RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-03942
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
a. His Article 15 and all punishments involved be expunged.
b. His three years of lost time be returned.
c. One year of not being allowed to test rewarded.
d. Enlisted Performance Reports (EPRs) ending Aug 06 and Oct
07 be removed and voided.
e. He be considered for promotion to the grade of technical
sergeant (TSgt) for 2009 technical sergeant (E6) promotion cycle.
f. He be considered for a follow-on assignment to Kadena,
Yokota, Bitburg, or Spangdahlem.
g. He be considered for a Permanent Change of Station (PCS)
medal.
h. He be given a floor to speak with the Air Force Inspector
General about his issues.
i. A board convenes when punishments of this nature are handed
down.
j. The three years of lost time it has taken to correct his
records be returned.
__________________________________________________________________
APPLICANT CONTENDS THAT:
Since Nov 06, he has been seeking assistance to have a wrong set
right; the evidence logically reviewed a reprisal set right.
He was secretly given a 4 EPR without justification. He
believes his original EPR ending 6 Aug 06 was a 5 and was
signed by his supervisor. However, the date was changed to
15 Aug 06 which he believes is an injustice.
The issue has put his life in limbo and his career on hold. He
is not asking for anyone to be punished or get in trouble but
asking for a resolution or an end.
He has consulted with various first sergeants, legal counselors,
peers and other wing agencies (Military Equal Opportunity, Area
Defense Counsel and chain of command). He has also written his
Congresswoman and Inspector General Offices. Key information was
not submitted during the processing of his Article 15.
In support of his request, the applicant provides a 14 page
statement with attachments discussing the events leading to the
Article 15, military service records and a Freedom of Information
Act (FOIA) request.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is currently serving in the Air Force in the grade
of technical sergeant.
On 7 Feb 07, the applicant visited the MEO office because he felt
his flight commander, Captain J, was picking on him and had given
him a letter of counseling (LOC) for unfounded acts. He stated
that no matter what he Captain J always found fault in it. In
addition, Captain J has anger issues and sometimes flies off the
handle. The applicant was asked if his concerns with Captain J
fell within the MEO purview and he stated he did not feel they
did at that time.
According to the MEO Record of Assistance dated 13 Feb 07, the
MEO technician conducted a follow-up session with the applicant.
The applicant stated he was receiving assistance from the lowest
level to address his concerns. Further, the applicant expressed
he had no concerns surrounding reprisal. No additional follow-up
was required and the MEO technician closed his case
On 9 Aug 07, the applicant was offered nonjudicial punishment
under Article 15, Uniform Code of Military Justice (UCMJ). He
was charged with one specification of being absent without
authority, in violation of Article 86, UCMJ, and one
specification of disobeying a lawful order, in violation of
Article 92, UCMJ.
On 14 Aug 07, the applicant consulted counsel, waived his right
to trial by court-martial and accepted the Article 15. He
submitted a statement on his behalf and made a personal
appearance before the commander.
On 27 Aug 07, the commander decided the applicant had committed
the alleged offenses and imposed punishment consisting of
reduction to the grade of senior airman, reprimand and forfeiture
of $1,031 pay per month for two months. The portion of
punishment which extended to reduction in grade and forfeiture of
pay were suspended through 26 Feb 08, at which time they were to
be remitted without further action unless sooner vacated. On
28 Aug 07, the applicant decided not to appeal the commanders
decision. On 29 Aug 07, the Staff Judge Advocate (SJA) and
General Court-Martial Convening Authority (GCMCA) reviewed the
case and found it legally sufficient.
On 4 Oct 07, the applicant received a referral EPR for the period
6 Aug 06 through 3 Oct 07.
On 2 Jul 08, the applicant wrote his Senator requesting his case
be looked into from a different perspective.
On 29 Jan 09, the applicant filed an Inspector General (IG) claim
for the Article 15 he states was improperly issued. On 6 Feb 09,
the IG notified the applicant they had completed a complaint
analysis, were unable to assist him and were dismissing his
complaint.
The remaining relevant facts pertaining to this application are
contained in the letters prepared by the appropriate offices of
the Air Force, which are attached at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial of the applicants request to set
aside and remove the nonjudicial punishment he received from his
records. JAJM states, ultimately, the applicant has not raised
any genuine doubt as to his guilt of the offenses for which he
was punished or established any error on injustice in the Article
15 action such that a set aside would be in the best interests of
the Air Force. Based on the evidence presented in the case and
considering the other factors mentioned by the applicant, the
commander was clearly not acting in an arbitrary or capricious
manner when he found nonjudicial punishment appropriate in this
case. Further, the punishment imposed was appropriate to the
offense and not unfairly harsh.
The complete JAJM evaluation is at Exhibit C.
HQ AFPC/DPAPP recommends denial of his request for reinstatement
of a previous follow-on assignment. DPAPP states he could not
obtain the necessary retainability due to his high year tenure
(HYT). DPAPP further states, the members spouse was provided an
overseas returnee assignment to Columbus Air Force Base,
Mississippi and the applicant was provided a join-spouse
assignment since their join-spouse assignment intent code
indicated they desired to be assigned at the same location.
The complete DPAPP evaluation is at Exhibit D.
HQ AFPC/DPSIDE did not provide a recommendation. DPSIDE
forwarded his application to the Evaluation Report Appeals Board
(ERAB) and they returned his request without action. In
addition, DPSIDE stated the applicant had not provided
substantiated evidence to justify why his Aug 06 and Oct 07 EPRs
were unjust, inaccurate and should be removed.
The complete DPSIDE evaluation is at Exhibit E.
HQ AFPC/DPSOE makes no recommendation but addresses the promotion
eligibility/testing issue. DPSOE states the applicant was
eligible and tested on 23 Mar 07 for promotion to the grade of
(E6) during cycle 07E6. However, he became ineligible in Aug
when he received an Article 15 for being absent without leave
(AWOL) and disobeying a lawful order. His punishment consisted
of a suspended reduction to the grade of senior airman, suspended
forfeiture of $1,031 pay per month for two months and a
reprimand. He also received a referral EPR for the period 6 Aug
06 through 3 Oct 07. The suspended bust and referral EPR
rendered him ineligible for promotion cycle 07E6. He remained
ineligible for promotion consideration during cycle 08E6 as his
nonreferral EPR (3 Oct 08) did not close out until after the
promotion eligibility cutoff date (31 Dec 07) for that cycle.
The applicant was considered and nonselected for promotion to
E6 during cycle 09E6; however, he became a select during cycle
10E6 with a date of rank (DOR) of 1 Apr 10.
The complete DPSOE evaluation is at Exhibit F.
HQ AFPC/DPTOS did not provide a recommendation. DPTOS states
upon review of the members records, the applicant has no lost
time in the Military Personnel Data System (MilPDS).
The complete DPTOS evaluation is at Exhibit G.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
With regard to his request to remove and void the EPRs from Aug
06 and Oct 07, the applicant states he cannot submit anything to
the ERAB without having first corrected the Article 15, because
the 07 EPR hinges solely on the decision regarding the Article
15.
With regard to his request to reinstate his previous follow-on
assignment choices, the applicant states the decision to deny his
follow-on based on high year of tenure (HYT) is arbitrary and was
very suspicious after the repeated number of requests sent to
AFPC for three months, and the amount of phone calls with no
response.
With regard to his request for award of a PCS medal, the
applicant states if his record at the time of his PCS did not
reflect the 3 and 4 EPRs then maybe he would have been awarded
the PCS medal.
With regard to his request to have lost time returned, the
applicant states he is referring to the years it has taken him in
the process of getting his records corrected. He has lost time
in not being able to test. All his hard work was torn down by
favoritism, fraternization and in his opinion hatred.
The applicants complete evaluation is at Exhibit I.
_________________________________________________________________
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 to warrant
setting aside the applicants Article 15. After a thorough
review of the evidence of record and the applicant's complete
submission, to include his multiple responses to the Air Force
evaluations, we do not find his uncorroborated assertions
sufficiently persuasive to override the rationale provided by
the Air Force office of primary responsibility (OPR). Therefore
we agree with the opinion and recommendation of HQ Air
Force/AFLOA and adopt its rationale as the basis for our
conclusion the applicant has not been the victim of an error or
injustice regarding this issue. The applicant requests his EPR
ending 5 Aug 06 be removed from his record. However, we note
the ERAB denied his request due to a lack of evidence. After
carefully reviewing the evidence provided, we too find
insufficient evidence that would warrant removal of the
contested report. We also considered his request to remove the
EPR closing 3 Oct 07 from his record. Again, we find
insufficient evidence that would warrant the removal of this
report, particularly in view of our finding related to the
Article 15 he received. The applicant requests he be granted a
PCS award. However, AFI 36-2803 clearly states, No individual
is automatically entitled to an award upon completion of an
operational TDY or departure for an assignment. Based on our
findings related to the Article 15 and EPRs, we find no error or
injustice in his not receiving an award upon PCS. Additionally,
we also do not find a basis to grant his request for promotion
consideration to the grade of technical sergeant or to reinstate
the follow-on assignment he was previously granted. In view of
the above, we agree with the opinions and recommendations of the
Air Force OPRs (AFPC/DPSIDR, DPAPP, DPSIDE, and DPSOE) and adopt
their rationale as the basis for our conclusion the applicant
has not been the victim of an error or injustice. We also note
the applicant requests a floor to speak with the Air Force
Inspector General and his suggestion to convene boards for other
similarly situated, these are not requests that fall within the
purview of the Board. In the absence of persuasive 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 the Board's 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 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 Docket Number BC-
2010-03942 in Executive Session on 25 Oct 11, under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2010-03942 was considered:
Exhibit A. DD Form 149, dated 14 Oct 10, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. AFLOA/JAJM, Letter, dated 26 Apr 11.
Exhibit D. AFPC/DPAPP, Letter, dated 4 May 11.
Exhibit E. AFPC/DPSIDE, Letter, dated 2 Jun 11.
Exhibit F. AFPC/DPSOE, Letter, dated 16 Jun 11
Exhibit G. AFPC/DPTOS, Letter, dated 28 Jul 11.
Exhibit H. SAF/MRBC, Letter, dated 18 Aug 11.
Exhibit I. Applicants Letter, dated 17 Sep 11.
Panel Chair
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