RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-05529
	 XXXXXXXXXX	COUNSEL: NONE
			HEARING DESIRED: NO


APPLICANT REQUESTS THAT:

His Date of Rank (DOR) to the grade of Staff Sergeant (SSgt, E-
5) be reinstated to 1 August 2004 instead of 1 July 2010.


APPLICANT CONTENDS THAT:

He constantly regrets the foolish mistake he made and has 
learned a valuable lesson.  A suspended reduction to the rank of 
SSgt would have more appropriate for a first time offense.

The reduction to the rank of Senior Airman (SrA, E-4) as a 
result of Nonjudicial Punishment (NJP), UCMJ was mitigated to a 
fine of $1,000.  However, the original reduction to the rank of 
SrA has severely impacted his ranking amongst other SSgts, 
assignment selections, and promotion.

In support of his request, the applicant provides copies of his 
Enlisted Performance Reports, Data Verification Brief (DVB), 
character letters, fitness assessment score sheets, citations, 
awards, promotion information and various other documents 
associated with his request.

His complete submission, with attachments, is at Exhibit A.


STATEMENT OF FACTS:

According to Special Order P-045 dated 9 August 2004, the 
applicant was promoted to the rank of SSgt with a DOR and 
effective date of 1 August 2004.

According to AF Form 3070A, Record of Nonjudicial Punishment 
Proceedings (AB thru TSgt), on 5 April 2010, the applicant was 
offered an Article 15 for operating a vehicle while drunk in 
violation of Article 111, UCMJ.  He consulted a lawyer and 
accepted non-judicial punishment proceedings under Article 15, 
UCMJ.

After considering the evidence and matters submitted by the 
applicant, the squadron commander found that the applicant 
committed the offense.  As punishment, the commander reduced him 
from the grade of SSgt to the grade of SrA, required him to work 
30 days extra duties, and reprimanded him.

According to the DVB provided by the applicant, he is serving in 
the grade of SSgt, having assumed that grade effective and with 
a DOR of 1 July 2010.


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  A review of the available 
documentation indicates that the applicant’s rights were 
observed throughout the process.  On 20 March 2010, the 
applicant was driving a vehicle when he was pulled over by the 
police for swerving sharply.  He was arrested and subjected to a 
Breathalyzer test resulting in a blood alcohol content of .117.  
He was offered an Article 15 for operating a vehicle while drunk 
in violation of Article 111, UCMJ.  He consulted a lawyer and 
accepted non-judicial punishment proceedings under Article 15, 
UCMJ.  After considering the evidence and matters submitted by 
the applicant, the squadron commander found that the applicant 
committed the offense.  As punishment, the commander reduced him 
from the grade of SSgt to the grade of SrA, required him to work 
30 days extra duties, and reprimanded him.  Electronic records 
show that on 29 June 2010, the applicant's commander mitigated 
his reduction in rank to a forfeiture of $1,000 for one month.

Mitigation is a reduction in either the quantity or quality of a 
punishment with its general nature remaining the same.  A 
reduction in grade, whether executed or unexecuted, can only be 
mitigated to forfeitures.  A reduction in grade will not be 
mitigated to a lesser reduction or no reduction.  Mitigation of 
a reduction in grade must be done within 4 months after the date 
of execution.  If the reduction was executed; the DOR for the 
restored grade is the date of the indorsement mitigating the 
punishment.  For example, if a member receives Article 
15 punishment on 1 June, consisting of a reduction in grade, and 
the commander subsequently (on 1 July) mitigates the reduction 
to forfeiture, both the effective date and DOR for the restored 
grade is 1 July.

The applicant argues that suspension is often warranted for a 
first offense and would have been appropriate in his case.  If 
the commander would have chosen to suspend the reduction in rank 
versus mitigating it to forfeitures, then the applicant would 
have kept his original DOR.  As the applicant notes, a suspended 
punishment is often warranted for a first offense.  However, it 
is the commander who is entrusted with making the decision to 
impose punishment and the degree of punishment.  In this case, 
the commander exercised her discretion in coming up with an 
appropriate punishment for the applicant's drunk driving and 
subsequent mitigation decision.  Even though this may have been 
a first offense, it was not inappropriate or unduly harsh 
considering the nature of the misconduct to not suspend the 
reduction in rank.

The complete JAJM evaluation is at Exhibit C.

AFPC/DPSOE defers to JAJM’s recommendation to deny the 
applicant's request to have the Article 15 punishment changed 
from a reduction to a suspended reduction.

Had the applicant received a suspended punishment, as requested, 
his DOR and effective date would have remained 1 August 2004.  
However, in accordance with AFI 36-2502, Airman 
Promotion/Demotion Programs, he would have been ineligible for 
promotion consideration to the grade of TSgt for the duration of 
the suspension period.  As long as the suspension period did not 
exceed 31 December 2010, the applicant would have been eligible 
for promotion consideration to the grade of TSgt beginning with 
cycle 11E6.

The complete DPSOE evaluation is at Exhibit D


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

On 9 May 2014, 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).


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application is timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of 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.


THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice; that 
the application was denied without a personal appearance; and 
that the application will only be reconsidered upon the 
submission of newly discovered relevant evidence not considered 
with this application.


The following members of the Board considered this application 
in Executive Session on 12 November 2014, under the provisions 
of AFI 36-2603:

       , Panel Chair
       , Member
       , Member

Due to the unavailability of XXXXXXXXXX, XXXXXXXXXX will sign as 
Acting Panel Chair.  The following documentary evidence 
pertaining to AFBCMR BC-2013-05529 was considered:

      Exhibit A.  DD Form 149, dated 27 November 2013, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLOA/JAJM, dated 18 March 2014 
      Exhibit D.  Letter, AFPC/DPSOE, dated 2 April 2014.
      Exhibit E.  Letter, SAF/MRBR, dated 9 May 2014.