RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-01771 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

THE APPLICANT REQUESTS THAT: 

 

1. His Article 15, dated 13 Feb 01 be removed. 

 

2. His Special Court-Martial convictions of 2 Dec 03 and 
13 Jan 04 be removed. 

 

2. His highest grade held of Staff Sergeant (SSgt/E-5) be 
restored and he be retired in that grade. 

 

3. Direct promotion to technical sergeant (TSgt/E-6) 

 

4. His 10 months of correctional custody be replaced with 
10 months of active duty service. 

 

5. He receive 20 times his base pay, in the grade of SSgt, 
including Basic Allowance for Housing (BAH) and Basic Allowance 
for Subsistence (BAS). 

 

6. Medical treatment for his spouse. 

 

________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

The Article 15 should be set aside because the order he violated 
was unlawful. He contends 1) his vehicle was unlawfully 
searched without his consent; 2) he was unlawfully ordered to 
show proof of insurance, vehicle registration, a valid license 
plate, and base decals; and (3) he was unlawfully ordered to 
refrain from driving his vehicle until he complied with the 
order. 

 

His 2003 Special court-martial conviction should be set aside 
because he did not disrespect the master sergeant (MSgt/E-7); 
instead it was merely the result of “miscommunication and 
misunderstanding.” Further, that his assault on his wife was in 
self-defense, because “it is a natural reaction for any man to 
stop anyone from squeezing and twisting their testicles.” 

 


He has an 80 percent service-connected disability rating from 
the Department of Veterans Affairs (DVA) for severe depression 
with an anger condition, Post-Traumatic Stress Disorder (PTSD), 
chronic pain in the joints and a knee operation. He makes many 
appointments with the DVA for treatment of his mental and 
physical conditions and can now mentally face all of this. 

 

In support of his appeal, the applicant provides three separate 
DD Forms 149, Application for Correction of Military Record, 
same date; two personal statements, dated 6 and 14 May 10; a 
copy of his Area Defense Counsel’s letter requesting the Article 
15 be set aside; a copy of his DD Form 214, Certificate of 
Release or Discharge from Active Duty, issued in conjunction 
with his 31 Dec 04 separation, and other supporting documents. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The relevant facts pertaining to this application, extracted 
from the applicant’s military records, are contained in the 
letters prepared by the appropriate offices of the Air Force and 
the Air Force Legal Operations Agency (AFLOA). Accordingly, 
there is no need to recite these facts in this Record of 
Proceedings. 

 

________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial, stating, in part, the applicant 
has not shown a clear error or injustice. 

 

In regard to the 2001 Article 15 action, the applicant asserts 
the inconsistency between the vehicle registration and the 
temporary license plate was the result of a car dealer’s error. 
The dealership resolved the error by issuing permanent plates 
and registration, and he received his base decals. He was 
advised by a TSgt, that only a person with authority delegated 
by the Wing vice commander could suspend driving privileges and 
that he was “legal” to drive his vehicle. He then returned to 
his duty section and waited nearly an hour for the MSgt to 
return and then drove his vehicle home. 

 

The applicant does not contest the fact that he drove his 
vehicle in violation of his supervising noncommissioned 
officer’s written order. Moreover, the applicant does not 
contest or even address the separate ground for his nonjudicial 
punishment; disrespect toward a superior noncommissioned 
officer. Nor does he contest or address the dereliction of duty 
basis for the vacation of his suspended reduction of rank. 


Rather, the applicant simply challenges one component of one of 
the bases for his nonjudicial punishment—the lawfulness of the 
order he disobeyed. The applicant had a full opportunity to 
present his defense to his commander during the Article 15 
proceedings. And later, in a 12 May 03 memorandum, the 
applicant’s defense counsel thoroughly addressed the lawfulness 
of the order and requested that the Article 15 be set aside. 

 

None of the circumstances discussed by the applicant or 
presented in his record establish an error or injustice in the 
Article 15 action, or otherwise warrants setting aside the 
reduction in rank imposed by the applicant’s commander. 
Moreover, the applicant’s allegations provide no basis for 
disturbing the commander’s judgment of the facts and 
circumstances of the offense or the appropriate punishment. The 
commander fully considered the punishment of reduction of rank—
and exercised restraint in originally suspending that 
punishment. The punishment was an authorized and commensurate 
punishment in this case. 

 

In regard to the 2002 and 2003 Special courts-martial, the 
applicant does not allege any error or injustice resulting from 
the 2002 court-martial; however, he contends that he did not 
disrespect a senior noncommissioned officer (SNCO) or assault 
his wife—the charges that formed the basis of his 2003 court-
martial. The applicant pled guilty, the military judge 
conducted a lengthy inquiry to determine whether the applicant’s 
pleas were voluntary and that he had committed the offenses. 
Contrary to the applicant’s claim that his interaction with the 
SNCO was a simple “misunderstanding,” he told the court that he 
had argued with the SNCO on three separate occasions—and 
persisted when the SNCO told him to stop arguing. He also told 
the court that he agreed that his behavior was disrespectful. 

 

While clemency may be granted, the applicant has not presented 
any additional information which supports the Board granting 
clemency and undoing the decisions of the panel and the 
convening authority made nearly seven years ago. Certainly, the 
applicant has not provided any support for the idea that he has 
turned his life around or that he has made a difference in his 
community—factors that might also warrant some consideration for 
clemency. On the contrary, he refuses to accept responsibility 
for the actions that led to multiple Article 15 actions and two 
court-martial convictions. 

 

The complete AFLOA/JAJM evaluation is at Exhibit C. 

 

AFPC/DPSOR recommends denial to retire the applicant in any 
higher grade than airman (Amn) and not advance him on the 
Retired list to any higher grade than airman first class (A1C) 
as has already been determined by the Secretary of the Air Force 
Personnel Council (SAFPC). 

 


The applicant contends that the incidents leading to his 
reduction from SSgt to SrA and from SrA to Amn were the result 
of error or injustice due to “miscommunication and 
misunderstanding.” 

 

The applicant retired in the grade of Amn effective 1 Jan 05, 
with 20 years and 10 days of total active Federal military 
service (TAFMS). The Air Force promoted the applicant to the 
grade of SSgt with an effective date of 1 Sep 93 and reduced him 
to the grade of SrA effective 13 Feb 01. On 27 Jan 04, he was 
reduced to the grade of Amn as a result of a court-martial 
conviction. Between the date of his reduction to the grade of 
Amn (27 Jan 04) and his last day on active duty (31 Dec 04), the 
applicant held no higher grade than Amn. 

 

Because the applicant held the grade of Amn on the date of his 
retirement, his record correctly reflects his retired grade as 
Amn. The applicant’s case was forwarded to SAFPC for a 
determination as to whether the Air Force would advance the 
applicant on the Retired list to a higher grade than Amn when 
the applicant’s time on active duty and time on the Retired list 
totals 30 years in accordance with Title 10, United States Code 
(USC), Section 8964. SAFPC determined that the applicant did 
not serve satisfactorily in the higher grade of SSgt but that he 
did serve satisfactorily in the grade of A1C and would advance 
to the grade of A1C effective 21 Dec 2014, 30 years from his 
adjusted total active Federal military service date (TAFMSD) for 
the 255 days of lost time. 

 

The complete AFPC/DPSOR evaluation, with attachment, is at 
Exhibit D. 

 

AFPC/DPSOE recommends denial of the applicant’s request for 
promotion to TSgt, a grade for which the applicant was never 
selected. 

 

Based on the applicant’s date of rank (DOR) to SSgt during cycle 
94A5, he was considered and nonselected for promotion to TSgt 
five times before his retirement in Jan 05. He was ineligible 
for promotion during cycle 01E6 due to the Article 15. He 
became ineligible for subsequent promotion cycles due to the 
vacation of the suspended reduction on 9 Jul 01, which he 
subsequently was reduced to the grade of SrA with a new DOR of 
13 Feb 01. Based on this DOR, he would have been eligible for 
promotion consideration to SSgt for cycle 02E5; however, he 
received a referral enlisted evaluation report (EPR) for the 
period 2 Nov 00 – 1 Nov 01. He remained ineligible for 
consideration during cycle 03E5 due to another referral EPR for 
the period 2 Nov 01 – 30 Dec 02. He was court-martialed in 
Jan 03 and in Mar 04, the latter of which, his punishment 
consisted of a reduction to Amn with a new DOR of 27 Jan 04 and 
10 months confinement. 

 

The complete AFPC/DPSOE evaluation is at Exhibit E. 


 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 13 Aug 10 for review and comment within 30 days. 
As of this date, no response has been received by this office 
(Exhibit F). 

 

________________________________________________________________ 

 

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. The Air Force 
Offices of primary responsibility (OPRs) and the Air Force Legal 
Operations Agency have adequately addressed the issues presented 
by the applicant and we find no evidence of error in this case 
and after thoroughly reviewing the documentation that has been 
submitted in support of his appeal, we do not believe he has 
suffered an injustice. Therefore, based on the available 
evidence of record, we find no basis upon which to favorably 
consider this application. 

 

________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2010-01771 in Executive Session on 10 February 2011, 
under the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 14 May 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 2 Jul 10. 

 Exhibit D. Letter, AFPC/DPSOR, dated 12 Jul 10, w/atch. 

 Exhibit E. Letter, AFPC/DPSOE, dated 6 Aug 10. 


 Exhibit F. Letter, SAF/MRBR, dated 13 Aug 10. 

 

 

 

 

 Panel Chair