RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-02172
                                             INDEX CODE:  126.04
      XXXXXXXXXXXXX                     COUNSEL:  NONE

                                             HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  JAN 23, 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

Action under Article 15, Uniform Code  of  Military  Justice  (UCMJ),  which
reduced him from staff sergeant to senior airman, be set aside and  expunged
from his record; his rank be restored; and he receive the  appropriate  back
pay.

________________________________________________________________

APPLICANT CONTENDS THAT:

He did not commit the offense and, as a result of his being in the Iraq  AOR
(Camp Bucca) and his detailed defense counsel being in Germany, he  received
inadequate legal  assistance  during  the  initial  Article  15  processing.
Through his Area Defense Counsel  (ADC),  applicant  contends  that  he  was
simply told by his assigned  counsel  that  due  to  geographic  separation,
there was nothing they could do for him and that he should just  accept  the
Article 15 and look to get it removed upon returning to home station.

Applicant further contends that his home station  commander  did  not  fully
understand the extent of his authority and was reluctant to  set  aside  the
action, in part, because he was a captain and the imposing commander  was  a
major.  Applicant also contends  he  was  not  treated  fairly  because  the
majority of his accusers at Camp Bucca also worked at his home station,  and
he also believes there was a click of NCOs at  Camp  Bucca,  which  did  not
include him, and that the evidence reviewed by the imposing  commander  does
not support the finding of guilty.

In support of his request, applicant provided  a  memorandum  from  his  ADC
dated 10 July 2006, a copy of the contested Article 15, various  memorandums
pertaining to his acceptance/appeal of the Article 15 action, a copy of  the
Report of Investigation of  the  incidents  which  led  to  the  Article  15
action,  two  e-mails  to  applicant  and  his  First  Sergeant,  and  three
memorandums supporting applicant.


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

________________________________________________________________

STATEMENT OF FACTS:

Applicant is a prior service enlistee who, on 2 October 2003,  was  assessed
on active duty for four years in  the  pay  grade  of  SrA  (E-4).   He  was
considered and selected for promotion to the grade of SSgt (E-5) during  the
04E5 cycle which incremented on 1 November 2004.

Applicant was deployed from Beale AFB, CA, to the detention facility  called
the Theater Increment Facility (TIF) at Camp  Bucca,  Iraq.   Applicant  was
assigned duty as a Compound Control Team (CCT)  Leader,  and  CCTs  had  the
primary responsibility of maintaining accurate count  and  positive  control
over detainees, who were referred to  as  Internee  Serial  Numbers  (ISNs).
Standard Operating Procedures in the TIF stated that all  ISN  counts  would
be conducted by CCT personnel and would not be conducted by ISNs.

On 17 November  2005,  applicant  was  notified  by  his  deployed  squadron
commander that  he  was  considering  him  for  Article  15  punishment  for
violation of Article 92, UCMJ; specifically,  for  dereliction  of  duty  in
that applicant, while assigned as the Compound 9  Bravo  quad  NCOIC  on  or
about 5 November 2005, willfully failed to refrain from directing an ISN  to
conduct an ISN count after a TIF-wide  count  had  been  ordered  due  to  a
detainee being found outside  the  compound  wire.   After  consulting  with
counsel,  applicant  presented  a  written  presentation  to  his   deployed
squadron commander who, on 25 November 2005, determined that  applicant  was
guilty.  Applicant was given until 30 November  2005  to  submit  an  appeal
and, on 28 November 2005, he appealed the Article 15 action to his  deployed
squadron commander and then to the next level  commander.   Both  commanders
denied the appeal and on 3 December  2005,  applicant  was  reduced  to  the
grade of SrA (E-4), with a new  Date  of  Rank  of  25  November  2005,  and
ordered to forfeit $250.00 pay for two  months,  suspended  through  24  May
2006.  As a result of applicant’s reduction to the grade of  SrA,  his  High
Year Tenure (HYT) date has been adjusted to 2 February  2011,  the  date  he
reaches 12 years of service.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, stating that a commander’s action should  only
be set aside when the evidence demonstrates an  error  or  clear  injustice.
They state that the applicant has not presented  evidence  of  a  meaningful
material error or clear injustice of the  Article  15  process.   They  also
advise that upon applicant’s return to Beale AFB in January 2006,  he,  with
the assistance of counsel, requested his squadron commander  set  aside  the
action.  Approximately eight weeks later, his squadron commander denied  the
request and relayed to applicant’s counsel that  he  was  deferring  to  the
knowledge and judgment of  the  imposing  commander  who  was  in  a  better
position  to  examine  the  evidence  and  judge  the  credibility  of   the
witnesses.  Applicant’s squadron commander apparently also told his  counsel
that he felt uncomfortable overruling the decision of a superior  commander.
 By the time applicant’s squadron commander made his  decision,  mitigation,
suspension, or remission of the punishment were no longer  possible  due  to
the fact that more than 120 days from the date of  punishment  had  elapsed.
Applicant’s group commander agreed to review the evidence and make  his  own
determination and,  after  discussing  the  case  with  applicant’s  defense
counsel as well as other  members  who  had  been  deployed  at  applicant’s
deployed location, chose to deny the request for supplementary action.

The AFLOA/JAJM complete evaluation, with attachments is at Exhibit C.

AFPC/DPPPWB recommends  denial,  stating  the  commander  acted  within  his
authority when he issued the Article 15 punishment,  and  advise  that  they
defer to the recommendation of AFLOA/JAJM regarding the applicant’s  request
to set aside the Article 15 action.

The AFPC/DPPPWB complete evaluation is at Exhibit D.

AFPC/DPPAE states that the commander acted  within  his  authority  and  the
applicant accepted the Article 15, UCMJ punishment; however,  they  did  not
make a recommendation, pointing out that if the Board finds  the  punishment
harsh  or  finds  irregularities  surrounding  the  case  and  directs   the
punishment be set aside, applicant’s rank and pay should be re-instated  and
his HYT date should be adjusted accordingly.

The AFPC/DPPAE complete evaluation, with attachments, is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the  AFPC/DPPPWB  and  AFPC/DPPAE  advisories  on  19
October 2006 and stated that  he  understood  the  Article  15  process  was
correct and he was not disputing the Article 15 process.   Applicant  stated
that what he was disputing was the outcome of  the  Article  15  process  in
that all the commanders who found him guilty were wrong in doing  so  as  he
did not commit the offense for which accused, and  stated  the  evidence  is
contained in the documentation submitted with his  request  to  expunge  the
Article  15  from  his  records.   Applicant  also  attached  a   supporting
memorandum, dated 20 October 2006, from a co-worker who was  involved  in  a
similar incident while deployed.

Applicant's complete response is at Exhibit G.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of probable injustice.  After a thorough review of  the  available
evidence, the Board felt the evidence was not conclusive and did  not  fully
support the finding that applicant committed the  offense  for  which  found
guilty by the deployed (issuing) commander.  We note that  upon  his  return
from his deployment, the applicant elected to  submit  a  request  that  his
home station commander set aside  the  entire  action  on  the  Article  15;
however, no action was taken for over eight weeks at which  point  no  other
avenues of redress were available to him.  Additionally, evidence  has  been
presented that applicant’s home station commander may  not  have  understood
or appreciated that he  was  the  final  authority  in  that  he  encouraged
another member requesting supplementary action for a  related  action  while
deployed to continue to work the issue with  higher  authorities.   Finally,
evidence has  been  presented  that  applicant’s  home  station  commander’s
reluctance to set aside the action of the issuing commander  appears  to  be
based not on the sufficiency of the evidence, but rather on  his  reluctance
to set aside the action of a superior officer. Therefore,  in  view  of  all
the circumstances, we believe the benefit of any doubt  should  be  resolved
in favor of the applicant.

________________________________________________________________

THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that  the  nonjudicial  punishment  under
the provision of Article 15, Uniform Code of Military Justice, initiated  on
17 November 2005 and  imposed  on  3  December  2005,  be,  and  hereby  is,
declared void and expunged from his records, and all rights, privileges  and
property of which he may have been deprived be restored.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2006-02172
in Executive Session on 16 November 2006, under the provisions  of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. James A. Wolffe, Member
                       Mr. James L. Sommer, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Jul 06, w/atchs
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 31 Aug 06, w/atch
    Exhibit D.  Letter, AFPC/DPPPWB, dated 14 Sep 06
    Exhibit E.  Letter, AFPC/DPPAE, dated 19 Sep 06, w/atchs
    Exhibit F.  Letter, SAF/MRBR, dated 29 Sep 06
    Exhibit G.  Letter, Applicant, dated 19 Oct 06, w/atch




                                   THOMAS S. MARKIEWICZ
                                   Chair