RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02173
            INDEX CODE:  126.04, 133.03

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  23 JAN 2008


___________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15 received on 8 Feb 05  be  set  aside  and  that  his
former rank of staff sergeant with the original  date  of  rank  of
31 Jan 01  be  restored,  to  include  back   pay   and   High-Year
Tenure (HYT).

___________________________________________________________________

APPLICANT CONTENDS THAT:

He did not commit the offense convicted, and the Article 15  action
is unjust and the punishment disproportionate to what actually  did
occur.  Applicant received non-judicial punishment for  dereliction
of duty for failing to refrain from directing the  Internee  Serial
Number (ISN) (detainee) to conduct the ISN count for Alpha Quad  of
Compound 9.

In support of his appeal, applicant submitted a personal statement;
a letter of support from his Area Defense Counsel (ADC); letters of
support and recommendations from other NCOs’ from his base, and  an
unofficial copy of the investigation.

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

___________________________________________________________________

STATEMENT OF FACTS:

Applicant, a prior-service enlistee, was assessed  in  the  Regular
Air Force on 31  Jan  01  in  the  grade  of  staff  sergeant.   On
30 Nov 04, applicant reenlisted for a period of four years and  two
months in the grade of staff sergeant.

On 25 Nov 05, he received an Article 15 for dereliction of duty for
directing a detainee to do the ISN count.  His punishment consisted
of a reduction in  grade  to  senior  airman  with  a  new  DOR  of
25 Nov 05 and forfeiture of $250 pay  per  month  for  two  months,
which was suspended through 24 May 06.

Applicant’s date of separation (DOS) is 31 Dec 06 as  a  result  of
his HYT date based on the reduction in grade to senior airman.  His
pay date is 2 Oct 86 and his total active federal military  service
date (TAFMSD) is 29 May 93.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM addressed the applicant’s  request  in  regards  to  the
25 Nov 05 Article 15 being set aside and that he be  reinstated  to
the rank  of  staff  sergeant  with  his  original  date  of  rank,
31 Jan 01; stating,  in  part,  that  the  applicant’s  contentions
provide no legal basis for relief and has not presented evidence of
a meaningful error or clear injustice in the  Article  15  process,
and recommended the Board deny  the  applicant’s  request  for  set
aside of the Article 15.

Applicant was deployed to the detention facility called the Theater
Interment Facility (TIF) as the Compound Control Team (CCT) Leader.
 The CCTs have the primary responsibility of  maintaining  accurate
count and positive control over detainees.  On 5 Nov 05, a TIF-wide
ISN count was ordered because a  detainee  was  outside  the  wire.
Each quad in each compound was to conduct a count of its detainees.
 On 25 Nov 05, the applicant received nonjudicial punishment  under
Article 15 of the Uniform  Code  of  Military  Justice  (UCMJ)  for
directing a detainee to  do  the  ISN  count  on  5  Nov  05.   The
applicant admits to taking the detainee interpreter out of the wire
and placing him in the applicant’s CCT  area  while  the  detainees
were filing in for the ISN count.  Applicant states he did this  to
help the detainee interpreter understand how much  harder  it  made
the guards job to have the detainees bunch up together, to  get  an
understanding from the  guards  perspective  of  why  they  had  to
conduct ISN count so many times a day, which tended  to  anger  the
detainees.  Upon hearing  that  a  detainee  interpreter  had  been
permitted to conduct the  ISN  count,  the  expeditionary  security
forces squadron commander, directed an investigation  be  conducted
regarding   the   incident.    During   the   investigation   seven
eyewitnesses that were present in the compound were interviewed, as
well as the two detainee interpreters alleged to have conducted the
ISN count.  Applicant  was  interviewed  but  declined  to  make  a
statement.  On 30 Nov 05, applicant appealed the Article 15 action,
and then to the next  level  commander;  however,  both  commanders
ultimately  denied  the  Article  15  appeal.   In  Jan  06,  after
returning to his home base, and with  the  assistance  of  counsel,
applicant requested his squadron commander set  aside  the  action.
His squadron commander denied his request eight  weeks  later.   By
the time his 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.  His request was reviewed by the mission support group
commander; however, after  discussing  the  case  with  applicant’s
defense counsel as well as other members who had been  deployed  at
applicant’s deployment location, he chose to deny the  request  for
supplementary action.

There is no evidence the applicant was prejudiced by the passage of
time because  there  is  no  evidence  that  either  commander  was
inclined to grant the  request.   Both  commanders  considered  the
request thoroughly and opted to deny it, and there is no indication
that the passage of time was  a  factor  in  their  decision.   The
reality is that applicant actually had his request reviewed  by  on
more level than he was entitled to.

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.

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

HQ  AFPC/DPPPWB  deferred  to  the  recommendation  of   AFLOA/JAJM
regarding the applicant’s request  to  set  aside  the  Article  15
action.

HQ AFPC/DPPPWB complete evaluation is at Exhibit D.

HQ AFPC/DPPAE had no recommendation.  They stated  the  purpose  of
the HYT program  is  to  help  shape  the  force  and  correct  the
increasing seniority of the enlisted force structure.   The  policy
established a HYT for every enlisted member when they reached three
years time in service; established HYT date as the year  and  month
an individual  reaches  12  years  total  active  federal  military
service (TAFMS).  Members reduced to senior airman  after  reaching
12 years of service will have their HYT date adjusted to the fourth
month after the first staff sergeant promotion cycle for which they
are Time-in-Grade (TIG) eligible; however a member is not  required
to  be  considered  for  promotion  if  they  are  ineligible   for
consideration.  The applicant’s referral  performance  report  made
him ineligible for promotion and HYT was established to 31 Dec 06.

HQ AFPC/DPPPWB complete evaluation, with attachments, is at Exhibit
E.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant
on 29 Sep 06 for review and comment within 30  days.   As  of  this
date, no response has been received by this office (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
Operations 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.   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  deployed  commander
weighed all the evidence before him  and  ultimately  resolved  the
issue of the alleged misconduct against the applicant.   The  Board
noted the applicant appealed the deployed commander’s decision  and
took  it  to  next  level  commander;  however,   both   commanders
ultimately denied the appeal.  Upon returning  from  the  AOR,  the
applicant was again afforded an opportunity to appeal  the  Article
15 action; however his squadron commander and the  group  commander
ruled against the applicant’s request for supplementary action.  We
believe the applicant was afforded every opportunity in the  appeal
process and has not provided any evidence to sufficiently  convince
the Board that the commander abused his discretionary authority  in
imposing the Article 15 punishment.  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-2006-02173 in Executive Session on 7 December  2006,  under  the
provisions of AFI 36-2603:

      Ms. B. J. White-Olson, Panel Chair
      Ms. Debra K. Walker, Member
      Mr. Todd L. Schafer, 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, HQ AFLOA/JAJM, dated 31 Aug 06, w/atch.
    Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 14 Sep 06.
    Exhibit E.  Letter, HQ AFPC/DPPAE, dated 19 Sep 06, w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 29 Sep 06.




                                   B. J. WHITE-OLSON
                                   Panel Chair