RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2008-01236
                                        INDEX CODE:  126.04
    xxxxxxxxxxxxxx                COUNSEL:  MR. DANIEL CONWAY
                                        HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His nonjudicial punishment (NJP)  under  Article  15  be  removed  from  his
records, his former rank of technical sergeant (E-6) be restored  with  back
pay and allowances.

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APPLICANT CONTENDS THAT:

Counsel provides a synopsis of  the  Article  15  proceedings  and  contends
there are two errors that substantially prejudiced  the  applicant.   First,
the applicant's NJP, which states that  his  punishment  would  be  reviewed
within three to four months with a "possibility" of suspension,  constituted
an illegal punishment.  Second, the appellate reviewer abused his  authority
in reducing the applicant's rank before the end of the three to  four  month
probationary  period.   The  appellate  authority's  power  was  limited  to
suspending the sentence, remitting the sentence,  mitigating  the  sentence,
or setting it aside.  He did not have the power to increase the sentence  by
eliminating  the  probationary  period  and  immediately   instituting   the
reduction in grade.  This increase in punishment deprived the  applicant  of
his right to have the sentence automatically remitted at the  expiration  of
the three to  four  month  period.   Because  these  errors  are  clear  and
unjustifiable, the Board should grant the requested relief.

In support of his request, the applicant provides  his  counsel's  brief,  a
copy of the NJP proceedings with associated documents,  a  copy  of  his  US
Army DD Form 214 and Air Force Reserve discharge order.

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

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STATEMENT OF FACTS:

The following information has been derived from the documents  submitted  by
the applicant.

On 7 May 96, NJP was offered to the applicant under Article  15,  UCMJ,  for
alleged submission of numerous  false  travel  vouchers.   After  consulting
counsel he elected to waive his right  to  demand  trial  by  court-martial.
After  considering  the  applicant’s  written  presentation,  the  commander
determined that he committed the alleged  offenses  and  imposed  punishment
consisting of a reduction in grade from technical sergeant  (E-6)  to  staff
sergeant (E-5) with a new date of rank of 14 Jul 96.  The  statement  ("This
punishment will be reviewed within 3 to  4  months  with  a  possibility  of
suspension")  was  placed  under  the  reduction  in  rank  statement.   The
applicant appealed the punishment; however, his appeal was denied.

Effective 29 Oct 98,  the  applicant  was  discharged  from  the  Air  Force
Reserve with service characterized as General (Under Honorable Conditions).

The remaining relevant facts pertaining to his non-judicial punishment,  are
contained in the letter prepared by the appropriate office of the Air  Force
at Exhibit B.

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AIR FORCE EVALUATION:

AFRC/JA recommends denial.  JA states that  Part  V,  paragraph  6a  of  the
Manual for Courts Martial dictates  the  protocol  for  suspension  of  non-
judicial  punishment.   This  paragraph  allows   the   commander   imposing
punishment to suspend a reduction in rank  for  up  to  6  months.   If  the
reduction in grade has already been executed,  as  was  the  case  with  the
applicant's case, the commander has four months during which he or  she  may
later decide to suspend the reduction.  The  commander's  statement  in  the
wording of the punishment indicating it would "be reviewed  within  3  to  4
months  with  a  possibility  of  suspension"  accurately  states  the   law
governing the period of time during which a suspension  was  a  possibility.
The commander did not guarantee the  applicant  a  suspension;  nor  did  he
ultimately suspend the reduction in rank.  The executed  reduction  combined
with  a  notice  of  the  possibility  of  suspension  is  not  an   illegal
punishment.  The complete AFRC/JA evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states the Board must determine whether the  applicant's  punishment
was suspended at the time of its imposition in late Jul  96.   The  evidence
shows that the punishment was in  fact  suspended  at  that  time.   Counsel
states that all the memorandums  addressing  him  as  a  technical  sergeant
provide clear proof that  the  punishment  was  "in  fact"  suspended.   The
counsel's complete letter is at Exhibit D.

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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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  After reviewing the complete  evidence  of
record, we are not persuaded that the  nonjudicial  punishment  imposed  was
processed erroneously nor are we persuaded by  counsel's  argument  that  he
has been  the  victim  of  an  injustice.   Counsel's  contention  that  the
applicant's punishment was suspended at the time of its  imposition  is,  in
our opinion, without merit.  As noted by AFRC/JA, the commander's  statement
that it would "be reviewed within 3  to  4  months  with  a  possibility  of
suspension" merely states the period of time during which a  suspension  was
a  possibility.   Although  the  applicant's   counsel   presents   detailed
arguments, we are not persuaded that the commander abused his  discretionary
authority when he imposed the nonjudicial punishment,  that  the  punishment
was too harsh, or that the applicant was not afforded all  rights  to  which
he was entitled.  Since we find no error or injustice with  respect  to  the
Article 15 action,  favorable  consideration  of  his  request  that  he  be
restored to the rank of technical sergeant and that he receive back pay  and
allowances is not warranted.  In view of the foregoing and  in  the  absence
of evidence to the contrary, we find no  basis  to  recommend  granting  the
relief sought in this application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

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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.

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The following members of the Board considered  Docket  Number  BC-2008-01236
in Executive Session on 2 Oct 08, under the provisions of AFI 36-2603:

      Mr. Alan A. Blomgren, Panel Chair
      Ms. Jan Mulligan, Member
      Mr. James G. Neighbors, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2008-
01236 was considered:

    Exhibit A.  DD Form 149, dated 14 Mar 08, w/atchs.
    Exhibit B.  Letter, AFRC/JA, dated 29 Apr 08.
    Exhibit C.  Letter, SAF/MRBR, dated 20 Jun 08.
    Exhibit D.  Letter, Applicant's counsel, dated 14 Jul 08.




                                   ALAN A. BLOMGREN
                                   Panel Chair