RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2006-01371
            INDEX CODE:  126.00
      XXXXXXX          COUNSEL:  XXXXXXX

                                  HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  6 NOV 07
__________________________________________________________________

APPLICANT REQUESTS THAT:

The vacation of her suspended punishment imposed upon her under Article 15,
Uniform Code of Military Justice (UCMJ), dated 1 Feb 06,  whereby  she  was
reduced in grade from technical sergeant (TSgt) to staff  sergeant  (SSgt),
be set aside; and that her rank of TSgt be restored effective 1 Jul 02  and
she receive back pay and allowances from 1 Feb 06 to present.
__________________________________________________________________

APPLICANT CONTENDS THAT:

The Record of Proceedings show the results of the vacation action were pre-
judged in violation of AFI 51-202, Nonjudicial Punishment, before she could
present her defense.

On 27 Jan 06, her commander initiated proceedings to vacate  her  suspended
nonjudicial punishment.  She believes the commander  already  predetermined
she would receive a reduction to SSgt.  She believes placing the punishment
on the form is  prima  facie  evidence  and  the  decision  to  vacate  the
suspension was pre-judged.

Applicant believes the commander did not give her  evidence  the  full  and
fair  consideration  it  deserved  before   determining   the   appropriate
punishment.  As a result, the vacation action was  not  legally  sufficient
and should be set aside.

In support  of  the  application,  the  applicant  submits  a  Supplemental
Statement prepared  by  her  defense  council,  Record  of  Proceedings  of
Vacation of  Suspended  Nonjudicial  Punishment,  Record  of  Supplementary
Action Under Article 15, UCMJ; an excerpt from AFI 51-202,  her  Nomination
for Noncommissioned Officer of the Month Award, a copy  of  the  380th  Air
Expeditionary Wing Alcohol Consumption and Purchase  Policy,  a  Memorandum
for Record from her former First Sergeant, and a memorandum from her former
Commander.

The applicant's complete submission, with attachments, is at Exhibit A.
__________________________________________________________________




STATEMENT OF FACTS:

The applicant enlisted in the Regular  Air  Force  on  30  Jan  91  and  is
currently serving in the grade of SSgt, with a date of rank (DOR) of 26 Sep
05.

On 20 Sep 05, the applicant was  notified  of  her  commander's  intent  to
impose nonjudicial punishment upon her for dereliction of duty on or  about
19 Mar 05, to on or about 10 Jun 05 for using her  government  travel  card
for other than official purposes.

After consulting with counsel, the applicant waived her right to a trial by
court-martial, requested a personal  appearance  and  submitted  a  written
presentation.

On 26 Sep 05, after consideration of the evidence presented, the  commander
determined she committed one or more of the offenses  alleged  and  imposed
the following punishment:  reduction to the grade of SSgt with a DOR of  26
Sep 05, 15 days extra duty and a reprimand.   The  applicant  appealed  the
punishment; however, the  appeal  was  denied  by  her  commander  and  the
appellate  authority.   The  Article  15  was  filed  in  her   Unfavorable
Information File (UIF).

On 22 Nov 05, the applicant's  commander  suspended  that  portion  of  the
punishment which called for the reduction in grade to SSgt.  The punishment
would be remitted without further action if not vacated before 21 May 06.

On 27 Jan 06, the applicant's new commander notified the applicant that  he
was considering whether to vacate the suspended portion of the non-judicial
punishment.  The reason for this action was  that  while  assigned  in  the
United Arab Emirates, in accordance with her wing's alcohol consumption and
purchase policy, on or about 9 Jan 05, she failed to obey a lawful order by
having another airman purchase alcohol for her without  having  her  ration
card annotated.  At the time the applicant was advised of this  action,  AF
Form 366, Record  of  Proceedings  of  Vacation  of  Suspended  Nonjudicial
Punishment, was completed in the Section 9 indicating  the  punishment  the
applicant would receive.

After  consulting  with  counsel,  the  applicant  requested   a   personal
appearance and submitted a written presentation.

On 1 Feb 06, after consideration of the evidence presented,  the  commander
determined she committed one or more of the offenses  alleged  and  imposed
the following punishment:  reduced her in grade to the grade of SSgt with a
DOR of 26 Sep 05.

__________________________________________________________________





AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant had a prior action
under Article 15 for dereliction  of  duty  (misuse  of  government  travel
card).  She was initially reduced to SSgt which was later suspended.  On  2
Feb 06, her commander vacated the suspension, thereby reducing her to  SSgt
for violation of Article 92, asking a SrA to purchase alcohol for her.  The
SrA indicates she purchased beverages at the  applicant’s  request  on  two
occasions.  Even the applicant indicates in a sworn statement she  believes
she asked the SrA to purchase her a drink because she could not locate  her
ration card.  The applicant also says she paid for the drink.

Nonjudicial punishment is permitted by Article 15, UCMJ and governed by the
Manual for Court-Martial and AFI 51-202.  This procedure permits commanders
to dispose of certain offenses without trail by court  martial  unless  the
service  member  objects.   By  the  applicant  electing  to  resolve   the
allegation in the nonjudicial  forum,  she  placed  the  responsibility  of
determining guilt with her commander.

The commander had to weigh all the evidence before making a decision.   The
commander ultimately resolved the issue of the alleged  misconduct  against
the applicant.  There is no evidence in the record the commander abused his
discretion.  There was sufficient evidence  to  support  his  findings  the
applicant disobeyed the order  stating  each  alcohol  drinker  would  have
his/her own ration card annotated.

The applicant is correct in stating the commander should not have filled in
the punishment prior to hearing all the evidence.  However, in a memo dated
10 Feb 2006, the commander explains in great detail how he  gave  her  full
and fair consideration prior to  making  a  decision.   His  administrative
error in prematurely filling out the form does not constitute an  injustice
to the applicant requiring correction.

A  commander’s  action  should  only  be  set  aside  when   the   evidence
demonstrates and error or clear injustice.  Therefore,  they  recommend  no
relief be granted.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit B.

__________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

There is  clear  evidence  the  commander  pre-determined  the  applicant’s
sentence when he wrote the sentence on her  form  before  allowing  her  an
opportunity to respond.  The commander’s excuse  is  inadequate  given  the
applicant will lose a significant amount of her retirement  benefits.   The
commander is the judge and the jury, he or she could conceivably  pre-judge
every case.  The requirement  for  commanders  to  make  a  decision  after
considering all relevant matters is a simple tool to  encourage  commanders
not to pre-judge cases.  There is  only  one  simple  safeguard  preventing
commanders from abusing their discretion, that is, they  must  wait  before
deciding cases until all the evidence has been heard.

The Counsel recommends the Board set aside the commander’s  action  because
pre-sentencing was clear, resulting in an injustice to the applicant.

The complete response is at Exhibit D.

__________________________________________________________________

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  that  would  warrant  set-aside  of  the
vacation of her suspended reduction.  While her commander may have erred in
annotating the punishment he was considering on the AF Form 366,  we  agree
with the Air Force that this error in itself is  administrative  in  nature
and does not constitute an error or injustice that would warrant corrective
action.  In cases of this nature,  we  are  not  inclined  to  disturb  the
judgments of commanding officers  absent  a  strong  showing  of  abuse  of
discretionary authority.  We are not persuaded by counsel's  argument  that
such is the case here.  The evidence indicates that, during the  processing
of this vacation action, the applicant was offered every right to which she
was entitled.  She was represented by counsel  and  submitted  written  and
oral matters for review by the imposing commander.  After  considering  the
matters raised by the applicant, the  commander  determined  that  she  had
committed "one or more of the offenses alleged" and vacated  the  suspended
reduction.   While  the  commander  may  have  improperly   annotated   the
punishment he was considering, that annotation was not binding had he found
the matters presented by the applicant mitigating.  Therefore, based on the
available evidence of record, we find no  basis  upon  which  to  favorably
consider 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-2004-
01371 in Executive Session on 8 Aug 06, under the  provisions  of  AFI  36-
2603:

                 Ms. Charlene M. Bradley, Panel Chair
                 Mr. John E. Pettit, Member
                 Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Apr 06, w/atchs.
    Exhibit B.  Letter, AFLOA/JAJM, dated 21 Jun 06.
    Exhibit C.  Letter, SAF/MRBR, dated 23 Jun 06.
    Exhibit D.  Letter, Gary Myers & Associates, dated 19 Jun 06




                                   CHARLENE M. BRADLEY
                                   Panel Chair