RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 
DOCKET NUMBER:  BC-2012-01251 
IN THE MATTER OF: 
COUNSEL:  NONE 
   
    
HEARING DESIRED:  NOT INDICATED 
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
The reduction in rank to technical sergeant (TSgt, E-6) that he 
received  pursuant  to  a  nonjudicial  punishment  action  on  8  Dec 
1977  be  set  aside  and  his  rank  be  restored  to  master  sergeant 
(MSgt, E-7). 
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
While  he  was  in  technical  school  for  eight  weeks  his  unit  was 
under investigation.  When he returned to his unit he was told 
he  would  be  offered  an  Article  15.    His  supervisor,  a  second 
lieutenant (2Lt), told him not to say anything as the commander 
was already upset.  He received the charges one day prior to his 
Article  15  hearing.    He  respectfully  declined  the  commander’s 
offer when asked if he had anything to say.  He was subsequently 
reduced for “dereliction of duty.” 
 
He was railroaded by a 2Lt who was afraid of the commander.  He 
loved being in the Air Force, had an outstanding work ethic, as 
reflected  in  his  military  service  record,  and  always  strove  to 
do the right thing. 
 
The applicant provides no submission in support of his request. 
 
His complete submission is at Exhibit A. 
 
_______________________________________________________________ 
 
STATEMENT OF FACTS: 
 
The applicant entered the Regular Air Force on 13 Sep 1960 and 
was progressively promoted to the grade of MSgt with a date of 
rank of 1 Sep 2005. 
 
In  1977,  while  the  applicant  supervised  the  Noncommissioned 
Officer's  Club,  an  Investigation  into  the  Club's  finances 
revealed  he  allowed  friends  who  worked  at  the  Club  to  be 
overpaid  by  one  hour  per  day;  allowed  guests,  employees,  and 
himself  to  eat  for  free;  removed  two  cases  of  liquor  from  the 
Club;  removed  one  bottle  of  liquor  from  the  Club;  and  often 
distributed free pitchers of beer, without accounting for them. 

 

 

On  5  Dec  1977,  he  was  offered  nonjudicial  punishment  under 
Article  15,  Uniform  Code  of  Military  Justice  (UCMJ).    He  was 
charged  with  five  specifications  of  dereliction  of  duty,  in 
violation of Article 92, UCMJ. 
 
On  29  Dec  1977,  the  commander  decided  that  the  applicant  had 
committed the charged offenses and imposed punishment consisting 
of a reduction to the rank of TSgt and a forfeiture of $418 pay 
per month for two months. 
 
On  9  Jan  1978,  the  applicant  appealed  only  the  punishment 
portion  of  the  Article  15,  claiming  that  the  punishment  was 
unduly  severe  based  on  the  nature  of  his  offenses.    His 
commander  granted  the  applicant's  appeal  in  part  and  imposed 
punishment consisting solely of a reduction to the rank of TSgt.  
The Article 15 action was reviewed and determined to be legally 
sufficient. 
 
On 1 Oct 1980, he was honorably retired from  active duty in the 
grade of TSgt. 
 
_______________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
AFLOA/JAJM recommends denial.  JAJM states the applicant had the 
choice  to turn  down  the Article  15 and demand trial  by court-
martial,  where  he  would  h a v e   been  able  to  defend  himself 
against the  allegations in  a court-martial  forum;  however,  he 
declined to do so and accepted the Article 15.  Furthermore,  he 
made an oral presentation  to his commander  before the commander 
found  that  he  committed  the  offenses  and  imposed  punishment 
accordingly.   The  applicant  appealed  the punishment  portion  of 
the  Article  15  and  his  commander  granted  relief  by  decreasing 
the punishment to a reduction in rank to TSgt. 
 
The evidence  underscores  that the commander  at the time  of the 
Article 15 had the best opportunity  to evaluate the evidence in 
the  case.    With  that  perspective,  the  commander  exercised  the 
discretion  that  the  applicant  granted  him  when  the  applicant 
accepted  the  Article  15  and  found  nonjudicial  punishment 
appropriate  in his  case.   The  legal  review  process showed  that 
the commander  did not act arbitrarily  or capriciously  in making 
his  decision.   The  applicant  does not  allege  error  in  how  the 
Article  15  was  processed.    A  review  of  the  AF  Form  3070, 
Notification  of  Intent  to  Impose  Nonjudicial  Punishment, 
indicates  that  the  applicant's  rights  were  observed  throughout 
the  process  of  the  Article  15.  He  does  not  make  a compelling 
argument  that  the  Board  should  overturn  the  commander's 
original,  nonjudicial  punishment  decision  on  the  basis  of 
injustice.    The  commander's  ultimate  decision  on  the  Article 
15 action  is firmly  based  on  the  evidence  of  the case  and  the 
punishment decision was well with the limits of the commander's 
authority and discretion. 

 

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The complete JAJM evaluation is at Exhibit C. 
 
AFPC/DPSOE  defers  to  JAJM’s  recommendation  of  denial.    DPSOE 
states JAJM has reviewed the applicant’s case and found no error 
or injustice. 
 
The complete DPSOE evaluation is at Exhibit D. 
 
_______________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
On  8  Aug  2012,  copies  of  the  Air  Force  evaluations  were 
forwarded  to  the  applicant  for  review  and  comment  within 
30 days.  As of this date, no response has been received by this 
office (Exhibit E). 
 
_______________________________________________________________ 
 
FINDINGS AND CONCLUSIONS OF THE BOARD: 
 
After  careful  consideration  of  the  evidence  of  record,  we  find 
the  application  untimely.    The  applicant  did  not  file  within 
three years after the alleged error or injustice was discovered 
as  required  by  Title  10,  United  States  Code,  Section  1552  and 
Air  Force  Instruction  36-2603.    The  applicant  has  not  shown  a 
sufficient reason for the delay in filing on a matter now dating 
back almost 35 years, which has greatly complicated the ability 
to  determine  the  merits  of  his  position.    He  has  not  provided 
evidence  that  supports  he  is  the  victim  of  error  or  injustice. 
We are also not persuaded the record raises issues of error or 
injustice which require resolution on the merits.  Therefore, in 
view  of  the  above,  we  cannot  conclude  it  would  be  in  the 
interest of justice to excuse the applicant’s failure to file in 
a timely manner. 
 
________________________________________________________________ 
 
DECISION OF THE BOARD: 
 
The application was not timely filed and it would not be in the 
interest  of  justice  to  waive  the  untimeliness.    It  is  the 
decision  of  the  Board,  therefore,  to  reject  the  application  as 
untimely. 
 
________________________________________________________________ 
 

 

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The  following  members  of  the  Board  considered  this  application 
in Executive Session on 7 Nov 2012, under the provisions of AFI 
36-2603: 
 
      Panel Chair 
      Member 
      Member 
 
 
The following documentary evidence was considered in AFBCMR BC-
2012-01251: 
 
   Exhibit A.  DD Forms 149, dated 19 Jan 2012. 
   Exhibit B.  Applicant's Master Personnel Records. 
   Exhibit C.  Letter, AFLOA/JAJM, dated 13 Jun 2012. 
   Exhibit D.  Letter, AFPC/DPSOE, dated 9 Jul 2012. 
   Exhibit E.  Letter, SAF/MRBR, dated 8 Aug 2012. 
 
 
 
 
 
   
 
 

  Panel Chair 

  

  

 

 

 

 

 

 

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