ADDENDUM TO
                            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

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, he requests his  Article  15
received on 17 Nov 05 be set  aside  and  that  his  former  rank  of  staff
sergeant with the original date of rank (DOR) of 31 Jan 01 be  restored,  to
include back pay and High-Year of Tenure (HYT).

_________________________________________________________________

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) was 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.

On 7 Dec 06,  the  Air  Force  Board  for  Correction  of  Military  Records
(AFBCMR) considered and denied the applicant’s request to have  his  Article
15 received on 17 Nov 05 set  aside  and  that  his  former  rank  of  staff
sergeant with the original DOR of 31 Jan 01 be  restored,  to  include  back
pay  and  High-Year  of  Tenure.   For  an  accounting  of  the  facts   and
circumstances surrounding the applicant’s case, and, the rationale  for  the
earlier decision by the Board, see the Record of Proceedings at Exhibit G.

On 13 Dec 06, the Director, Air Force Review Boards  Agency  directed  in  a
similar case that the  military  records  be  corrected  to  show  that  the
nonjudicial punishment under the provisions of Article 15, Uniform  Code  of
Military Justice, initiated on 17 Nov 05 and imposed on 3 Dec  05,  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.

Applicant submitted a request for reconsideration, contending that since  he
and another noncommissioned officer received  the  same  punishment  by  the
same people, why was the other applicant’s appeal overturned by  the  AFBCMR
and his was not.  He was advised by his first sergeant that what happens  to
one happens to both.  To support this assertion, the  applicant  provided  a
personal statement.

The applicant’s complete submission is at Exhibit H.

_________________________________________________________________

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 error or injustice  warranting  a  correction  to  the  record.
After careful consideration of all of the  evidence  before  it,  the  Board
found that 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.  Nevertheless, the Board  believes  there  may
have been mitigating circumstances  that  affected  the  applicant’s  appeal
process upon returning from the AOR.  In this regard,  it  appears  that  it
took an inordinate  amount  of  time  for  the  home  station  commander  to
consider the applicant’s appeal for supplementary  action.   This  inaction,
in our view, resulted in the applicant not  receiving  due  process  of  his
request to have his Article  15  set  aside.   Therefore,  to  preclude  any
further injustice to the applicant, we believe the  applicant’s  Article  15
received on 17 Nov 05 should be set aside and that his former rank of  staff
sergeant with the original  date  of  rank  (DOR)  of  31 Jan 01  should  be
restored, to include back pay and High-Year of Tenure (HYT).

_________________________________________________________________

THE BOARD RECOMMENDS 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  declared  void  and
expunged from his records, and all rights and privileges,  and  property  of
which he may have been deprived be restored.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-20056-
02173 in Executive Session on 2 August 2007, under the provisions of AFI 36-
2603:

      Mr. Wayne R. Gracie, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. Jan Mulligan, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

      Exhibit G.  Record of Proceedings, dated 26 Dec 06,
                with Exhibits.
      Exhibit H.  Letter, Applicant Reconsideration, undated.




                                   WAYNE R. GRACIE
                                   Panel Chair



AFBCMR BC-20056-02173




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXX, XXXXXXX, 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 declared void and expunged from his records,
and all rights and privileges, and property of which he may have
been deprived be restored.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency