RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-02497
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. His Article 15 imposed on 13 September 2010 be set aside and
all rights and privileges be restored.
2. His grade of master sergeant (E-7) be restored with an
effective date of 1 June 2004.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Despite his outstanding record, his commander abused his
discretion by reducing him in rank four months before his
retirement for a single occurrence of being late for work due to
oversleeping. His commanders actions were harsh and unjust.
In support of his appeal, the applicant provides a personal
statement and copies of an information letter; Inspector General
(IG) Complaints; appeal of Article 15; response to Article 15;
Article 15 action; witness statements; electronic communications;
IG response; Complaint of Wrongs under Article 138, Uniform Code
of Military Justice (UCMJ); Request for Redress; selection for
deployment notification, a No-Show for Promotion Testing, Leave
and Earnings Statement; retirement calculator documents; award
documents; performance reports; and congressional inquiry
documentation.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is a former member of the Regular Air Force who
served from 5 June 1987 to 31 May 2011. He served as a Material
Management Craftsman and was progressively promoted to the grade
of master sergeant (E-7) effective 1 June 2004.
The applicant received non-judicial punishment on 13 September
2010 for two incidents of failure to go at the time prescribed to
his appointed place of duty in violation of Article 86, UCMJ. He
received punishment consisting of reduction in grade to technical
sergeant (E-6) with a new date of rank of 13 September 2010;
forfeiture of $1,742 pay per month for two months, suspended
through 12 March 2011; and 14 days extra duty.
The applicant was released from active duty on 31 May 2011 and
retired effective 1 June 2011 in the grade of technical sergeant.
He served 23 years, 11 months, and 26 days o active duty.
The remaining relevant facts, extracted from the applicants
service records, are contained in the advisory opinions prepared
by the Air Force offices of primary responsibility at Exhibits C
and D.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states the applicants
commander offered the applicant non-judicial punishment on
31 August 2101 for two instances of failing to go to his
appointed place of duty, in violation of Article 86, UCMJ. The
applicant consulted with defense counsel and accepted the Article
15, waiving his right to demand trial by court-martial. He
presented written matters to the commander, but did not make a
personal appearance. On 13 September 2010, the commander decided
the applicant had committed the alleged offenses and imposed
punishment consisting of reduction to the grade of technical
sergeant, suspended forfeiture of $1,742 pay per month for two
months, and 14 days extra duty. The applicant appealed the
commanders decision and provided matters in writing; however,
both his commander and the appellate authority denied the appeal.
The Article 15 action was reviewed and found to be legally
sufficient.
JAJM indicates that an examination of the applicants Article 15
shows no error or injustice. There appear to be no deficiencies
in the exercise of any of the applicants rights to due process
or assistance of counsel. His claim of injustice is not well-
founded. First, the Article 15 was for two separate instances of
the applicant failing to go to his appointed place of duty, not
for a single occurrence of being late for work due to
oversleeping, as contended by the applicant. Second, the
evidence of the applicants failure to go fully supports the
commanders decisions. In fact, the statements from the people
involved in the applicants two instances of failure to go which
are included in the application, are sufficient evidence for the
commander to determine that non-judicial punishment was
warranted. The applicants commander was in the best position to
evaluate the evidence available and to consider the applicants
submission of additional matters.
It is JAJM opinion that based on the evidence presented and
considering the other factors mentioned by the applicant, the
commander was clearly not acting in an arbitrary or capricious
manner when he found non-judicial punishment appropriate in this
case. Furthermore, the punishment imposed was appropriate to the
offense and not unfairly harsh.
The complete AFLOA/JAJM evaluation is at Exhibit C.
AFPC/DPSOE defers to the JAJM recommendation. DPSOE states that
AFLOA/JAJM has reviewed this case, found no error or injustice,
and recommends denial.
The complete AFPC/DPSOE evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant
on 16 September 2011, for review and comment within 30 days. As of
this date, this office has received no response.
_________________________________________________________________
THE BOARD DETERMINES 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. We took notice
of the applicant's complete submission in judging the merits of
the case; however, we agree with the opinion and recommendation
of the Military Justice Division and adopt its rationale as the
basis for our conclusion that the applicant has not been the
victim of an error or injustice. Therefore, in the absence of
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 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 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-
2011-02497 in Executive Session on 2 February 2012, under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered in connection
with AFBCMR Docket Number BC-2011-02497:
Exhibit A. DD Form 149, dated 1 Jun 11, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 1 Aug 11.
Exhibit D. Letter, AFPC/DPSOE, dated 30 Aug 11.
Exhibit E. Letter, SAF/MRBR, dated 16 Sep 11.
Panel Chair
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