RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2009-00353
		COUNSEL: NONE
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) imposed on 5 August 1998 be set aside and his cycle 98E8 senior master sergeant (E-8) promotion sequence number, (PSN) 707.0 be reinstated.

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APPLICANT CONTENDS THAT:

His commander redlined his promotion to SMSgt. This injustice was committed based on emotions, rather than the law. He feels the government should have a separate civilian department in Washington reviewing these types of cases.  He requests the Board review his records and his commitment to the Air Force for      20 years. 

In support of his application, applicant provides a copy of DD Form 214, Certificate of Release or Discharge From Active Duty, a certified letter from the State of New Jersey, copies of AF Form 911, Senior Enlisted Performance Report, copies of AF Forms 910, Enlisted Performance Reports, and copies of AF Forms 77, Supplemental Evaluation Sheets. 

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

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STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 24 July 1981 and was progressively promoted to the grade of master sergeant. He was honorably retired effective 31 July 2001 in the grade of master sergeant, after serving 20 years and 7 days. 

On 5 August 1998, the applicant was notified by his commander of his intent to impose punishment under Article 15 of the UCMJ for the applicant being absent without authority (AWOL) from his place of duty.  The applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment. On 12 August 1998, his commander determined he committed the offense alleged, and imposed punishment consisting of suspended reduction to the grade of technical sergeant and a reprimand.  The appeal authority denied the applicant's appeal of the punishment. 

The applicant was tentatively selected for promotion to the grade of senior master sergeant during the 98E8 promotion cycle. He received a promotion sequence number (PSN) of 707.0, which would have incremented on 1 September 1998; however, a suspended reduction imposed by the Article 15 automatically rendered him ineligible for promotion. 

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial and states the applicant has not shown a clear error or injustice. 

The application should be denied for two reasons. First, the application is extremely untimely and serves as an ideal example of why the statute requires an application be submitted within three years. The applicant has made some accusations the commander used improper basis for the Article 15 and relied on emotions, rather than facts in making his decision. With so much time passed since the time of the Article 15 action, it is nearly impossible to investigate these contentions. Additionally, the applicant states his Article 15 was for exceeding his authority, yet the Air Force Automated Military Justice Analysis and Management System (AMJAMS) indicates the charged offense was AWOL. It is simply not possible to clear-up this difference since the applicant did not provide further information and since he waited such a long time to submit his application. 

Ultimately, the applicant's claim seems to be based upon his assertion he served faithfully for 20 years. He does not actually deny that he committed the charged offense. The records show the applicant's rights during the Article 15 process were fully observed. Throughout the process, defense counsel represented him; he had opportunities to present any extenuating or mitigating evidence to his commander as part of the Nonjudicial Punishment proceedings; and he was given the right to appeal the commander's findings to the commander's superior officer. When the applicant's appeal was denied, the Article 15 action was found legally sufficient by legal reviews conducted at two different levels of command. The application falls far short of making a case for an error or injustice. The commander was in the best position to carefully weigh all of the evidence, make informed findings of fact, and arrive at a suitable punishment. The punishment imposed was appropriate--a suspended reduction in grade was an authorized and commensurate punishment. 

The complete AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSOE states they defer to the recommendation of AFLOA/JAJM regarding the removal of the Article 15. 


The complete AFPC/DPSOE evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 24 April 2009 for review and comment within 30 days.  As of this date, this office has received no response.

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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 an error or an injustice.  We carefully reviewed the applicant's complete submission in judging the merits of this case; however, given the circumstances of this case, we are not persuaded by the evidence presented that the nonjudicial punishment initiated was improper or unjust.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  The evidence indicates that, during the processing of this Article 15 action, the applicant was offered every right to which he was entitled.  He was represented by counsel, waived his right to demand trial by court-martial, and submitted matters for review by the imposing commander.  After considering the matters raised by the applicant, the commander determined that he had committed the offense alleged and imposed punishment. The applicant has not provided sufficient evidence showing the imposing commander or the reviewing authority abused their discretionary authority; his substantial rights were violated during the processing of the Article 15 punishment; or the punishment exceeded the maximum authorized by the UCMJ.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application.

5.  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-2009-00353 in Executive Session on 9 June 2009, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2009-00353:

	Exhibit A.	DD Form 149, dated 23 Jan 09, w/atchs.
	Exhibit B. Letter, Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLOA/JAJM, dated 10 Mar 09.
	Exhibit D.	Letter, AFPC/DPSOE, dated 26 Mar 09.
	Exhibit E.	Letter, SAF/MRBR, dated 24 Apr 09.




 				
						Panel Chair






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