RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01262
		INDEX CODE:  126.04
		COUNSEL:  
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  His two nonjudicial punishments under Article 15 of the Uniformed Code of Military Justice (UCMJ) and all relevant information i.e., OSI Reports and First Sergeant’s Letter, be permanently and completely removed from his records.

2.  He be reimbursed for all his legal expenses involved in his fight against the Article 15s.

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APPLICANT CONTENDS THAT:

Both Article 15s were issued out of bad judgment and highly questionable evidence.  The punishment far outweighed the crimes that he allegedly committed.  He is positive that there have been more serious offenses committed by military members who received little or no disciplinary actions.

He has just been able to gather the mental strength to attempt a rebuttal.  The mental anguish that he has suffered has caused him to receive VA disability.   He believes that if his oral and written testimonies are heard/viewed, the sheer amount of flaws in the handling of his case and irrelevancies to the charges will warrant his case to be heard.  In support of his case, he is willing to accept a lie detector test administered by the AFBCMR. He hopes that the evidence he has presented will be viewed as legitimate evidence that warrants the correction of his records.  His personal history before and after his service in the Air Force has been beyond reproach.  He is sure that the Board will see that he has been a person of unquestionable character.  In fact, his environment wanted to label him something he wasn’t and was the cause for his problems.  Since his discharge from the Air Force, he has obtained his Associates Degree in computers and is currently working Air Force contracts.  He has been married for over 3 years and has three children.  He has had no dealings with local or federal authorities and attends church regularly.  He doesn’t smoke nor do any drugs and seldom drinks.  He is the same upright person he has always been.  

His commander and first sergeant took a personal commitment to downsize personnel by using anything and everything at their disposal.  Both his commander and first sergeant were indeed guilty of falsely accusing him and were not acting in the best interests of the Air Force.  He would like it to be known that copies of his application along with other legal documents will be sent to both congressional members, news agencies and civil rights organizations pending the outcome of this case.  This is not a threat but a responsible measure as an American citizen to insure that other enlisted members do not go through the same ordeal he has.  Of all the individuals mentioned in the report, he is indeed the most honest and forthcoming person.

In support of his request, applicant provides a personal statement elaborating on the foregoing contentions and documents associated with the events and issues raised in his application.  

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

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 30 April 1986.  He continually served on active duty and was progressively promoted to the grade of sergeant. 

On 20 July 1992, the Mental Health Clinic, Ellsworth AFB, SD, performed a mental health evaluation on the applicant due to suicidal ideas or plans.  The mental health evaluation diagnosed him as having an adjustment disorder with depressed mood.  The examiner advised the commanding officer that the applicant had no medical disorder warranting medical action and was medically qualified for worldwide duty.

On 23 September 1993, a mental health evaluation was performed on the applicant after a referral for evaluation was requested because of his misconduct in July and August 1993 (2 instances of wrongful communication of a threat to injure).  The mental health evaluation contained a diagnosis of narcissistic personality traits.  Psychological testing revealed scale elevations which were indicative of individuals who:  react to criticism with feelings of rage, shame or humiliation; are interpersonally exploitative: take advantage of others to achieve his own ends; require constant attention and admiration; and have a grandiose sense of self importance.  The recommendation to the commanding officer was to consider administrative separation based on his pattern of misconduct, even though no “formal” mental disorder existed.  

On 5 October 1993, he was charged with wrongfully communicating a threat to injure on or about 30 July 1993 and 3 August 1993.  For these incidents, an Article 15, Uniform Code of Military Justice was imposed.  He was reduced to the grade of airman first class.

On 30 December 1993, he was charged with failure to go at the time prescribed to his appointed place of duty.  For this incident, he was reduced to the grade of airman.

On 26 January 1994, the applicant was notified by his commander that he was recommending he be discharged from the Air Force under the provisions of AFR 39-10, for a pattern of misconduct involving minor disciplinary infractions.  The specific reasons for this action were the aforementioned Article 15 punishments. He was advised of his rights in this matter and acknowledged receipt of the notification on that same date.  After consulting counsel he elected to waive his right to an administrative discharge board but submitted a statement in his own behalf.  In a legal review of the discharge case file, the staff judge advocate found it legally sufficient and recommended that the applicant be discharged from the Air Force with an under other than honorable conditions discharge and that the discharge not be suspended for a probationary period of rehabilitation.  On 23 March 1994, the discharge authority directed that the applicant be discharged from the Air Force under the provisions of AFR 39-10, Chapter 5, Section H, with a general discharge.  The applicant was discharged on 4 April 1994.  He served 7 years, 11 months, and 5 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the application and recommends denial.  JAJM states that nonjudicial punishment provided commanders with an essential and prompt means of maintaining good order and discipline for violations of the law and also to promote positive behavior changes in service members without the stigma of a court-martial conviction.  Accepting the proceedings is simply a choice of forum, not an admission of guilt.  By electing to resolve the allegation in the nonjudicial forum, he placed the responsibility to decide whether he committed the offenses with his commander.  The applicant was offered two nonjudicial punishment proceedings by his commander to resolve allegations he had threatened a civilian and that he was absent without leave.  While the applicant has made claims of injustice, he has not provided evidence to support these claims.  The allegations he claims should have been raised at the time of the incidents so that it would be possible to resolve them.  It is not possible to do so after that fact.  JAJM states that the evidence presented by the applicant does not mandate the relief requested and does not demonstrate an equitable basis for relief.

The JAJM evaluation is at Exhibit D.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation was forwarded to the applicant on 19 July 2002 for review and response within 30 days.  As of this date, this office has received no response.

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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 error or injustice.  We find no evidence of error in this case and after thoroughly reviewing the documentation applicant submitted in support of his appeal, we do not believe he has suffered from an injustice.  Evidence has not been presented which would lead us to believe that the nonjudicial punishments, imposed on 21 September 1993 and 30 December 1993 respectively, were improper.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence indicates that, during the processing of these Article 15 actions, the applicant was offered every right to which he was entitled.  He was represented by counsel, and submitted written matters for review by the imposing commander.  After considering the matters raised by the applicant, the commander determined that the applicant had committed one or more of the offenses alleged and imposed punishment on the applicant.  The applicant has not provided any evidence showing that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of these Article 15 punishments, or that the punishments exceeded the maximum authorized by the UCMJ.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider his request that the Article 15s be removed from his records to include the OSI reports and First Sergeant’s letter.  

4.  We have noted the applicant’s request for reimbursement for the legal fees he has incurred.  The law under which this Board operates authorizes the payment of monies due as a result of a correction of the record to rectify an error and/or an injustice.  Therefore, favorable consideration of this request would not be possible under any circumstances.

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 DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 this application in Executive Session on 13 November 2002, under the provisions of AFI 36-2603:
The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 April 2002 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 21 June 2002.
    Exhibit D.  Letter, SAF/MRBR, dated 19 July 2002.