RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01294

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

His pay grade in block 4B of his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed from E-4 (Senior Airman) to E-5 (Staff Sergeant).

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APPLICANT CONTENDS THAT:

While he was on terminal leave, he was unjustly issued an Article 15 and reduced in rank.  He had been instructed by his supervisor to work on a self-help project to remodel some of the shops in the maintenance bay.  He was in uniform every day either working or out-processing.  Due to a serious break-down in communications, he was accused of being absent from his duty assignment for an extended period.  On his last duty day, his commander issued him an Article 15 without any warning.  His lawyer said he could stay to fight it and his case was winnable, but his family had already relocated, he had no place to live, and his classes where starting at his new location, so he had to sign it and walk away.  

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

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STATEMENT OF FACTS:

The applicant initially entered the Air Force on 29 Sep 88.  

On 17 Aug 98, the applicant’s commander issued him nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCJM) for being absent from his place of duty without authority in violation of UCMJ Article 86 from on about 2 Jul 98 through on or about 23 Jul 98.  For this, he was reduced in grade to Senior Airman (E-4), with a date of rank (DOR) of 10 Aug 98.  

On 11 Sep 98, the applicant was honorably discharged, and was credited with 9 years, 11 months, and 13 days of active service.  
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 Article 15 process permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  The applicant does not allege an error in how the Article 15 was processed, but alleges the charges were unfair.  He chose to make a personal appearance before this commander and made sure his commander knew all of the circumstances revolving around the misconduct.  The commander at the time of the nonjudicial punishment action had the best opportunity to evaluate all of the evidence in the case.  With that perspective, the commander exercised the discretion the applicant granted him when the applicant accepted the Article 15.  The legal review process showed the commander did not act arbitrarily or capriciously in making his decision.  The commander’s ultimate decision was firmly based on the evidence of the case and the punishment was well within the limits of the commander’s authority and discretion.  The applicant did not appeal the commander’s decision, and his rights were observed throughout the process.  The applicant does not make a convincing argument that Board should overturn the commander’s original decision.  

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

AFPC/DPSOE defers to the recommendation of AFLOA/JAJM.  The applicant was considered and selected for promotion to SSgt during cycle 96E5 and received a DOR of 1 Dec 96.  Under the Article 15, the applicant’s grade was reduced to E-4 with a DOR of 10 Aug 98.  He was discharged on 11 Sep 98 in the grade      of E-4.  While there is no evidence to indicate that the applicant’s reduction in grade constituted an error or injustice, the effective date of pay grade (Block 12h) on his DD Form 214 incorrectly reflects the applicant’s effective date of pay of 1 Dec 96, when it should reflect the date he was demoted to senior airman (E-4).  As such, Block 12h of the applicant’s DD Form 214 should be corrected accordingly.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 5 Jul 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request that his grade, as reflected on his DD Form 214, be corrected to reflect he served in the grade of staff sergeant (E-5).  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief.  While we note the recommendation of the OPR that this Board should correct the applicant’s DD Form 214 to reflect his correct date of rank, in view of the fact that such a correction could be perceived as adverse to the applicant, we are not inclined to recommend such a correction.  Furthermore, such a correction is administrative in nature and falls within the authority of the OPR.  Therefore, 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-2013-01294 in Executive Session on 14 Jan 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 Mar 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFLOA/JAJM, dated 14 May 13.
	Exhibit D.  Letter, AFPC/DPSOE, dated 5 Jun 13.
	Exhibit E.  Letter, SAF/MRBR, dated 5 Jul 13.




                                   
                                   Panel Chair