RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-04009
            INDEX CODE:  126.04, 131.05
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 punishment imposed upon him on 9 May 07 be removed  from  his
records and that his rank of senior airman be restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He received a medical profile on 29 Mar 07, which included a restriction  on
driving, however, he never received a lawful order that prohibited him  from
driving his motor vehicle.

The commander has the final decision regarding the profile  and  whether  or
not the  member  is  actually  being  ordered  to  comply.   The  provider’s
issuance of a medical profile  is  merely  a  “recommendation”  and  not  an
order.  He should not have been  punished  for  failing  to  obey  an  order
issued  by  Major  E---,  because  there  was  no  order  issued,   only   a
recommendation to his commander,  who  did  not  indicate  to  him  that  he
adopted the profile limitations.  Nor did his commander communicate that  to
him as a direct order.

Regarding the second specification of his failure to obey a lawful order  by
Lt Col D---, to “fall in” formation during a mandatory  run,  it  should  be
taken into consideration that he did not fail to  obey  his  order,  he  did
“fall in” as ordered, but due to a  medical  condition,  he  was  unable  to
maintain formation due to pain and cramping on the entire left half  of  his
body.

In support of his request,  applicant  provided  a  personal  statement,  an
excerpt from AFI 48-123 Volume 2, Medical Examinations and Standards  Volume
2 – Accession, Retention, and Administration and  a  reference  to  an  Army
Regulation regarding physical profiles.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Air Force on 12  Apr  01.   He  was  progressively
promoted to the grade of senior airman with a date of rank (DOR) of  25  Sep
03.

Applicant’s Enlisted Performance Report (EPR) profile follows:

               Period Ending      Promotion Evaluation

           11 Dec 02                    3
               16 Jun 03                     4
           16 Jun 04                    5
           16 Jun 05                    4
           16 Jun 06                    2

On 18 Sep 02, he received  an  Article  15  for  leaving  the  scene  of  an
accident.  Punishment consisted of a suspended reduction in grade to  airman
basic, forfeiture of $100.00 pay per month for two months,  and  restriction
to the base for 45 days.

On 15 Nov 05, he received an Article 15 for failure to go to  his  appointed
place of duty, being incapacitated from the use of alcohol, and  failure  to
obey a lawful general regulation, by operating his  POV  while  his  driving
privileges were revoked.  Punishment consisted of a suspended  reduction  in
grade to airman first class, forfeiture of $820.00, 23 days of  extra  duty,
and a reprimand.

On  28  Jul  06,  his  supervisor  initiated  an  AF  Form  418,   Selective
Reenlistment Program Consideration, and non-recommended  him  for  continued
service based on his numerous Letters of Counseling, reprimands, an  Article
15, and the nonrecommendation for promotion in his  most  recent  EPR.   His
commander   concurred   with   the   non-recommendation   and   denied   his
reenlistment.

On 9 Mar 07, Capt (Dr.) P. updated the  medical  profile  on  the  applicant
prohibiting him from driving motor vehicles.  In  addition  to  placing  the
restriction on the profile, Capt P. personally told  him  that  he  was  not
allowed to operate any  motor  vehicle.   Two  subsequent  physical  profile
reports dated 19 and  29 Mar 07, respectively, prohibited him  from  driving
motor vehicles.  Despite clear orders not to drive and  being  placed  on  a
physical profile,  he  was  seen  driving  on  multiple  occasions  and  was
involved in a motor vehicle accident.

On 9 May 07, he received an Article 15 for disobeying valid military  orders
by wrongfully operating a motor  vehicle  and  not  falling  into  formation
during the mandatory run when ordered  to  do  so.   After  consulting  with
military counsel, he waived his right to demand trial by  court-martial  and
accepted nonjudicial punishment proceedings.  He presented  matters  in  his
defense in  a  written  statement,  but  waived  his  right  to  a  personal
appearance before the commander.  The commander  found  him  guilty  of  the
offenses charged.  Punishment imposed was  reduction  in  rank  from  senior
airman (E-4) to airman (E-2) with a new DOR  of  9  May  07,  forfeiture  of
$729.00 pay per month for two months, and a reprimand.

On 11 Jul 07, he was released from active duty and transferred  to  the  Air
Force Reserve.  He served for a total of 6 years, 2 months, and 29 days.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial  of  the  applicant’s  request.   There  is  no
evidence of a clear error or injustice  that  occurred  in  the  Article  15
process, and the applicant does not set forth any evidence that an error  or
injustice occurred.

The applicant provided an AF Form 1042, Medical  Recommendation  for  Flying
or Special Operation Duty, dated 10 Jul 06, which DNIF’d him  for  10  days.
He also provided a “Quarters Authorization” form dated 12  Jul  06,  stating
he was to return to duty on 15 Jul 06.  However, the applicant  provides  no
approved convalescent leave paperwork that would authorize him to be  absent
from his place of duty from 10 Jul through 12 Jul or     19 Jul  through  23
Jul 06.  AFI 36-3003, Military Leave Program, paragraph 4.2.4.1  requires  a
recommendation by a doctor to place a service member on  convalescent  leave
to be approved by the service member’s squadron  commander.   If  a  service
member fails to secure the approval of his  commander,  he  is  required  to
report for duty or will be absent without leave.

He provided portions of AFI 48-123 and an Army Memorandum in support of  his
position that driving in  violation  of  his  physical  profile  was  not  a
violation  of  a  direct  order.   The  applicant’s  reliance  on  an   Army
regulation is obviously misplaced and has no bearing in Air  Force  matters.
Furthermore, he was not only  placed  on  a  profile  prohibiting  him  from
driving, but was verbally ordered  by  two  commissioned  officers  and  two
senior noncommissioned officers including his first sergeant not to  operate
a motor vehicle.  The applicant was told no fewer than four  times  that  he
was prohibited from driving, but he disobeyed  this  directive  at  his  own
peril and unfortunately at the peril  of  others  around  him  when  he  was
involved in a motor vehicle accident.

He provides no evidence to back his  claim  that  he  did  not  disobey  his
commander’s order to “fall in.”  In both his  written  presentation  to  the
Article 15 proceedings and his matters submitted  in  appeal,  he  makes  no
reference to physical inability.   Even  if  he  was  physically  unable  to
comply with the order, he does not have the luxury to disobey the  order  as
he did.

The commander relied upon sound evidence  in  determining  that  nonjudicial
punishment was appropriate in  finding  that  the  applicant  disobeyed  two
valid military orders.  The applicant was afforded  his  full  rights  under
Article 15, UCMJ.  There is no evidence  that  the  commander  acted  in  an
arbitrary or capricious manner and the Article 15 underwent two  independent
legal reviews and was found to be legally sufficient by both.

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

HQ AFPC/DPSOE recommends denial.  The commander acted within  his  authority
when  he  issued  the  Article  15  punishment.    DPSOA   defers   to   the
recommendation of AFLOA/JAJM regarding the applicant’s request to set  aside
the Article 15 action and restore his rank to senior airman.

The complete DPSOE evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 Apr 08, copies of the Air Force  evaluations  were  forwarded  to  the
applicant for review and comment within 30 days.  To date,  a  response  has
not been received.

_________________________________________________________________

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  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility and adopt their 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.

_________________________________________________________________

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  Docket  Number     BC-2007-
04009 in Executive Session on 29 May 08, under the  provisions  of  AFI  36-
2603:


      Mr. Wayne R. Gracie, Panel Chair
      Mr. Vance E. Lineberger, Member
      Mr. Garry G. Sauner, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2007-
04009 was considered:

    Exhibit A.  DD Form 149, dated 5 Nov 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 14 Feb 08, w/atchs.
    Exhibit D.  Letter, AFPC/DPSOE, dated 10 Mar 08.
    Exhibit E.  Letter, SAF/MRBR, dated 18 Apr 08.




                                             WAYNE R. GRACIE
                                             Panel Chair