RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-01078
		INDEX CODE:  111.02, 126.03

		COUNSEL:  XXXX XXXX

		HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Enlisted Performance Report (EPR) rendered for the period 16 Sep 00 through 5 Mar 01 be declared void and removed from his records.

His EPR rendered for the period 6 Mar 01 through 30 Sep 01 be declared void and removed from his records; and, that the report be reaccomplished with the evaluation rewritten and considered for a senior-level indorsement by the wing commander.

The nonjudicial punishment under Article 15 imposed on 29 Dec 00 be set aside and removed from his records.

All allied derogatory actions and comments be deleted from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

After he stopped a dangerous driver, he accidentally struck him.  The driver then stabbed him. The Article 15 he received for this incident was not appropriate because he did not instigate the attack.

He was under stress which might have caused him to make poor value judgments.

He was promised that no disciplinary action would be taken.

He was blindsided by the lack of a timely official notification of the group commander's intent to place the Article 15 in his selection folder.

He was the victim of selective punishment.

The group commander exerted inappropriate pressure on him regarding the Article 15.  She delayed the decision on filing the Article 15 in his selection folder until after he exercised his option to appeal or not appeal.

He was not given the opportunity to respond to the additional referral remarks made later by additional raters of the EPR closing 5 Mar 01.

He was denied the wing commander's indorsement on his EPR closing 30 Sep 01 because of the Article 15.

He was not provided sufficient time to reply to the Article 15, which was highly unfair to a career noncommissioned officer (NCO).

The Unfavorable Information File (UIF) was not initiated in a timely manner because of a lack of communication between the group commander and the squadron commander.

The incident was one minor error in judgment in an otherwise stellar career, and no civil charges were filed against him.

In support of his appeal, the applicant provided a counsel's brief, copies of documentation pertaining to the Article 15, contested reports, and other documents associated with the matter under review.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently serving on active duty in the grade of master sergeant, having been promoted to that grade on 1 May 98.  His Total Active Federal Military Service Date (TAFMSD) is 2 Aug 83.

Applicant's EPR profile since 1992 follows: 

     PERIOD ENDING                            EVALUATION 

	 8 Feb 92		5
	 8 Feb 93		5
	 8 Feb 94		5
	 8 Feb 95		5
	 8 Feb 96		5
	 8 Feb 97		5
	 8 Feb 98		5
	 8 Feb 99		5
	 8 Feb 00		5
	15 Sep 00		5
  *	 5 Mar 01		4 (Referral)
  *	30 Sep 01		5
	30 Sep 02		5

* Contested reports.

On 29 Dec 00, the applicant received nonjudicial punishment under Article 15 for unlawfully striking another individual (civilian) in the mouth with his hand on 24 Nov 00.  He was reduced from the grade of master sergeant to technical sergeant, which was suspended until 28 Jun 01, after which it was remitted, and was ordered to forfeit $500 per month for two months.  The applicant did not appeal.  The appellate authority indicated that the Article 15 would be filed in the applicant's UIF.

On 5 Jan 01, the group commander notified the applicant that she intended to place the record of his Article 15 punishment in his Senior Noncommissioned Officer (SNCO) Selection Record.  The applicant acknowledged receipt and, on 9 Jan 01, provided a statement on his behalf.

On 10 Jan 01, the group commander determined that the Article 15 would be filed in the SNCO Selection Record.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial noting the applicant's contentions that he was promised that no action would be taken against him regarding the incident, and that the punishment he received was selective in nature.  According to AFLSA/JAJM, no such promise was made nor did the applicant’s submission make out such a promise.  Even if such a “promise” had been made, all commanders in the applicant’s chain of command possessed authority to impose nonjudicial punishment upon him and a decision by a lower commander is not binding upon a senior commander.  In addition, one important factor has not been pointed out.  To reduce a master sergeant in an Article 15 action, the commander must be at least a lieutenant colonel.  Although not specified, they noted that the squadron commander who signed the EPR is a major.  It is common practice to defer Article 15 action to a commander who has the authority to impose an appropriate punishment.  In this case, the first eligible commander in the chain of command was the group commander, a colonel, who in fact was the commander who imposed punishment and did impose a reduction.  The imposition of an Article 15 was within the group commander’s authority and it was not clear how this punishment could be considered selective.

AFLSA/JAJM noted the argument that the Article 15's placement in the applicant's selection folder was done in an untimely manner and that the process took a month and a half.  In their view, the timeframe was incorrect.  The Article 15 process was begun on 20 Dec 00 and punishment was imposed on 29 Dec 00.  The New Year's holiday intervened.  On 5 Jan 01, a memorandum was sent to the applicant informing him the Article 15 would be placed in his selection folder.  On 9 Jan 01, the applicant responded.  On 10 Jan 01, the commander made the final decision to file the Article 15 in the applicant’s selection folder.  The arguments of untimeliness are unfounded, given the timeline described.

According to AFLSA/JAJM, no inappropriate pressure was placed on the applicant regarding the decision to appeal or not appeal the Article 15.  The decision to file the action in a selection folder was made essentially contemporaneous with the decision to impose punishment.  Because the commander imposing punishment was not a general court-martial convening authority, the decision to file was subject to review by the next senior commander under any circumstances. This reviewing commander was also the same commander to whom the appeal of the Article 15 action would have been made.  There was no advantage gained by the commander or lost by the applicant under these circumstances.  Similarly, any UIF action was also mandated.  An Article 15 action where the punishment is not executed immediately, i.e., where the punishment is suspended or forfeiture of pay extends for more than one month, is a mandatory UIF entry.  UIF placement of an Article 15 with punishment that takes effect immediately is at the discretion of the commander.

The applicant asserts that he was denied an extension to consult with counsel before accepting the Article 15.  On the AF Form 3070 that the applicant signed, he initialed he understood his rights and had consulted with a lawyer.  Additionally, there was no evidence that the applicant requested an extension from the squadron commander.  Applicant should not be heard now to contradict his statements at the time of the proceeding.

The applicant stated that as the UIF was not initiated until Mar 01 and was backdated, this was unfair.  The commander directed the UIF be established on 29 Dec 00.  The interim disposition date was the date the punishment or suspension period was completed (28 Jun 01 in this case).  This is the date before which the entry cannot be removed.  The actual disposition date is two years from the date the commander imposed the punishment (28 Dec 02 in this case).  This is the date, when absent any other entry, the UIF entry would be removed.  In the applicant’s case, even though the UIF was backdated, the calculation of time of the UIF would not change despite initiation in March 01.  There was no harm to the applicant.

AFLSA/JAJM indicated that the applicant’s complaint about the result was also unwarranted.  He made his election to resolve the allegation in the nonjudicial forum after having been advised that his commander would make the decision whether he had committed the offenses.  He placed the responsibility with his commander to weigh all the evidence, including the credibility of the various witnesses, and make a decision, instead of demanding his right to trial by court-martial, with all its attendant rights and formal procedure.  He chose instead to handle the issue in the less formal nonjudicial punishment forum, with its much less severe consequences.  There was sufficient evidence for the commander to determine the offense had been committed.  The applicant’s arguments clearly failed to convince the commander who imposed punishment and he chose not to appeal.  While a different fact finder may have come to a different conclusion, the commander’s findings are neither arbitrary nor capricious and should not be disturbed.

When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended to simply second-guess the appropriateness of the judgments of field commanders.  In the case of nonjudicial punishment, Congress (and the Secretary via AFI 51-202) have designated only two officials with the responsibility for determining the appropriateness of an otherwise lawful punishment:  the commander and the appeal authority.  So long as they are lawfully acting within the scope of authority granted them by law, their judgment should not be disturbed just because others might disagree.  Commanders “on the scene” have first-hand access to facts and a unique appreciation for the needs of morale and discipline in their command that even the best-intentioned higher headquarters cannot match.  Applicant has not shown an error or irregularity in the process of the Article 15 proceedings.

In AFLSA/JAJM's view, a set aside of the Article 15 should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant was insufficient to warrant setting aside the Article 15 action, and did not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.  AFLSA/JAJM indicated that they defer to AFPC as to the question of the appropriateness of the removal/alteration of the applicant’s EPR.

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

AFPC/DPPPE recommended denial.  They indicated that the 5 Mar 01 report was referred and processed in accordance with AFI 36-2406.  A report is a referral when an evaluator places a mark in the far left hand block of any performance factor in Section III (reference AFI 36-2406, paragraph 3.9.1.1) or comments are ".... derogatory in nature, imply/refer to behavior incompatible with or not meeting minimum standards of personal or professional conduct, character, judgment or integrity, and/or refer to disciplinary actions,” (reference AFI 36-2406, paragraph 3.9.1.2).  The additional rater’s mark in Section III, Item 3, Leadership, is in the second to the left block and is not a referral mark.  Further, although the comment in question is not a positive one, it clearly indicates standards were met.  It does not meet the standards for a referral.  It appears to be a clarification of the additional rater’s mark in Section III, Item 3.  More importantly, an evaluator must address downgraded markings, thus meeting the intent of the AFI.

Regarding the applicant's contention that he was not given an opportunity for senior rater indorsement on his 30 Sep 01 report because of the Article 15, AFPC/DPPPE stated that there was no evidence the decision to close out the report at the senior rater’s deputy was based on either the Article 15 or the actual incident.  Therefore, even if the AFBCMR voids the Article 15, the report is still valid as written.

According to AFPC/DPPPE, it is Air Force policy that an evaluation report is accurate as written when it becomes a matter of record.  They contend that once a report is accepted for file, only strong, clear evidence to the contrary warrants correction or removal from an individual’s record.  The applicant did not provide convincing evidence to show the evaluations to be erroneous or unjust or that the lack of a senior rater indorsement on his 30 Sep 01 report was due to the Article 15.

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

AFPC/DPPPWB indicated that they defer to the recommendation of AFLSA/JAJM.  However, should the AFBCMR grant his request to remove the 5 Mar 01 referral report and void the Article 15, providing he is otherwise eligible, the applicant would be entitled to supplemental promotion consideration beginning with cycle 0lE8.  As stated by HQ AFPC/DPPPE, there was no evidence to show the lack of a senior rater indorsement on the 30 Sep 01 report was due to the Article 15; therefore, the report is valid as written.

A complete copy of the AFPC/DPPPWB evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on 4 Oct 02 for review and response.  By letter, dated 23 Oct 02, the applicant requested that his case be temporarily withdrawn (Exhibit G).

Counsel reviewed the advisory opinions and furnished a response indicating that, as is typical, they sided with "management" and minimized the applicant's contentions.  The applicant did elect nonjudicial punishment under Article 15 but presumed that he would have a reasonable opportunity to defend himself at a fair hearing.  Sadly, the commander had already made up her mind.  The applicant was denied an extension to meaningfully consult with counsel before accepting the Article 15.  Once the applicant told the commander he would not appeal, she backstabbed him and filed the negative matter in his selection folder and effectively denied him promotion.  The applicant was doing his best to salvage his career--he presumed that his selection folder would be "clean" if he declined to appeal the commander's decision.  The reason he failed to receive a senior rater indorsement was the complained of Article 15.  Although the key document against him was a police report, the applicant continues to insist that the report is highly inaccurate.  

According to counsel, the applicant has amassed a marvelous record, and he continues to "soldier on."  His work is impeccable and his leadership is dedicated.  He is president-elect of the Davis-Monthan Top 3 Association and his squadron's nominee for the 2002 Lance P. Sijan Leadership Award.  He is Chairperson for the Senior Noncommissioned Officer (SNCO) Induction Seminar.  He has completed his bachelor's degree in Professional Aeronautics.  Clearly, this aberration should not destroy his upward movement.  The offending Article 15 should be removed from his records and he should be made whole.

Counsel's complete response, with attachments, is at Exhibit I.

_________________________________________________________________

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.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions or the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs).  The evidence of record indicates that the applicant's commander determined that he had committed the alleged offense of unlawfully striking another individual in the mouth with his hand, and made the decision to impose nonjudicial punishment under Article 15.  The applicant elected not to appeal the punishment.  We are not inclined to disturb the discretionary judgment of commanding officers, who are closer to events, absent a strong showing of abuse of that authority.  Also, in light of our conclusion that the Article 15 should not be removed, we find no evidence which would lead us to believe that the contested reports were inaccurate depictions of the applicant's performance at the time they were rendered.  In fact, the applicant provided a statement from his commander indicating that he did not receive a senior rater indorsement on his EPR closing 30 Sep 01 because of the Article 15.  In view of the foregoing, and in the absence of clear-cut evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  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.

_________________________________________________________________

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 AFBCMR Docket Number BC-2002-01078 in Executive Session on 8 Jul 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 18 Jun 02.
    Exhibit D.  Letter, AFPC/DPPPE, dated 13 Sep 02.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 16 Sep 02, w/atch.
    Exhibit F.  Letter, SAF/MRBR, dated 4 Oct 02.
    Exhibit G.  Letter, applicant, dated 23 Oct 02.
    Exhibit H.  Letter, AFBCMR, dated 30 Oct 02.
    Exhibit I.  Letter, counsel, dated 9 Jan 03, w/atchs.