RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  01-01365
			INDEX CODE:  134.02
		COUNSEL:  NONE

			HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

a.  His deceased daughter's nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) be set aside and all references to the nonjudicial punishment and special court-martial proceedings be removed from her records.

b.  Any and all adverse actions as a result of the nonjudicial proceedings be reversed.

c.  A letter of apology be sent to the decedent's daughter.

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APPLICANT CONTENDS THAT:

In a letter addressed to his Senator, the applicant contends that his daughter was wrongfully accused of cheating on an end-of-course exam by an instructor who called himself a male chauvinist and stated that females did not belong in the military.  She was the victim of mental, emotional, and verbal abuses as well as physical threats of bodily harm from her military training instructor that were directed at her and women in general.  

Her chain-of-command released everyone that was in correctional custody at 0800 on the day of her accident to allow for driving time in order to make it home for Christmas.  However, she was not released until 1300.   The morning of her funeral, her commander called and stated that if her father would send a letter agreeing not to pursue matters concerning the UCMJ proceedings he would restore her rank.  

In support of his appeal, the applicant provided documents regarding his daughter's military career.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The deceased member enlisted in the Regular Air Force on 3 Aug 83.  She was progressively promoted to the grade of senior airman, having assumed that grade effective and with a date of rank of 3 Aug 86.  On 15 Apr 87, applicant was separated from the Regular Air Force under the strength reduction program.  She served 3 years, 8 months, and 13 days on active duty.  On 18 May 88, she enlisted in the Air Force Reserve.  On 22 Dec 89, she was killed in an automobile accident while on leave from her temporary duty location.

The remaining relevant facts pertaining to this application, extracted from the deceased member's military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's requests and recommends denial.  JAJM states that while attending Jet Engine Mechanic School, the member was accused of cheating on a test.  She allegedly wrongfully transposed on her test answer sheet portions of the answers to questions from Part I of the test (which was closed book) so that these portions could be used in conjunction with technical orders made available to her during Part II of the test (open book) to assist her in answering questions in Part I of the test.

On 1 Sep 89 she was offered nonjudicial punishment for violation of Article 92, UCMJ which was modified to read that she violated AFR 30-17, paragraph 16 by copying without proper authority on her test answer sheet portions of answers from a Controlled Item.  After consulting counsel, she demanded trial by court-martial.  An additional charge and specification was referred for failure to obey a lawful order not to erase anything on her answer sheet.  On 12 Dec 89, applicant changed her mind and agreed to accept nonjudicial punishment proceedings related to the original charge in violation of Article 92.  The additional charge was withdrawn.  She made a personal appearance before her commander and provided a written presentation on her own behalf.  After reviewing the evidence presented, her commander found that she committed the offense alleged and imposed punishment consisting of 14 days correctional custody to begin on 13 Dec 89, reduction to the grade of airman first class, and forfeiture of $200.00 pay.  She appealed her punishment but her appeal was denied.  

On 29 Dec 89, her commander set aside the portion of her punishment reducing her in grade to airman first class, reinstating her rank to senior airman.

JAJM states that the punishment imposed was appropriate for the offense committed and there is insufficient evidence to support the allegation that she was sexually harassed.  In this case the commander weighed all the evidence, including the credibility of the various witnesses, and concluded that she committed the offense alleged.  While different fact finders may have come to a different conclusion, his findings are neither arbitrary nor capricious and should not be disturbed, particularly 12 years after the misconduct occurred and was resolved in a timely manner while evidence and witnesses were available.  

It is important to note that the commander posthumously set aside the portion of the punishment that called for reduction in grade and did not set aside the entire nonjudicial punishment action.  A set aside should only be granted when the evidence clearly demonstrates an error or a clear injustice.  The evidence presented is insufficient to warrant setting aside the Article 15 action and does not demonstrate an equitable basis for relief.  Although her death is tragic, there is no nexus between her nonjudicial punishment action and the accident.  

The JAJM evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded and states that he and his wife traveled to Illinois to attend their daughter's graduation ceremony but instead ended up seeking an explanation of the charges against her.  When he went to visit his daughter's first sergeant, he initially ignored their presence and later informed them of their daughter's administrative status but did not explain why.  When he asked the first sergeant why no charge sheet had been prepared, he replied that since it was late in the day, they should return in the morning.  The next day they visited with their daughter's commander.  During the discussion it became clear that she had already been convicted.  Comments made by the first sergeant and the commander led the applicant to question the impartiality of the commander.  The first sergeant informed him that the reason the charge sheet had not been prepared was because of over-riding concern that she be brought up on charges in a fair and impartial manner.  He met with the Reserve Liaison officer and was told that the Article 15 would be served the following day.  The following day they went to the orderly room at 0750 to wait for the first sergeant and commander.  The first sergeant showed up at 1100 and told them that he forgot he had a meeting that morning and that the Article 15 had not been prepared.  The Reserve Liaison officer told him that the first sergeant wanted to wait until after the commander was promoted to major to accomplish the Article 15 so that it would be issued by a field grade officer.

In further support of his request, applicant provided a personal statement, a chronology of events, a Commander Directed Urinalysis letter, documents associated with his daughter's Article 15 punishment, a letter from his daughter, his daughter's score sheet, and letters from his daughter's classmates.  His complete submission, with attachments, is at 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.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice that would warrant corrective action.  In this respect, after a thorough review of the evidence of record it is our opinion that evidence has been provided which would lead us to believe that the decision to impose nonjudicial punishment may have been based on factors other than the issue at hand and that the punishment imposed was excessively harsh.  In this regard, it appears that because of a contentious relationship between the deceased member and her instructors, the incident was poorly handled and as a result, led to a sequence of events that culminated in nonjudicial punishment being issued.  Based on the evidence of record, we are not convinced that the applicant cheated on the test in question.  In this regard, it does not appear logical that she would want to cheat on an open book test.  We believe that her actions may have been caused by a misunderstanding of the instructions provided.  In light of the above, it is our opinion that it would be an injustice for her family to continue to suffer the adverse and emotional effects this incident has caused.  Therefore, we believe that removal of the nonjudicial punishment from the former member's records would be an appropriate and fitting relief based on the evidence provided.

4.	 Applicant's request pertaining to court-martial proceedings and a letter of apology were noted.  Since she accepted the nonjudicial punishment, no court-martial proceedings exist in the record.  In regards to the request that a letter of apology be sent to the decedent's daughter we are compelled to note that since this Board's charter extends solely to the correction of records, favorable consideration of that portion of the request is not possible.  We do however want to express our deepest sympathies to the deceased member's family and thank them for her service to the Nation.  In addition, we commend the family for bringing this matter to the Board, allowing us the opportunity to correct the record.

5.	 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.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the FORMER MEMBER be corrected to show that the nonjudicial punishment under Article 15,UCMJ, initiated on 1 September 1989 and imposed on 12 December 1989, be, and hereby is, set aside and expunged from her records, and all rights, privileges and property of which she may have been deprived be restored. 

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The following members of the Board considered Docket Number 01-01365 in Executive Session on 5 Sep 02, under the provisions of AFI 36‑2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 15 Apr 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 15 May 02.
     Exhibit D.  Letter, SAF/MRBR, dated 29 May 02.
     Exhibit E.  Letter, Applicant, not dated, w/atchs. 

						
								Panel Chair

AFBCMR 01-01365

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the nonjudicial punishment under Article 15, UCMJ, initiated on 1 September 1989 and imposed on 12 December 1989, be, and hereby is, set aside and expunged from her records, and all rights, privileges and property of which she may have been deprived be restored. 

                                                                            	
                                                                            Director
                                                                            Air Force Review Boards Agency