RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-00227
                                       INDEX CODE:  131.00
      XXXXXXXXXXXXXX                    COUNSEL: NONE

                                             HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  28 July 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be restored to the rank of airman first class (A1C)  with  an  11 October
2004 date of rank (DOR).
_________________________________________________________________

APPLICANT CONTENDS THAT:

It was his commander’s intention to restore his DOR to permit  him  to  have
enough time in grade to reenlist in the Air Force.  However, the matter  was
not accomplished in a  timely  manner  within  the  120-day  period  due  to
several factors.  First, during the 120-day  period  following  the  Article
15, he was on detail as an augmentee to the Security Forces  Squadron,  thus
he was not  even  working  within  his  unit  under  his  leadership  chain.
Secondly, he prepared a supplemental action package, but he was  misinformed
regarding the timing in which to submit the request.  He was led to  believe
he had to wait until 120 days after the imposition of punishment  to  submit
the supplemental action request, as opposed  to  submitting  it  within  120
days of the  imposition  of  punishment.   Consequently,  he  submitted  the
package on day 121 to his defense counsel but  was  then  told  he  was  too
late.

In support of his application, the applicant provides a  personal  statement
and copies of his Record  of  Nonjudicial  Punishment  Proceedings  (Article
15); Record of Supplementary Action  under  Article  15,  UCMJ;  commander’s
memorandum of punishment remittance; several letters  of  support  from  his
chain of command; and an e-mail from the imposing commander.

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

_________________________________________________________________

STATEMENT OF FACTS:

According to the Military Personnel Data System, the applicant is  currently
serving on active duty in the grade of A1C with an effective date  and  date
of rank of 25 February  2006.   He  has  a  Total  Active  Federal  Military
Service Date of 10 June 2003 and a projected date of separation  of  9  June
2007.

On 29 October  2004,  the  applicant  received  Article  15  punishment  for
operating a vehicle while under the influence of  alcohol.   His  punishment
consisted of reduction to the grade of airman basic (E-1), with a  new  date
of rank of 25 October 2004; restriction to the base  for  15  days;  and  30
days of extra duty.

On 19 November 2004, that part of the applicant’s  punishment  which  called
for extra duty in excess of 25 days was remitted.

_________________________________________________________________

AIR FORCE EVALUATION:

AFOLA/JAJM recommends denial of the applicant’s request.   JAJM  states  the
applicant asserts that his imposing commander intended to  return  his  rank
of A1C through a supplemental nonjudicial punishment  action;  however,  the
matter was not accomplished during the 120-day limited  period.   Allegedly,
his current commander  sought  an  exception  to  policy  to  reinstate  the
applicant’s rank; however, the Air Force Personnel Center (AFPC)  supposedly
refused to process the request because the action was not the proper  avenue
to  reinstate  the  applicant’s  rank.   However,   the   records   of   the
reinstatement  attempt  and  the  AFPC  denial  are  not  included  in   the
applicant’s appeal package.

JAJM states the evidence clearly supports the  imposing  commander  and  the
applicant, both, was fully aware that 120 days did not need to  pass  before
a supplemental action  could  be  accomplished.   On  19  November  2004,  a
supplemental  action  remitting  the  last  five  days  of  extra  duty  was
accomplished with both of their signatures on the AF Form  3212,  indicating
at the very least that the applicant knew he did not have to wait  120  days
before submitting a request to regain his lost stripe,  as  he  now  claims.
Although  supporting  statements  provided  with  the   applicant’s   appeal
indicate the imposing commander’s  intent  was  to  teach  the  applicant  a
lesson and return his rank prior to the expiration of  the  120-day  period,
for whatever reason, the commander chose not to take  that  action  when  he
approved  the  supplemental  action  on  19  November  2004.   The  imposing
commander may have considered restoring the applicant’s rank  as  an  option
and ultimately decided against it.  What is clear on the record is that  the
commander knew his options and he ultimately chose to neither  mitigate  nor
suspend the reduction in rank within the 120 days.  Although mitigation  and
suspension  must  be  done  within  four  months  after  the  imposition  of
punishment, the commander could have set aside the rank reduction after  the
120 days had elapse, if restoring the applicant’s rank had really  been  his
intent.  However, the evidence  suggests  the  imposing  commander  did  not
consider a set aside as appropriate.  A commander’s action  should  only  be
set aside when the evidence demonstrates an error or a clear injustice.

It is JAJM’s opinion that the applicant has  not  presented  evidence  of  a
meaningful error by the commander or a clear injustice  in  the  Article  15
process.

The JAJM’s evaluation is at Exhibit B.

AFPC/DPPPWB defers to the recommendation of AFOLA/JAJM.  DPPPWB  states  the
applicant’s commander acted within his authority when he issued the  Article
15 punishment.

The DPPPWB evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to  the  applicant  on  2
March 2007, for review and comment within 30 days.  As of  this  date,  this
office has received no response.

_________________________________________________________________

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.  We note the applicant’s assertion that  it
was his commander’s intention to restore his date of rank to  A1C;  however,
his commander was less than convincing in his  response  when  contacted  to
confirm this intention.  Even if it was his initial intention,  we  are  not
persuaded the commander had not changed  his  mind  when  he  remitted  that
portion of applicant’s punishment for  five  days  of  extra  duty  instead.
Therefore, we agree with the opinion and recommendation  of  the  Air  Force
offices of primary responsibility and adopt their  rationale  as  the  basis
for our determination in this case.   Accordingly,  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 this application in  Executive
Session on 15 May 2007, under the provisions of AFI 36-2603:

                 Mr. Michael V. Barbino, Panel Chair
                 Mr. Don H. Kendrick, Member
                 Mr. John B. Hennessey, Member


The following documentary evidence for AFBCMR  Docket  Number  BC-2007-00227
was considered:

      Exhibit A.  DD Form 149, dated 22 Jan 07, w/atchs.
      Exhibit B.  Letter, AFLOA/JAJM, dated 1 Mar 07.
      Exhibit C.  Letter, AFPC/DPPPWB, dated 9 Mar 07.
      Exhibit D.  Letter, SAF/MRBR, dated 16 Mar 07.




                                   MICHAEL V. BARBINO
                                   Panel Chair