new commander,  who  stated  that  he  would  earnestly  re-
investigate his case to include the new evidence he provided.   The
commander indicated he was counseled by  the  JAG  that  the  legal
deadline for the applicant to request review of his  case  did  not
apply to any actions he might take as his commander.

During his Aug 05 meeting with his  new  commander,  the  commander
stated that he saw some “shaky” evidence put forth against him, and
that he believes he should have never been put into that situation.
 He continued, stating there was an  injustice  in  his  case  but,
would not take any action due to the fact that he could not legally
set aside nor mitigate his punishment because under the  provisions
of AFI 51-202, para 5.7., Set Aside, he did not commit to  the  set
aside action in a reasonable amount of time.

In support of his appeal, applicant submitted a personal statement;
a copy of his Article 15 proceedings, his response to  the  issuing
commander; other supporting documentation; a copy  of  his  divorce
decree; copies of six Enlisted Performance Reports (EPRs)  covering
the periods from 23 Jun 99 thru 5 Jan 05, and a copy of his request
for set aside to his current commander.

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

___________________________________________________________________

STATEMENT OF FACTS:

Based on available records, applicant enlisted in the  Regular  Air
Force on 23 Jun 99.  He is serving as a Security Forces Apprentice.
 Prior to the events under review, applicant was  promoted  to  the
grade of staff sergeant with an effective date and date of rank  of
1 Jan 05.  On 10 Jan 05, applicant reenlisted in  the  Regular  Air
Force for a period of 4 years and 14 months in the grade  of  staff
sergeant.

On 8 Feb 05, applicant received non-judicial punishment for failing
to go to his appointed place of duty, on or about 22 Jan 05.  After
consulting with counsel, applicant waived his right to demand trial
by court-martial  and  accepted  the  nonjudicial  punishment.   He
submitted a written presentation and  made  a  personal  appearance
before his commander.  His commander determined  he  had  committed
the  offense  alleged  and  imposed  punishment  consisting  of   a
reprimand and reduction to the grade of senior airman, with  a  new
date of rank of 8 Feb 05.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM addressed the applicant’s  request  in  regards  to  the
8 Feb 05 Article 15 being set aside and that he  be  reinstated  to
the rank  of  staff  sergeant  with  his  original  date  of  rank,
1 Jan 05; stating, in part, the applicant has provided no  evidence
of a clear error or injustice related to the nonjudicial punishment
action, and recommended the Board deny the applicant’s request  for
set aside of the Article 15.

The applicant received nonjudicial punishment under Article  15  of
the Uniform Code of Military Justice (UCMJ) for failing  to  go  to
his appointed place of duty on 22 Jan 05.  At 0930 on 4 Feb 05, his
commander offered the Article 15 and gave the applicant until  0930
on 8 Feb 05 to respond.  The applicant responded in person  and  in
writing.  On 8 Feb 05, his commander found him guilty, reduced  him
one grade to senior airman and reprimanded him.  The applicant  had
until 1730 on 13 Feb 05 to make an  appeal  decision  but  made  an
immediate  decision  not  to  appeal.   Applicant   requested   his
subsequent commander  to  set  aside  the  nonjudicial  punishment;
however, he denied the request.

JAJM indicates that nonjudicial punishment is permitted by  Article
15, UCMJ, (10 U.S.C. Section 815), and governed by the  Manual  for
Courts-Martial 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.   The  service
member may then consult with a defense counsel to determine whether
to accept nonjudicial punishment proceedings  or  demand  trial  by
court-martial.  Accepting the proceedings is  simply  a  choice  of
forum (service members have the right to  demand  trial  by  court-
martial instead); it is not an  admission  of  guilt.   Nonjudicial
punishment does not constitute a criminal conviction.

A member accepting nonjudicial punishment proceedings  may  have  a
hearing with the imposing commander.  They may have a spokesman  at
the hearing, may request that witnesses appear and testify, and may
present evidence.  The  commander  must  consider  any  information
offered during that hearing  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  nonjudicial  punishment  action,  set  aside  the  punishment,
decrease the severity, or deny the appeal.

As he states, the applicant was not given the required  three  duty
days to respond to the Article 15.  However, he  was  able,  within
the time he had, to consult with a defense counsel and prepare both
an oral and a written presentation.  He has not offered evidence or
explained how his presentation would have  been  any  different  if
he’d been given more time.  Furthermore, the applicant was notified
during the process  of  the  error  and  elected  (in  writing)  to
proceed.  For both these reasons, his alleged lack of  due  process
does not merit overturning the Article 15.

A set aside should only be granted when the  evidence  demonstrates
an error or a clear  injustice.   The  evidence  presented  by  the
applicant is insufficient to warrant setting aside the  Article  15
action, and does not demonstrate an  equitable  basis  for  relief.
The applicant  has  provided  no  evidence  of  a  clear  error  or
injustice related to the nonjudicial punishment action.

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

HQ  AFPC/DPPPWB  reviewed  the  application  and  deferred  to  the
recommendation of AFLSA/JAJM regarding the applicant’s  request  to
set aside the  Article  15  action,  stating,  in  part,  that  the
commander acted within his authority when he issued the Article  15
punishment.

A complete copy of the evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the evaluation,  the  applicant  reiterated  his
original contentions that the charge against him was  supported  by
false  statements.   He   further   explained   the   circumstances
surrounding the events leading up to the  Article  15  charges  and
provided evidence to substantiate  that  the  commander  based  his
decision on false statements.

He points out in regard to the allotted three duty days to respond;
the evidence provided substantiates that he was not aware  of  this
right because the letter was dated 9 Feb  05;  the  day  after  his
punishment was given to him.

Applicant’s complete response, with attachments, is at Exhibit F.

___________________________________________________________________

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 error or injustice.   The  applicant's
complete submission was thoroughly  reviewed  and  his  contentions
were  duly  noted.   However,  we  do  not  find  the   applicant’s
assertions or his supporting documentation sufficiently  persuasive
to override the rationale provided by the Air Force Legal  Services
Agency.   The  commander  had  discretionary  authority  to  impose
nonjudicial punishment under Article 15, UCMJ,  when  he  concluded
reliable evidence existed to indicate  an  offense  was  committed,
including  applicant’s  admittance  of  guilt.   When  offered  the
Article 15, applicant had an opportunity to demand trial by  court-
martial.  However, he chose not to pursue this avenue and  accepted
the Article 15 instead.  By electing to resolve the  allegation  in
the nonjudicial forum, the applicant placed the  responsibility  to
decide whether he had committed the  offense  with  his  commander.
The Board noted the applicant was not given the allotted three duty
days to appeal the commander’s decision; however, the applicant has
not provided any evidence to sufficiently convince the  Board  that
the commander abused his discretionary authority  in  imposing  the
Article 15 punishment nor has he offered any  evidence  to  explain
how his presentation would have been different, if he’d been  given
more time.  Therefore, in the absence of evidence to the  contrary,
we find no compelling basis to recommend granting the relief sought
in this application.

___________________________________________________________________

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 AFBCMR Docket  Number
BC-2005-03893 in Executive Session on  22  March  2006,  under  the
provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Rita J. Maldonado, Member
      Ms. Glenda H. Scheiner, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Dec 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLSA/JAJM, dated 10 Jan 06, w/atchs.
    Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 25 Jan 06.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Feb 06.
    Exhibit F.  Letter, Applicant, dated 8 Feb 06, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair