RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-04779
ER COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His grade of airman first class (E-3) be reinstated as of
16 May 13.
APPLICANT CONTENDS THAT:
As a result of receiving nonjudicial punishment (NJP) under
Article 15 of the Uniform Code of Military Justice (UCMJ) for
underage drinking, he was reduced to the grade of airman (E-2).
During a Status of Discipline meeting, his commander was informed
that he could restore the applicants grade within four to six
months of the demotion being imposed. His commander submitted a
request to do so at six months;, however, it was denied due to the
request not being submitted in a timely manner. His commander was
erroneously led to believe he could have restored the applicants
rank between four and six months after the Article 15 punishment
was imposed. However, he could have only done so within four
months of the imposition of the punishment.
The applicants 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 airman (E-2).
On 8 Jan 13, the applicant received NJP under Article 15 for
underage drinking and consuming alcohol while on standby duty. He
was provided an opportunity to consult legal counsel. He accepted
the NJP, waiving his right to demand trial by court-martial. He
submitted a written presentation and declined to make a personal
appearance before the commander. On 16 Jan 13, his commander
found that he committed the alleged offenses and imposed
punishment consisting of reduction in rank to airman (E-2), with
reduction below airman (E-2) suspended, and 30 days extra duty.
The applicant appealed the decision. On 23 Jan 13, his commander
denied his appeal and the appellate authority denied the appeal on
30 Jan 13.
The remaining relevant facts pertaining to this application are
described in the letters prepared by the Air Force offices of
primary responsibility (OPR) which are included at Exhibits
C and D.
AIR FORCE EVALUATION:
AFLOA/JAJM recommends granting the applicants request, indicating
there is evidence of an error or injustice. The applicants
commander and first sergeant submitted letters of support for the
applicant requesting the Board restore the applicants rank of E-3
with an effective date of rank of 16 May 13. The commander claims
that in a status of discipline briefing, the group was briefed
that demoting an individual as part of an Article 15 proceeding
could be remitted within four to six months if a commander deemed
an Airman worthy of rank reinstatement. The commander says that
if he had been given correct information, he would have made every
effort to reinstate the applicants rank within the four-month
window. The Manual of Courts Martials (MCM) and AFI 51-202,
Nonjudicial Punishment, provides for certain relief from NJP;
specifically, mitigation, remission, suspension, and set aside.
An unsuspended reduction is executed upon imposition. It can
therefore never be remitted, but under appropriate circumstances,
may be suspended, mitigated, or set aside. In this case, the
commander clearly intended to restore the applicants rank. He
thought he could restore the rank through remission. This was
incorrect. He could not have remitted the executed reduction in
rank, but he could have taken action to suspend or set aside the
reduction in rank. Mitigation of a reduction in grade must be
done within four months after the date of the execution. Since
there were actions the commander could have taken to accomplish
his objective of restoring the applicants rank, and since he
would have taken these actions if he understood the rules, the
restoration of the applicants rank appears to be warranted. In
the interests of justice, the applicants request should be
granted.
A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.
AFPC/DPSOE does not make a recommendation. However, if the Board
votes to grant this request, as is recommended by the AFLOA/JAJM
advisory, recommend the applicants record be corrected to reflect
E-3 with a date of rank (DOR) of 4 Feb 11 with an effective date
of 24 Jun 11.
A complete copy of the 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 31 Mar 14 for review and comment within 30 days
(Exhibit E). As of this date, no response has been received by
this office.
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was timely filed.
3. Sufficient 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
and agree with the opinion and recommendation of AFLOA/JAJM and
adopt their rationale as the basis for our conclusion that relief
should be granted. The Board notes that comments of AFLOA/JAJM
indicating that in order to achieve the stated outcome of the
applicants commander of reinstating the applicant to the grade of
airman first class (E-3) as of 16 May 13, the non-judicial
punishment (NJP) would have to be set-aside, and that setting
aside the NJP would result in the applicants effective date or
rank (DOR) to E-3 reverting to his original DOR of 4 Feb 11.
Therefore, we recommend the applicants record be corrected as
indicated below.
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to the APPLICANT be corrected to show that on
16 May 2013, the non-judicial punishment related to the
applicants reduction to the grade of airman (E-2), imposed on
8 January 2013, was set aside and all rights, privileges, pay, and
property affected by said reduction was restored.
The following members of the Board considered AFBCMR Docket Number
BC-2013-04779 in Executive Session on 2 Sep 14, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
All members voted to correct the records as recommended. The
following documentary evidence pertaining to AFBCMR Docket Number
BC-2013-04779 was considered:
Exhibit A. DD Forms 149, dated 9 Oct 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 19 Dec 13.
Exhibit D. Letter, AFPC/DPSOE, dated 27 Jan 14.
Exhibit E. Letter, SAF/MRBR, dated 31 Mar 14.
4
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