RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03623 

 COUNSEL: NONE 

 HEARING DESIRED: Not Indicated 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His rank of staff sergeant (SSgt) (E-5) be restored. 

 

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APPLICANT CONTENDS THAT: 

 

He was reduced in grade due to an Article 15 punishment he 
received on 21 April 2011. He requested suspension of his 
punishment (which the commander ultimately supported) on the last 
day such action could be taken. However, his request did not 
reach his commander until three days later, outside the window 
within which such a request may be made under the Manual for 
Courts-Martial. His commander indicated that no one tried to 
contact her on the day the request was made (while it was still 
timely). As a result, his Defense Counsel proposed, and his 
commander agreed, to set-aside the Article 15 instead, because a 
set-aside action does not have a strict time limit. However, the 
legal office indicated they “were not able to meet the criteria 
for the set-aside action.” 

 

In support of his appeal, the applicant provides a statement from 
the imposing commander, electronic communications, Release of 
Military Defense Counsel Memorandum, Request for Suspension of 
Non-judicial Punishment, several character references, and an 
excerpt of Manual for Courts-Martial, Part V. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving in the Regular Air Force in 
the grade of senior airman (SrA) (E-4). On 14 April 2011, while 
serving in the grade of SSgt, the applicant received non-judicial 
punishment under Article 15, Uniform Code of Military Justice 
(UCMJ) for driving while intoxicated. He was charged with one 
specification of driving while drunk in violation of Article 111, 
UCMJ. 

 

On 19 April 2011, the applicant waived his right to demand trial 
by court-martial and accepted non-judicial punishment. He 


subsequently consulted a lawyer, attached a written presentation, 
and requested a personal appearance before the commander. 

 

After weighing the evidence, as well as the matters presented by 
the applicant, the commander found the applicant had committed 
the offense and imposed punishment consisting of reduction to the 
grade of SrA with a new date of rank of 21 April 2011, and 
14 days extra duty. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states there is no question 
about the processing of the original Article 15 and a review of 
that action shows no error in its processing. The applicant was 
given all of his rights throughout the process. He was able to 
present matters (with the assistance of legal counsel) to the 
commander for consideration before imposition of punishment and 
he was able to appeal the decision of his commander. 

 

The applicant’s claim of error or injustice relates to the 
inability of his commander to process a supplemental action to 
the Article 15. Supplemental actions to non-judicial punishments 
are guided by Part V of the Manual for Courts-Martial and Air 
Force Instruction (AFI) 51-202, Chapter 5. In this case, the 
applicant requested his commander suspend his reduction in grade. 
Manual for Courts-Martial, Part V, paragraph 6.a(1), indicates 
that “an executed punishment of reduction or forfeiture of pay 
may be suspended only within a period of 4 months after the date 
of execution.” The applicant’s non-judicial punishment was 
executed on 21 April 2011. His request for suspension was dated 
17 August 2011 and submitted to the acting first sergeant on 
19 August 2011. The commander was not informed of the request 
until 22 August 2011, which falls outside the 4 months or 120 day 
window for allowing suspension of the punishment. As a result, 
the commander requested (with the concurrence of the group 
commander) to set aside the applicant’s Article 15 and impose a 
separate non-judicial punishment action for the same offense, but 
which would presumably not include as part of the punishment 
unsuspended reduction to the grade of SrA. 

 

JAJM states that the power to set-aside punishment should 
ordinarily be exercised only when the authority considering the 
case believes that, under all circumstances of the case, the 
punishment has resulted in clear injustice. AFI 51-202, 
paragraph 5.7, sets forth guidelines for the period within which 
a set-aside can be processed as not any longer than four months 
after execution of the punishment, unless the commander 
determines unusual circumstances exist and explains them in an 
attachment to the Air Force Form 3212, Record of Supplemental 
Action Under Article 15, UCMJ. 

 


In the applicant’s case, it is clear his request for a set-aside 
of his punishment occurred outside the window of four months. As 
opposed to a suspension, though, the four month time limit for a 
set-aside is not firm at exactly four months. The relevant guide 
says that a commander must exercise the power for a set-aside 
within a reasonable time and that four months is reasonable 
unless the commander determines unusual circumstances exist. The 
commander’s memo to the Board, dated 1 September 2011, indicates 
that she thought her request for supplemental action on the 
applicant’s Article 15 was not able to be processed because of 
failing to meet the “120 day requirement for submission.” The 
commander does not include any discussion of the question of 
unusual circumstances. On the other hand, the legal office 
appears to have focused not on the time frame for a set-aside, 
but whether it was a legally permissible action. An email from a 
captain in the legal office, dated 30 August 2011, offers the 
opinion that the request for a set-aside failed because the 
action did not fall into the “clear injustice” category. 

 

It is JAJM’s opinion that if the Board decides to grant the 
applicant clemency and approve his request to be reinstated to 
the grade of SSgt, the better option would be to suspend the 
reduction in grade to SrA as of 19 August 2011 (the date he 
submitted his request to the acting first sergeant). 

 

The complete JAJM evaluation is at Exhibit C. 

 

AFPC/DPSOE defers to the recommendation made by AFLOA/JAJM. 
However, DPSOE indicates that if the Board decides to grant 
clemency by suspending the applicant’s reduction in grade 
effective 19 August 2011 through 18 February 2012, his rank would 
be corrected to reflect SSgt with his original date of rank and 
effective date of 1 September 2007. His referral Enlisted 
Performance Report for the period 12 February 2011 through 
21 June 2011 would also need to be removed rendering him eligible 
for supplemental promotion consideration to technical sergeant 
(TSgt) (E-6) for cycle 11E6, once tested. 

 

The complete 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 9 December 2011, for review and comment within 
30 days (Exhibit E). As of this date, this office has received 
no response. 

 

_________________________________________________________________ 

 


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 an injustice. After a 
thorough review of the evidence of record and the applicant’s 
submission, we are not persuaded that his rank of staff sergeant 
should be restored. The applicant’s contentions are duly noted; 
however, we do not find his assertions sufficiently persuasive to 
override the rationale provided by the Air Force offices of 
primary responsibility. We note the applicant’s commander 
provided a letter supporting the applicant’s request; however, 
she does not provide any justification of unusual circumstances 
as to why she did not request a set-aside of the punishment 
within the allowable four-month window in accordance with 
governing directives. Consequently, we agree with the opinions 
and recommendations of the Air Force offices of primary 
responsibility and adopt their rationale as the basis for our 
conclusion 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 issue(s) 
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 AFBCMR Docket 
Number BC-2011-03623 in Executive Session on 26 April 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-2011-03623: 

 

Exhibit A. DD Forms 149, dated 6 Sep 11, w/atchs. 

Exhibit B. Applicant's Master Personnel Records. 

Exhibit C. Letter, AFLOA/JAJM, dated 24 Oct 11. 

Exhibit D. Letter, AFPC/DPSOE, dated 16 Nov 11. 

Exhibit E. Letter, SAF/MRBR, dated 9 Dec 11. 

 

 

 

Panel Chair