RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02217
            INDEX CODE:  126.03
            COUNSEL:  NONE
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  12 JAN 2009

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APPLICANT REQUESTS THAT:

The Article 15, Nonjudicial Punishment (NJP) action imposed on  30 Jul
01, be set-aside and permanently removed from his record.

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APPLICANT CONTENDS THAT:

He believes the punishment was unfair because he was punished to a 60-
day base restriction and 45 days of extra  duty,  which  exceeded  the
punishment allowed under the Manual for Courts-Martial (MCM).

In support of his request, applicant provided an Air Force Form  3070,
Record of Nonjudicial Punishment Proceedings, and a copy of the MCM.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 3 Apr 86,  and  was
progressively promoted to the grade of technical sergeant.  On 23  Jul
01, he was notified by his commander of his intent to  offer  him  NJP
for allegedly driving  while  drunk,  in  violation  of  Article  111,
Uniformed Code of Military Justice.  After consulting with counsel, he
waived his right to demand trial by  court-martial  and  accepted  NJP
proceedings.  On 26  Jul  01,  he  submitted  both  oral  and  written
statements in his own behalf to the commander for  his  consideration.
On 30 Jul 01, the commander  concluded  the  applicant  committed  the
offense alleged and imposed punishment consisting of  a  reduction  in
rank to the grade of staff sergeant, restriction to the  base  for  60
days and 45-days extra duty.  He did not appeal the punishment and the
NJP action  underwent  legal  review  and  was  found  to  be  legally
sufficient.

The applicant is currently serving on active  duty  in  the  grade  of
technical sergeant.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states, in part, the applicant has
not presented any  evidence  negating  his  guilt  of  the  underlying
offense.  Procedural and  substantive  requirements  having  otherwise
been met in the NJP  action,  the  application  is  untimely  and  his
request  for  equitable   relief   is   without   legal   or   factual
justification.

A commander considering  a  case  for  disposition  under  Article  15
exercises personal discretion in  evaluating  the  case,  both  as  to
whether nonjudicial punishment is appropriate, and if so,  as  to  the
nature and amount of punishment.  Unless a  commander’s  authority  to
act in a  particular  case  is  properly  withheld,  that  commander’s
discretion is unfettered so long as  the  commander  acts  within  the
limits and parameters of the  commander’s  legal  authority.   Setting
aside a punishment in its entirety clears the member’s record  of  the
offense as if the Article 15 had never been initiated

The applicant’s assertion that restriction and extra duties may not be
combined to exceed the maximum punishment imposable for extra  duties,
in this case 45 days is correct.  He states he served a restriction to
the boundaries of the base in excess  of  15  days,  but  provides  no
evidence to corroborate his assertion.  He does  not  allege  the  NJP
action was unwarranted or in error.  He only points-out  that  he  was
prevented from leaving the boundaries of his base for an additional 15
days.  He was not incarcerated, nor restricted  to  his  dormitory  or
work station.

Assuming his assertion that he served the entire punishment  is  true,
the error in the punishment imposed by no means voids  the  merits  of
the NJP action.   More  noteworthy,  is  the  fact  that  he  had  the
opportunity to appeal the punishment, and after  consulting  with  his
defense attorney, he chose not to appeal the improper punishment.  He,
in essence, waived his right to complain about an improper  punishment
when he declined to  pursue  the  very  avenue  available  to  him  to
complain about an excessive or improper punishment.

To set aside the entire action, six years after the imposition of  the
NJP, when the applicant did nothing during the NJP process or  in  the
three years after to correct the error, would be the  real  injustice.
This was his second instance of drunk  driving.   The  merits  of  the
action are undisputed,  and  he  presents  no  evidence  of  error  or
injustice with regard to his guilt of the offense.

Commanders on the scene have first—hand access to facts and  a  unique
appreciation for the need of morale and discipline  in  their  command
that even the  best  intentioned  higher  headquarters  cannot  match.
There is no indication that the commander acted  in  an  arbitrary  or
capricious manner.  Setting aside the NJP action does not  return  the
applicant back his time lost to restriction, and it does not serve the
Air Force’s concern for discipline with respect to drunk driving.   He
could have easily resolved this situation by appealing the  punishment
and pointing out the error to the commander, an option he chose not to
pursue, and instead opted to serve  the  entire  punishment.   Justice
would  not  be  served  by  now  removing  the  administrative  record
reflecting his second instance of drunk driving.

The complete AFLOA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states in part, the advisory opinion paints  a  negative
picture of him by mentioning the Article 15 he received in 1996.   His
application addresses the 2001 punishment from the understanding  that
punishment cannot be based on previous NJP action.

The  punishment  in  2001,  was  offered   and   accepted   with   the
understanding that  acceptance  was  not  an  admission  of  guilt  or
innocence, but the commander’s decision on how to punish.  He did  not
appeal the NPJ based on the advice from his area defense counsel,  who
also was not aware of the injustice.  The fact that he did not  appeal
does not eliminate the  truth  that  an  injustice  occurred.   If  an
injustice was evident at the time he received the Article 15  NJP,  he
would have addressed the issue at the  time  of  the  infraction.   He
believes punishment is disproportionate if it is, in the  judgment  of
the reviewer, too severe for the offense committed.  He states he  did
not dwell on this punishment and has served his country well.  He  has
completed his Community College  of  the  Air  Force  Degree  and  was
promoted to technical sergeant again.

He referenced the MCM and found actions taken against him were  unjust
and he is not sure why the advisory  opinion  states  the  NJP  action
underwent legal review and was found to be legally sufficient.  It was
sufficient but it was inaccurate and it did  cause  an  injustice  and
infringement of his rights, which is prohibited by the  same  judicial
system.

The applicant’s complete response is at Exhibit E.

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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.   The  applicant’s  complete  submission  was
thoroughly reviewed and his contentions were duly noted.  However,  we
did not find his assertions nor the documentation submitted in support
of his appeal, sufficiently persuasive to warrant  corrective  action.
After a thorough review of the facts and circumstances of  this  case,
we  find  no  evidence  which  would  lead  us  to  believe  that  the
information used as a basis for the Article 15, dated 30 Jul  01,  was
erroneous, or that there was an abuse of discretionary authority.  The
Air Force has indicated that the applicant is correct in his assertion
that restrictions and extra duties may not be combined to  exceed  the
maximum punishment imposable for extra duties, in this case  45  days.
Assuming he served the entire restriction of 60 days,  the  punishment
imposed does not void the merits of the NJP action.  In  view  of  the
above, we  are  compelled  to  conclude  that  the  additional  15-day
punishment imposed was a harmless error.  After reviewing the evidence
of record, we are in complete agreement with the comments of  the  Air
Staff office of primary responsibility and adopt its rationale as  the
basis for our conclusion that the applicant has not been the victim of
an error or injustice.  Therefore, in the absence of evidence  to  the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.

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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-
2007-02217 in Executive  Session  on  27  September  2007,  under  the
provisions of AFI 36-2603:

                 Mr. Michael J. Maglio, Panel Chair
                 Ms. Karen A. Holloman, Member
                 Mr. Wallace F. Beard Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Jul 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 17 Aug 07.
    Exhibit D.  Letter, SAF/MRBR, dated 31 Aug 07.
    Exhibit E.  Letter, Applicant, dated 8 Sep 07.




                                   MICHAEL J. MAGLIO
                                   Panel Chair