RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01938
				INDEX CODE 126.04
				COUNSEL:  NONE

		HEARING DESIRED:  NO
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APPLICANT REQUESTS THAT:

The Article 15 imposed on 15 November 2000 for violation of Articles 92 and 107, (disobeying a lawful order and making false official statements) of the Uniform Code of Military Justice (UCMJ) be expunged from his record. 
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APPLICANT CONTENDS THAT:

The basis for the case was that he had violated a lawful order and made false official statements on two occasions.  He presented a rebuttal and an appeal, which invalidated these charges however, his commander went forward with the nonjudical proceedings.  There is a lack of evidence to support the case as presented in the appeal.

In support of his request, the applicant submitted a personal statement, copy of the appeal of his Article 15, a copy of AFFM 3070, Record of Nonjudicial Proceedings, and other documents relating to the issue.  The applicant's complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Applicant is currently serving in the Regular Air Force in the grade of technical sergeant.  

On 15 November 2000, his commander offered him nonjudicial punishment proceedings for violating Article 92 and 107, UCMJ, for disobeying a lawful order and making false statements.  On 21 November 2000, after consulting with counsel, he waived his right to demand a court-martial and accepted nonjudicial punishment. On 29 November 2000, his commander determined that he had committed the alleged offenses and imposed punishment consisting of a suspended reduction to Staff Sergeant, forfeiture of $250.00 of his pay per month for two months, a reprimand and 14 days extra duty.  However, that portion of the punishment, which called for a reduction to the grade of staff sergeant was suspended.  The Article 15 was filed in the applicant's Unfavorable Information File (UIF).

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AIR FORCE EVALUATION:

AFLSA/JAJM stated the applicant's contentions are without merit and constitute neither error nor injustice.  Therefore, they recommend that the Board deny the applicant relief.

The applicant, then a Technical Sergeant assigned to the 374 MXS, at Yokota AB, Japan, was offered nonjudicial punishment on 15 Nov 00 for disobeying the lawful order of Staff Sergeant XXX not to engage in an unlawful and unauthorized commercial enterprise on base, in violation of Article 92, Uniform Code of Military Justice (UCMJ); and, on two occasions, with intent to deceive, signing an official record asserting that he was not bringing a vehicle on base for the purpose of selling it for himself or someone else, or for the vehicle to be sold by someone else, which statement was false, and which he knew to be false, in violation of Article 107 , UCMJ.

The Article 15 punishment was imposed on the applicant 29 Nov 00, for engaging in an unlawful/unauthorized commercial enterprise on base, and for signing two official records with intent to deceive, regarding the sale of motor vehicles on base. The applicant provided a rebuttal to the Article 15 on 3 Dec 00.

By electing to resolve the allegations in the nonjudicial forum, the applicant vested his commander with the responsibility to decide whether he had committed the offenses.  The commander had to weigh all the evidence, including the credibility of the various witnesses, and makes his decision.  In this case the commander concluded the applicant had disobeyed the order and made false official statements.  There was sufficient evidence for the commander to determine the offenses had been committed.  The applicant's arguments failed to convince either the commander who imposed punishment or the appellate authority.

JAJM indicates that a set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.

The AFLSA/JAJM evaluation is attached at Exhibit C.

AFPC/DPSF recommended denial.  The commander correctly adhered to all polices and procedures which govern nonjudicial punishment. The applicant failed to provide any significant documentation to warrant removal of his Article 15/UIF.  The applicant exercised his right to rebut the Article 15, and his commander subsequently elected to change the imposed punishment. However, the commander was not persuaded to forgo the Article 15.  The AFPC/DPSF evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluations and stated that when a member breaks the rules, they should be judged on what is contained in the regulation covering the violation.  If after the regulation covering this offense were utilized, it would then establish that the person breaking the rules would be issued a ticket, license suspended, etc.  Having this information, the Security Forces investigators along with Capt X__ and the SJA would be able to provide indisputable evidence of the violation.  This was not the case as there was no basis to substantiate violation of the 4-car limit or false official statement being made.  The applicant’s complete submission is at Exhibit F.

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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.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded the contested Article 15 should be voided.  The Article 15 appears to have been properly accomplished and the applicant afforded all rights granted by statute and regulation.  We have not been convinced, by his submission, that his commander abused his discretionary authority when he imposed the nonjudicial punishment, and since we find no abuse of that authority, we find no reason to overturn the commander’s decision.  The Board therefore agrees with the recommendations of the Air Force and adopts the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, the Board finds no compelling basis to recommend granting the relief sought.

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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.

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The following members of the Board considered Docket Number 01-01938 in Executive Session on 8 May 2002, under the provisions of AFI 36-2603:

		Panel Chair
		Member
		Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Jun 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 31 Dec 01.
   Exhibit D.  Letter, AFPC/DPSF, dated 12 Mar 02.
   Exhibit E.  Letter, SAF/MRBR, dated 22 Mar 02.
   Exhibit F.  Letter, Applicant, dated 15 Apr 02.