RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00981
            INDEX CODE:  131.00, 133.00

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED: YES


MANDATORY CASE COMPLETION DATE:  30 SEP 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

His rank of master sergeant (E-7) be reinstated or equal  treatment
for all.

___________________________________________________________________

APPLICANT CONTENDS THAT:

In his opinion, the Article 15 punishment consisting of a suspended
reduction in grade to the  rank  of  E-5,  Staff  Sergeant  (SSgt),
forfeiture of pay in the amount of $500 per month for  two  months,
and the loss of his Line Number  for  Master  Sergeant  (MSgt)  was
unjust.  He  was  accused  of  violation  of  Articles  107,  false
official statement and Article 123, forgery with intent to defraud.
 He received notification of the action on  27  Dec  04,  while  on
Christmas  leave.   However,  his  record  was  not  updated  until
7 Mar 05.

He states that he accepted the punishment without appeal under  the
assumption that he would not lose  his  stripe  and  believes  that
there were numerous errors associated with promotion propriety that
rendered him eligible for promotion to MSgt.

In support of his appeal, applicant submitted copies of his  Record
of Non-judicial Punishment  Proceedings;  Memorandum  of  Promotion
withhold; Release from Administrative Hold;  Notification  of  Non-
recommendation for Promotion, and other supporting documents.

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

___________________________________________________________________

STATEMENT OF FACTS:

Prior to the events under review, applicant enlisted in the Regular
Air Force on 6 Nov 85.  He was progressively promoted to  the  rank
of technical sergeant (TSgt/E-6) with an effective date and date of
rank of 1 Jul 00.  He was considered and selected for promotion  to
MSgt during cycle 04E7, with PSN 2355 which incremented 1 Jan 05.

On 27 Dec 04,  he  received  an  Article  15  for  making  a  false
statement and forgery.  His punishment  consisted  of  a  suspended
reduction in grade  to  (E-5)  staff  sergeant,  suspended  through
2 Jul 05, after which time would be remitted without further action
and forfeiture of $500 pay per month for two months.

On that same date, his commander notified him  that  his  promotion
was being placed in withhold status.  On 31 Jan 05, he was notified
by his commander  of  his  nonrecommendation  for  promotion.   The
notification  explained  that  he  would  remain   ineligible   for
promotion  until  the  expiration  of  his  suspended   punishment,
however, on 2  Apr  05,  applicant  received  a  referral  enlisted
performance report (EPR) for the period 3 Apr 04 – 2  Apr  05,  and
became ineligible for reinstatement.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPWB recommended denial, stating, in  part,  had  he  not
received the referral EPR, he could have received reinstatement  of
his rank provided he had the approval of his commander.

The HQ AFPC/DPPPWB complete evaluation is at Exhibit C.

HQ AFPC/JA recommended  denial,  stating  in  part,  the  applicant
asserts numerous errors associated  with  the  promotion  propriety
action that rendered him ineligible for promotion to MSgt  and  the
nonjudicial punishment he received for forgery and making  a  false
official statement.

The applicant was selected for promotion to MSgt during cycle  04E7
and would have advanced to that grade on 1 Jan 05 if his  commander
had not withheld the promotion on 27 Dec 04, because the  applicant
was then “under military investigation.”  His commander noted  this
disqualification would remain in  effect  “until  the  reason  that
necessitated the withhold action  no  longer  exists  and  you  are
recommended   for   promotion.”    Nonjudicial   punishment   under
Article 15, UCMJ, was also offered to the applicant on 27  Dec  04.
After electing to waive his right to trial  by  court-martial,  the
applicant was found guilty of making a false official statement and
forgery on 30 Dec 04 and received a punishment that consisted of  a
suspended reduction to staff sergeant and forfeiture  of  $500  per
month for two months.   The  applicant  chose  not  to  appeal  the
nonjudicial punishment.

To obtain relief, applicant must show by  a  preponderance  of  the
evidence there exists some error or injustice warranting corrective
action by the board.  Since there was a legally sufficient  factual
basis for the actions taken against the applicant, in JA’s opinion,
the AFBCMR should not  substitute  it  judgment  for  that  of  the
applicant’s commander in this case.

The HQ AFPC/JA complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 28 Apr 06 for review and comment within 30  days.   As  of  this
date, no response has been received by this office (Exhibit E).

___________________________________________________________________

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  offices  of
primary responsibility.  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.   When  offered  the  Article  15,  applicant   had   an
opportunity to establish his innocence by demanding trial by court-
martial.  However, he chose not to pursue this avenue and  accepted
the Article 15 instead.  His punishment consisted  of  a  suspended
reduction  in  grade  to  staff  sergeant  through  25 Jul 05,  and
forfeiture of $500 per month for two months.   Notwithstanding  the
above, the commander could  have  requested  reinstatement  of  the
applicant’s  line  number  at  the  completion  of  the   suspended
punishment; however, the applicant  received  a  referral  EPR  and
became ineligible for reinstatement.  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 applicant has  not  provided  any  evidence  to
sufficiently convince the  Board  that  the  commander  abused  his
discretionary authority in imposing the Article  15  punishment  or
that the  Article  15  action  and  subsequent  referral  EPR  were
contrary to the governing instruction.  Therefore, in  the  absence
of evidence to  the  contrary,  we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

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  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 AFBCMR Docket  Number
BC-2006-00981 in Executive Session  on  11  July  2006,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Mary C. Puckett, Member
      Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Mar 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPPWB, dated 4 Apr 06.
    Exhibit D.  Letter, HQ AFPC/JA, dated 20 Apr 06.
    Exhibit E.  Letter, SAF/MRBR, dated 28 Apr 06.




                                   THOMAS S. MARKIEWICZ
                                   Chair