SECOND ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-1998-03153 XXXXXXXXXX COUNSEL: XXXXXXXXXX HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The two nonjudicial punishment (NJP) actions he received under Article 15, Uniform Code of Military Justice (UCMJ), and the vacation of the suspended NJP, be declared void and removed from his records. 2. He be administratively reinstated to his previous rank of staff sergeant (E-5). 3. He be credited with active service, backpay, and allowances from the date of his separation from active duty to the date on which he would have attained 20 years of active service for retirement under 10 USC 3914; or he be credited with satisfactory reserve service for this period for the purpose of retirement under 10 USC 12731. ________________________________________________________________ RESUME OF CASE: On 1 Dec 99, the Board considered and denied the applicant’s original request to set aside his Article 15, dated 22 Aug 96; Article 15, dated 6 Sep 96; and vacation of suspended nonjudicial punishment (NJP), dated 4 Nov 96. In the initial case, he contended that all three actions were initiated by the same commander who failed to follow the advice of the legal office on these matters and refused to consider clear and convincing evidence that he was the victim of domestic violence, not the perpetrator of it. Furthermore, the vacation of the suspended NJP was based on an incident which should not have been held against him; it took place when he was in an extreme emotional state when he was at the mental ward of the hospital in the aftermath of his suicide attempt. His commander also failed to consider his excellent duty performance when he made these decisions. For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit F. On 11 May 10, the applicant submitted new DD Form 149, and a subsequent Statement of Counsel, with attachments. Counsel requested reconsideration based upon additional documentation the applicant has obtained since the Board’s initial decision. Counsel contended the original AFBCMR panel did not enjoy a fully developed argument and evidence showing the applicant was actually innocent of the charge of domestic violence. However, on 27 Apr 11, the Board considered and denied the applicant’s request. While he had provided a voluminous submission describing the volatility of his relationship with his former spouse, a substantial portion of his submission was comprised of evidence that was a matter of record and considered by the commander during the NJP proceedings. The remainder of his submission was comprised of medical documentation, a supporting statement from his current spouse, and copies of various studies regarding the effects of domestic abuse. However, the Board found the evidence insufficient to conclude the applicant did not commit the acts which formed the basis of the NJP actions, or that his commander abused his discretionary authority or failed to act in good faith when considering the evidence before him in arriving at an appropriate punishment for the applicant’s misconduct. For an accounting of the facts and circumstances surrounding the applicant’s request for reconsideration and the rationale of the earlier decision by the Board, see the Addendum to the Record of Proceedings (ROP) at Exhibit I. In his latest submission, dated 6 Sep 11, Counsel requests reconsideration and contends the Board did not consider several of its previous decisions, which were cited in the initial request for reconsideration, where relief was granted in comparable circumstances. The Court would likely find the Board failed to do this and remand the matter to the AFBCMR for further consideration. In support of the applicant’s request for reconsideration, Counsel provides a copy of a court decision addressing the matter of precedent in an Army Board for Correction of Military Records case. A complete copy of Counsel’s latest submission, with attachment, is at Exhibit J. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. After again reviewing this application and the evidence provided in support of this appeal, the majority of the Board remains unconvinced the applicant has been a victim of an error or an injustice. This Board has twice determined the NJP actions rendered upon the applicant for assaulting his former spouse and subsequently violating a no contact order were appropriate to the circumstances and within the commander’s discretionary authority. In his most recent submission, the applicant’s counsel argues the Board did not consider certain cases previously decided by this Board in evaluating the applicant’s requests, essentially asserting that similar consideration should be applied to the applicant’s case and the requested relief should be granted. The majority of the Board disagrees. In this respect, the majority notes that each case before this Board is considered on its own merits, and precedent does not bind us. While we do strive for consistency in the manner in which evidence is evaluated and analyzed, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case. In the various cases cited by Counsel, the Board granted relief for the following reasons: 1) the evidence was insufficient to support the charge, 2) there was a failure to properly investigate the applicant’s claims, 3) there was no legal basis for the action, 4) the commander abused his/her discretionary authority, and 5) guilt was questionable and doubt was resolved in the applicant’s favor. However, we have thoroughly reviewed the cases cited by the applicant’s counsel and the majority finds the circumstances are not applicable in the instant case. While the Board determined there was an insufficient basis in two of the cited cases to support the commander’s determination the applicant committed the alleged misconduct, the majority does not find Counsel’s arguments or the documentation provided sufficient to conclude the bases of the contested NJP actions in the instant case were insufficient. Counsel contends the statement by the purported victim, in and of itself, should not have been sufficient to form the basis for the commander’s determination the applicant committed the alleged assault, particularly in the face of evidence that served to undermine her credibility; however, the majority of this Board is not convinced the commander relied only upon the victim’s statement in determining the applicant had indeed struck his spouse. In this respect, the majority notes the evidence of record contains a statement by the commander which indicates that he reviewed the applicant’s presentation several times, repeatedly read the presentations made by witnesses on his behalf, and, after also considering input from the Medical Group/Mental Health unit, determined the applicant had indeed struck his wife. As for the case cited by Counsel where the Board granted relief because there was a failure to properly investigate the applicant’s claims, the majority finds no such showing in this case. In this respect, we again note the evidence of record is substantial and the majority is not convinced the commander did not give due consideration to the evidence provided by the applicant in support of his claims that he did not commit the alleged assault. While Counsel argues the commander’s determination had to be incorrect in the face of substantial evidence supporting the notion the applicant was subjected to physical abuse at the hands of his wife, the majority does not believe that said evidence is proof the applicant did not strike his wife, nor are we convinced the commander did not exercise due diligence in investigating the facts and circumstances of the instant case. In another case cited by Counsel, the Board granted relief when it determined the basis of the contested action was not legally sufficient; however, we note the NJP actions in the instant case were subjected to legal review during the matter under review and found to be legally sufficient. As for the case cited by Counsel where the Board granted relief when it determined the imposing commander had abused his discretionary authority, we find no such showing in this case. In this respect, we note the comments by AFLSA/JAJM and agree with their determination the commander acted within his discretionary authority in each of the three NJP actions. Finally, Counsel cites a case where the Board found the applicant’s guilt questionable and resolved doubt in the applicant’s favor. However, in the cited case, the applicant brought forth substantial evidence that he was indeed not guilty of the alleged offense. However, we have no such showing in this case. Counsel’s primary argument seems to be that because there is evidence the applicant was subjected to abuse at the hands of his wife that he must be innocent of the alleged offense of striking her and, as such, the initial and subsequent NJP actions should not have been rendered. The majority of the Board disagrees and does not find this a persuasive argument the applicant has been treated unfairly or is the victim of an injustice. In fact, the majority finds it very likely the commander gave careful consideration to this unfortunate situation and the applicant’s record of performance as evidenced by his decision to suspend the portion of the punishment that called for the applicant’s reduction in grade from staff sergeant (E-5) to senior airman (E-4) and then refrained from vacating said suspension even though the applicant subsequently violated a no contact order. It was not until the applicant committed another act of misconduct the commander finally decided it was appropriate to vacate the suspended demotion. Therefore, in the absence of evidence the applicant was denied rights to which he was entitled, the commander abused his discretionary authority, or the punishment rendered was unduly harsh, the majority finds no basis to recommend granting the requested relief. 2. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ RECOMMENDATION OF THE BOARD: A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied. ________________________________________________________________ The following members of the Board considered the applicant’s request for reconsideration of AFBCMR Docket Number BC-1998-03153 in Executive Session on 16 Aug 12, under the provisions of AFI 36-2603: Panel Chair Member Member By a majority vote, the Board voted to deny the application. XXXXXXXXXX voted to correct the records but does not desire to submit a Minority Report. The following additional documentary evidence was considered: Exhibit I. Addendum ROP, dated 25 May 11, w/atchs. Exhibit J. Letter, Counsel, dated 6 Sep 11, w/atch. 1 2