RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-04917
COUNSEL: NONE
HEARING DESIRED: NO
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APPLICANT REQUESTS THAT:
His grade of E-3 (Airmen First Class) be reinstated as of 16 May 13.
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APPLICANT CONTENDS THAT:
He was unjustly denied the opportunity to be reinstated as an E-3. On 16 Jan 13, he was reduced in grade from E-3 to E-2 (Airman) through nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). On 15 Jul 13, his commander requested he be reinstated to the grade of E-3; however, the commander relied upon incorrect information concerning how much time he had to wait before submitting the request, and therefore failed to submit it on time.
The applicants complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:
The applicant initially enlisted in the Regular Air Force on 17 Mar 11.
On 15 Nov 11, the applicant was promoted to the grade of E-3.
According to the documents submitted by the applicant:
a. On 16 Jan 13, the applicant received an Article 15 and was reduced to the grade of E-1 (Airman Basic), with the reduction below the grade of E-2 suspended.
b. On 15 Jul 13, the applicants commander requested that the applicants rank of E-3 be restored, but AFPC denied the request.
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.
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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 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 appropriated 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 recommends is at Exhibit C.
AFPC/DPSOE does not make a recommendation. However, if the Board votes to grant this request, as is recommended the AFLOA/JAJM advisor, recommend the applicants record be corrected to reflect E-3 with a date or rank (DOR) and effective date of 15 Nov 11.
A complete copy of the AFPC/DPSOE recommends 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 22 May 14 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. Sufficient relevant evidence has been presented to demonstrate the existence of an 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 the 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 doing so would result in the applicants effective date or rank (DOR) to E-3 reverting to his original DOR of 15 Nov 11. Therefore, we recommend the applicants record be corrected as indicated below.
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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 16 January 2013, was set aside and all rights, privileges, pay, and property affected by said reduction was restored.
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The following members of the Board considered AFBCMR Docket Number BC-2013-04917 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-2013-04917 was considered:
Exhibit A. DD Form 149, dated 9 Oct 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 27 Feb 14.
Exhibit D. AFPC/DPSOE, dated 19 Mar 14.
Exhibit E. Letter, SAF/MRBR, dated 22 May 14.
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