RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01855

	 	COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

His Article 15 received on 9 Jun 11 be set aside.  

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APPLICANT CONTENDS THAT:

His commander’s verbal non-recommendation for promotion to the grade of senior airman (E-4) was not follow-up in writing within the required five days.  As a result, he assumed the grade of senior airman.  His commander subsequently imposed Article 15 punishment under the incorrect grade of airman first class    (E-3).  Since he was actually a senior airman, the record should be found legally insufficient and removed.  

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 senior airman (E-4).  

In accordance with AFI 36-2502, Airman Promotion Program, unit commanders inform airmen of adverse actions in writing or verbally before promotion effective date (confirm verbal notification in writing within 5 duty days).  The notification memorandum must include reasons, dates, occurrences, and duration of the action.  If the Airman is notified verbally prior to effective date, and written notification is followed up after effective date of promotion, include a statement confirming the Airman was verbally notified not to assume the higher grade prior to the effective date of promotion.   

On 1 Jun 11, the applicant’s commander informed him in writing of his non-recommendation for promotion to senior airman due to his involvement in an alcohol related incident and he acknowledged receipt of the action.  

On 9 Jun 11, the applicant received an Article 15 for being drunk and disorderly, in violation of Article 134, Uniform Code of Military Justice (UCMJ).  His punishment consisted of reduction to the grade of airman (suspended for six months), forfeiture of $250.00 pay per month for two months, 20 days extra duty and a reprimand.  

On 13 Jun 11, the applicant elected not to appeal the punishment or submit statements on his behalf and the Article 15 was reviewed and determined to be legally sufficient. 

On 16 Dec 11, the applicant’s commander recommended him for promotion to senior airman with a date of rank (DOR) of 30 May 11, effective 30 May 11.  

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 and D.  

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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 the mishandling of his Article 15 (paperwork indicates airman first class) was physically and mentally exhausting, which warrants removal in its entirety.  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.  While there does seem to be some confusion with the respect to the applicant’s grade on the paperwork, the applicant was not prejudiced or substantially harmed by this confusion.  Paperwork aside, the applicant was promoted to senior airman, effective 30 May 11.  The punishment of a reduction in grade in the applicant’s nonjudicial punishment was suspended and since the applicant did no further misconduct, it was never acted on.  Thus, the applicant remained a senior airman from 30 May 11 on.  He does not allege he did not commit the misconduct and the imposed punishment is well within the legal limits of his offense.  Furthermore, 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/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 the Article 15 punishment legally sufficient, and recommended denial of the applicant’s request to have it set aside.  In addition, there is no corrective action needed to be made to the applicant’s rank since the suspended reduction did not result in loss of rank.  In this case, the written notification of promotion non-recommendation was not received until after 30 May 11; as such, the applicant’s promotion consummated automatically in the Military Personnel Data System (MilPDS) and flowed to the Defense Finance and Accounting Services (DFAS) file.  Regardless of the rank reflected on the applicant’s Article 15 punishment, his reduction in rank was suspended and since he had no further misconduct, it was never acted on.  He also received his original date of rank (DOR) and effective date to senior airman when he was recommended for promotion at the end of the suspended punishment.  

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 19 Jun 13 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E.  

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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-2013-01855 in Executive Session on 13 Feb 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 10 Apr 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFLOA/JAJM, dated 22 May 13.
	Exhibit D.  Letter, AFPC/DPSOE, dated 19 Jun 13.
	Exhibit E.  Letter, SAF/MRBR, dated 24 Jul 13. 




                                   
                                   Panel Chair







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