RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00903

	 	COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

1.  His Article 15 received on 3 Jan 13 be set aside and Unfavorable Information File (UIF) be removed from his record.  

2.  His reduction to the grade of staff sergeant (E-5) be suspended, if the Article 15 is not set aside.  

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APPLICANT CONTENDS THAT:

1.  He unjustly received Article 15 punishment since it was not administered in accordance with the guidelines set forth in 133 Airlift Wing Instruction (AWI) 65-104, Financial Management, Use of the Bank of America Government Charge Card, paragraph 4.2.  Specifically, it indicates unit commanders may utilize a counseling session and, if appropriate, issue a member a letter of counseling (LOC) or a letter of reprimand (LOR) for the delinquency or abuse of the government travel charge (GTC) card.  

2.  He has honorably served in the military for 17 years and has never been in trouble.  His reduction in grade is potentially career ending because he will be forced out of the Air Force if he is not promoted before his high year tenure (HYT).  

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

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STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of staff sergeant (E-5).  

On 3 Jan 13, the applicant received an Article 15 for being derelict in the performance of his duties by failing to request sufficient leave and failing to refrain from using his GTC, each offense in violation of Article 92, Uniform Code of Military Justice (UCMJ).  His punishment consisted of reduction to the grade of staff sergeant (E-5), 14 days extra duty, and a reprimand.  

On 8 Jan 13, the applicant elected to appeal the punishment and submit statements on his behalf.  

On 17 Jan 13, the appellate authority denied the applicant’s appeal and the applicant was notified the action will be filed in an unfavorable information file (UIF).  

On 18 Jan 13, the Article 15 was reviewed and determined to be legally sufficient.  

On 28 Mar 13, the applicant’s AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt), rendered for the period 15 Mar 12 thru 14 Mar 13, was referred to the applicant due to the rating and commends relative to his Article 15.  

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C, D, and E.  

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice.  The applicant contends his Article 15 punishment is unjust because it was not imposed in accordance with 133 AWI 65-104.  Although the applicant has cited a regulation to substantiate why his punishment is unjust, the regulation applies only to the Minnesota Air National Guard, of which the applicant does not belong.  Despite this fact, a commander has authority and discretion to dispose of misconduct how she or he sees fit based on the facts and circumstances of each case.  Also, the applicant requests a suspended reduction in grade as an alternative punishment because this is his first misconduct in over 16 years of military service and a reduction in grade may force him to separate due to HYT.  The Manual for Courts-Martial (MCM) and AFI 51-202, Nonjudicial Punishment, provides for certain relief from nonjudicial punishment, specifically, mitigation, remission, suspension, and set aside.  A set aside of an Article 15 is the removal of the punishment from the record and the restoration of the service member’s rights, privileges, pay, or property affected by the punishment.  Setting aside an Article 15 action restores the member to the position held before imposition of the punishment, as if the action had never been initiated.  The power to set aside a punishment should ordinarily be exercised within four months of the imposition of the nonjudicial punishment.  Set aside of punishment should not routinely be granted.  Rather, set aside is to be used strictly in the rare and unusual case where a genuine question about the service member’s guilt arises or when the best interest of the Air Force would be served.  In this case, the applicant fails to make a compelling argument that the Board should overturn the commander’s original nonjudicial punishment decision on the basis of injustice or error.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.  

AFPC/DPSIM recommends denial indicating there is no evidence of an error or an injustice.  The commander imposed nonjudicial punishment as prescribed by AFI 51-202 and followed the proper procedures.  

A complete copy of the AFPC/DPSIM evaluation is at Exhibit D.  

AFPC/DPSOE indicates no equity in the decision regarding the removal of the applicant’s Article 15, indicating AFLOA/JAJM has reviewed the case and found no error or injustice.  In addition, the applicant received a referral EPR.  In regards to the applicant’s request for a suspended reduction in grade, if granted, he would be ineligible for promotion consideration during the suspension period, but he would retain his rank as a technical sergeant (E-6) along with his original date of rank (DOR).  However, based on his current grade of staff sergeant (E-5), he will not be eligible for promotion consideration until promotion cycle 15E6.   If he is not selected for promotion during this cycle, he will be forced to separate due to HYT on 31 Oct 15.  

A complete copy of the AFPC/DPSOE evaluation is at Exhibit E.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 24 Feb 14 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit F).  

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, 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.  

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2013-00903 in Executive Session on 8 Apr 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 11 Jan 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFLOA/JAJM, dated 9 Apr 13.
	Exhibit D.  Letter, AFPC/DPSIM, dated 10 Oct 13.
	Exhibit E.  Letter, AFPC/DPSOE, dated 4 Nov 13.
	Exhibit F.  Letter, SAF/MRBR, dated 24 Feb 14.




                                   
                                   Panel Chair