RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-04464
            INDEX CODE:  126.04, 131.00

      XXXXXXX    COUNSEL:  THE AMERICAN LEGION

            HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His nonjudicial punishment (NJP) under Article 15  he  received  in
May 2008 be set aside and his rank of  master  sergeant  (MSgt)  be
restored.

___________________________________________________________________

APPLICANT CONTENDS THAT:

His rank of MSgt which was  taken  from  him  prior  to  retirement
should be returned.  After serving his country for  over  26  (sic)
years he had an  unfortunate  incident  during  his  last  year  of
service, which led to the lost of his MSgt  stripe  and  subsequent
retirement.  He made what appears to be a threatening phone call to
an establishment in Florida; however, there was no ill  intent  and
was only a  poor  attempt  on  his  part  at  humor.   He  was  not
prosecuted for  the  offense  and  it  appeared  the  incident  was
resolved until his commander decided otherwise.

He had been a friend with the establishment for  over  four  years,
and after his attorney explained the situation,  the  establishment
requested the civilian  charges  be  dropped.   This  is  when  his
commander decided to give him an  Article  15.   His  area  defense
counsel questioned whether the Air Force had jurisdiction in  light
of the charges being dropped; however, he never received an answer.
 He felt that once he accepted the charges, he  would  be  able  to
explain the situation since he was not guilty of an offense.

He never received a fair hearing and his guilt and  punishment  was
predetermined.

In  support  of  his  appeal,  the  applicant  submits  a  personal
statement,  a  copy  of  his  court  case   dismissal,   an   email
correspondence, and several letters of character reference.

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

___________________________________________________________________

STATEMENT OF FACTS:

The applicant, while serving as a MSgt, on  or  about  30  Jan  08,
telephoned a local hair salon and allegedly said, “I’ll  blow  your
company, blast all the plugs, all the hair dryers, all the shampoo,
if you don’t call me  back.”   On  that  same  date,  civilian  law
enforcement authorities arrested the applicant.  Subsequent to  the
arrest, the state prosecutor, at the  request  of  the  hair  salon
declined to prosecute the case.

On 15 Apr  08,  the  applicant’s  commander  offered  the  NJP  for
wrongfully threatening to  damage  the  hair  salon’s  property  in
violation of Article 134 of the Uniform Code  of  Military  Justice
(UCMJ).  Upon consulting with counsel, the applicant  accepted  the
NJP proceedings and waived his right  to  demand  trial  by  court-
martial.  He presented written matters to and  personally  appeared
before the commander, who  on  1  May  08,  decided  the  applicant
committed the alleged  offense.   The  punishment  consisted  of  a
reduction to the grade of technical sergeant (TSgt), forfeiture  of
$1621.00 pay per month for two months (suspended) and a  reprimand.
The applicant appealed the charges; however, the appeal was  denied
by both the commander and the appellate authority.  A legal  review
found the NJP action legally sufficient.  On 3 Sep  08,  under  its
delegated  authority  by  the  Secretary  of  the  Air  Force,  the
Secretary of the Air Force Personnel  Council  (SAF/PC)  determined
the applicant did not serve satisfactorily in any higher grade, and
the Air Force would not advance him on  the  Retired  List  to  the
grade of MSgt.

On 1  Aug  08,  the  applicant  was  honorably  retired  under  the
provisions of AFI 36-3203 in the grade of TSgt.   He  was  credited
with 25 years, 9 months, and 18 days of service for retirement.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSOR recommends  denial  of  the  applicant’s  request  to
retire in the higher grade of MSgt or to advance him to that  grade
on  the  Retired  List  under  Title  10  USC  Section  8964.   The
recommendation was on the basis that  no  error  or  administrative
issue existed by either  the  commander  or  the  Air  Force  which
hindered SAF/MRB’s review of the applicant’s record.

The complete HQ AFPC/DPSOR  evaluation,  with  attachments,  is  at
Exhibit B.

AFLOA/JAJM recommends denial, stating, in part, the  applicant  has
not shown a clear error or injustice.  They note that as  a  matter
of discussion, NJP is authorized by Article 15, UCMJ (Title 10  USC
Section 815), and governed by the Manual for  Courts-Martial  (MCM)
(Part V) and AFI 51-202, Nonjudicial  Punishment.   This  procedure
permits commanders to dispose of certain offenses without trial  by
court-martial unless the service member objects.   Service  members
first must be notified by their commanders of  the  nature  of  the
charged offense, the evidence  supporting  the  offenses,  and  the
commander’s intent to impose NJP.  The member may  consult  with  a
defense counsel to determine whether to accept NJP  proceedings  or
demand trial by court-martial.  Accepting the proceedings is simply
a choice of forum; it is not an admission of guilt.   Nor  is  NJP,
when imposed, a criminal conviction.

The MCM and AFI  51-202  provides  for  certain  relief  from  NJP,
specifically, mitigation, remission, suspension, and set aside.   A
set aside of NJP is the removal of the punishment from  the  record
and the restoration of their service member’s  rights,  privileges,
pay, or property affected by the punishment, as if the  action  had
never been initiated.  Set aside of punishment should not routinely
be granted.  Rather, set aside is to be used strictly in  the  rare
and unusual  case  where  a  genuine  question  about  the  service
member’s guilt arises or where the best interests of the Air  Force
would  be  served.   In  this  case,  although  the  applicant  has
effectively requested set aside, he  has  not  raised  any  genuine
doubt as to his guilt of the offense for which he was  punished  or
established any error or injustice in his NJP action  such  that  a
set aside would be in the best interest s of the Air Force.

While the applicant claims that he did not intend his statement  to
the victim to be a threat, he notably does not deny  that  he  made
the statement.  His dubious claim that he was trying to be funny is
the only explanation offered in  the  application.   It  falls  far
short of supporting his case for error or  injustice.   Ultimately,
whether  the  statement  was  an  unlawful  threat  was  a  factual
determination to be made by the commander.  The applicant  had  the
opportunity to present any evidence in his favor to  his  commander
as part of the NJP proceeding.  Insofar as the  applicant  did  so,
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.  If the  applicant  believed  the  commander’s
decision was in error, his recourse  was  to  appeal  to  the  next
higher authority, which he did.  The appellate authority considered
all  of  the  matters  presented  in  the  appeal  and  upheld  the
punishment.   Lastly,  the  punishment  was  appropriate  and   not
unfairly  harsh.   Reduction  in  grade  was  an   authorized   and
commensurate punishment for the offense, notwithstanding  that  the
punishment, which only occurred because of the applicant’s conduct,
was near in time to the applicant’s retirement.

The  complete  AFLOA/JAJM  evaluation,  with  attachment,   is   at
Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In response to the Air Force evaluation, the local American  Legion
provides a  statement  on  the  applicant’s  behalf,  which  is  at
Exhibit F.

___________________________________________________________________

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.  We took notice of
the applicant's complete submission in judging the  merits  of  the
case.  However, in our  view,  the  Air  Force  office  of  primary
responsibility and the  Air  Force  Legal  Operations  Agency  have
adequately addressed the issues presented by the applicant  and  we
are in agreement with their opinion and recommendation.  We find no
evidence of an error or injustice  that  occurred  during  the  NJP
proceedings; nor has the  applicant  provided  any  evidence  which
would lead us to believe the NJP was contrary to the provisions  of
the governing directives, unduly harsh, or disproportionate to  the
offenses committed, which resulted in his retirement in  the  grade
of technical sergeant.  The applicant provided a personal statement
and letters of character reference in support of his appeal to have
his  NJP  set  aside.   However,  we  did  not  find  the  evidence
sufficient to persuade the Board the NJP action should be set aside
or that his rank to master sergeant should be restored.  Therefore,
in the absence of persuasive evidence to the contrary, we  find  no
compelling basis to recommend granting the requested relief.

___________________________________________________________________

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-2008-04464 in Executive Session  on  29  July  2009,  under  the
provisions of AFI 36-2603:

      Mr. Joseph D. Yount, Panel Chair
      Ms. Barbara J. Barger, Member
      Mr. Grover L. Dunn, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Dec 08, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPSOR, dated 19 Dec 08, w/atchs.
    Exhibit D.  Letter, HQ AFLOA/JAJM, dated 29 Jan 09.
    Exhibit E.  Letter, SAF/MRBR, dated 6 Feb 09.
    Exhibit F.  Letter, American Legion, dated 19 Feb 09.




                                   JOSEPH D. YOUNT
                                   Panel Chair