RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-01364
            INDEX CODE:  111.02
      XXXXXXX    COUNSEL:  NONE
            HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Enlisted Performance Report (EPR) rendered for  the  period  of  16
April 2007 through 16 August 2007 be voided.

2.  His   date   of   rank   (DOR)   to    staff    sergeant    (E-5)    be
reinstated to 1 March 2006.

________________________________________________________________

APPLICANT CONTENDS THAT:

The applicant contends that after receiving an  EPR  with  an  overall  “5”
rating in December 2007, his commander directed a referral EPR that  closed
out in August 2007.  The referral EPR should have been accomplished at  the
time he received his Article 15, Nonjudicial punishment,  Uniform  Code  of
Military Justice (UCMJ) in July 2007.  This delay caused him to forfeit his
right to have  his  Article  15  punishment  remitted  within  the  120-day
timeframe required by AFI 51–202, Nonjudicial Punishment.

In support of his request,  the  applicant  provided  a  copy  of  the  EPR
Referral letter, the contested EPR, Performance Report Information printout
and AF Form 3070A, Record of Nonjudicial Punishment  Proceedings  (AB  thru
TSgt).

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 28 August 2001  and  was
progressively promoted to the grade of staff sergeant having  assumed  that
grade effective and with a date of rank of 1 March 2006.

On 11 July 2007 while serving as a weapons load chief at Davis Monthan  Air
Force Base, Arizona, he was accused of being derelict in the performance of
his duties in violation of Article 92, Failure to Obey Order or Regulation,
UCMJ.  Specifically, he was accused of failing to  properly  install  chaff
and flare dispensers in an aircraft, as it was his duty to  do  so.   After
consulting with the military defense counsel, he  waived  his  right  to  a
court-martial and accepted nonjudicial punishment  proceedings  on  16 July
2007.  He provided matters in writing for  the  commander’s  consideration,
but elected  not  to  request  a  personal  hearing.   After  weighing  the
evidence, the commander found that he committed the  offense  alleged.   On
20 July 2007, the commander imposed punishment consisting of  reduction  to
the grade of senior airmen with a new DOR of 20 July 2007.  He appealed and
submitted matters in writing and his appeal was denied.

The following is a resume of the applicant’s recent EPR profile:

         PERIOD ENDING          OVERALL EVALUATION

      27 December 2007                 5B
      16 August 2007                   4B (Contested Report)
      15 April 2007                    5B
      15 April 2006                    5B
      15 April 2005                    5B
      15 April 2004                    5B
      15 April 2003                    5B


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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial and addresses the Article 15 punishment.  JAJM
states the applicant’s allegation that a  delayed  commander  directed  EPR
prevented him from requesting  a  set-aside  is  misplaced.   There  is  no
prerequisite in either the Manual for Courts-Martial or AFI 51-202  that  a
commander accomplish a performance report prior to a member requesting set-
aside of an Article 15 punishment.  Nothing prevented him either on his own
or after consulting with his area defense counsel from  requesting  a  set-
aside of his punishment within four months of imposition.  Furthermore, his
request for reinstatement to staff sergeant is premised on  the  assumption
that his commander would have  set  aside  the  punishment  if  he  had  so
requested within his 120 day window.  There is absolutely  no  evidence  in
the record to support the conclusion that his commander would have  granted
him the relief he now seeks.  Although more than four  months  have  passed
since the imposition of punishment, he may still request the commander  set
it aside.  If the commander, at his discretion, determines a  set-aside  is
warranted and unusual circumstances exist, he may still grant the  request.
JAJM states there was no error or injustice in the Article 15  process  and
he alleges none.  An uncompleted commander directed EPR had  absolutely  no
impact on his ability to request a set-aside.  The complete JAJM evaluation
is at Exhibit B.

AFPC/DPSIDEP recommends denial of his request to void  the  contested  EPR.
DPSIDEP states it appears the applicant wants  them  to  believe  that  the
referral report was not directed until January 2008,  after  receiving  the
December 2007 EPR.  However, the evidence shows, and after talking  to  the
commander, DPSIDEP opines that the referral report was in  the  works  much
earlier than he leads them  to  believe;  however,  due  to  administrative
problems in the preparation of the report, it was not actually ready to  be
formerly referred to him until January 2008.

DPSIDEP contacted the commander to find out why the August 2007 report  was
not referred until January 2008.  The  commander  informed  them  that  the
December 2007 report was in  fact  an  accurate  report  and  that  it  was
accomplished to give him the opportunity to test in the upcoming  promotion
cycle since a referral  report  would  have  rendered  him  ineligible  for
testing.

The August 2007 report was delayed due  to  administrative  errors  in  the
preparation of the report.  The commander stated she explained this to him.
 DPSIDEP discovered that the August 2007 report closed  out  on  16  August
2007 and had been prepared on the old AF  Form  910,  Enlisted  Performance
Report (AB through TSgt).  The new electronic version of the  AF  Form  910
was in use  effective  15  August  2007.   The  commander  administratively
corrected the report.  DPSIDEP also corrected the date the rater signed the
August 2007 report to 7 January 2008 versus  24 January  2008.   Since  the
referral memorandum was dated and the applicant acknowledged receipt of the
referral EPR on 7 January 2008, DPSIDEP corrected the raters date signed to
7 January 2008.

As for the Article 15, he did in fact receive an Article 15 for the reasons
mentioned in the contested  report;  therefore  the  content  is  accurate.
Other  than  the  report  being  late,  which  does  not  make  the  report
inaccurate, and with the exception of the administrative errors in the EPRs
that have been since corrected, the contested report is in compliance  with
AFI 36-2406, Officer and Enlisted Evaluation Systems.  The complete DPSIDEP
evaluation, with attachments, is at Exhibit C.

AFPC/DPSOE  defers  to  the  other   office   of   primary   responsibility
recommendations.  The complete DPSOE evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation were forwarded to applicant  on  25  July
2008 for review and response.   As  of  this  date,  no  response  has  been
received by this office (Exhibit E).

________________________________________________________________

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 an  error  or  injustice.   We  took  careful  notice  of  the
applicant's complete submission in judging the merits of the case; however,
we  do  not  find  his  assertions,  in  and  by  themselves,  sufficiently
persuasive in this matter.  Although the contested report contained errors,
which have been corrected administratively, we are  not  persuaded  by  the
evidence provided that the report was not processed in accordance with  AFI
36-2406.  In regards to his request for reinstatement to staff sergeant, we
find no evidence which would  lead  us  to  believe  that  the  nonjudicial
punishment imposed on 20 Jul 07 was improper.  The evidence indicates that,
during the processing of this Article 15 action, the applicant was  offered
every right to which he was entitled, was represented  by  counsel,  waived
his right to demand trial by court-martial, and submitted  written  matters
for review by the imposing commander.  The applicant has not  provided  any
evidence showing that  the  imposing  commander  abused  his  discretionary
authority, that his substantial rights were violated or that the punishment
exceeded the maximum authorized by the UCMJ.  As noted by the office of Air
Force Legal Operations Agency,  the  option  is  still  available  for  the
applicant  to  request  set-aside  of  his  punishment  if  his   commander
determines “unusual circumstances” exist which would warrant  such  action.
Therefore, 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.  In the absence of persuasive evidence to  the  contrary,  we
find no compelling 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.

________________________________________________________________
THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did  not  demonstrate
the existence of 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  BC-2008-01364  in  Executive
Session on 28 August 2008 under the provisions of AFI 36-2603:

                 Mr.  Wallace F. Beard JR., Panel Chair
                 Ms.  Dee R. Reardon, Member
                 Ms.  Karen A. Holloman, Member

The following documentary evidence pertaining to AFBCMR Docket  Number  BC-
2008-01364 was considered:

  Exhibit A.  DD Form 149, dated 2 April 2008, w/atchs.
  Exhibit B.  Letter AFLOA/JAJM, dated 28 April 2008.
  Exhibit C.  Letter AFPC/DPSIDEP, dated 30 June 2008, w/atchs.
  Exhibit D.  Letter AFPC/DPSOE, dated 8 July 2008.
  Exhibit E.  Letter, SAF/MRBR, dated 25 July  2008.




            WALLACE F. BEARD JR.
            Panel Chair