RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  02-02168
							INDEX CODE:  126.04
    							COUNSEL:  NONE

    							HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His nonjudicial punishment under Article 15 and any reprimands be removed from his records.  

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APPLICANT CONTENDS THAT:

The charges were false and were brought against him as retaliation for an EEO complaint he previously filed.  These false allegations and injustice have had an adverse affect on his current federal employment.  

The applicant does not provide any supporting documents.  His application is at Exhibit A.  

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 18 October 1985.  He was progressively promoted to the grade of sergeant (E‑4).  He performed duties in the Air Force Specialty Code (AFSC) X1A251, Loadmaster.  He served in this capacity until 31 October 1995, when he was honorably released from active duty, having served 10 years and 13 days in the Regular Air Force.  After having been released from active duty, he was transferred to the Air Force Reserve and assigned to the Nonobligated Nonparticipating Ready Section (NNRPS).  He was honorably discharged from the Air Force Reserve effective 31 October 1998.   

On 22 May 1995, the applicant’s commander imposed nonjudicial punishment on the applicant, who was then serving in the grade of sergeant for violation of Article 92; for failing to check the light to the aft ramp and door, failing to check to see if everyone was strapped in, and not wearing a restraining harness on or about 26 January 1995, and derelection in the performance of his duty in that he willfully failed to refrain from drinking alcoholic beverages while on alert on or about 2 February 1995.  The punishment consisted of a reduction in grade to airman first class, suspended until 19 October 1995 unless sooner vacated, it would be remitted without further action, forfeiture of $250.00 pay per month for 2 months and 30 days of extra duty.  He appealed the punishment and a superior commander denied his appeal.  The foregoing proceedings were reviewed and found legally sufficient by the Assistant Staff Judge Advocate on 6 June 1995.

The remaining relevant facts pertaining to his nonjudicial punishment 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 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 submitted no evidence to justify his assertion of innocence and to support his charge of retaliation for filing an EEO compliant.  The applicant argues that his medical records show no trace of illegal substance or alcohol use.  This statement is aimed at the second specification of the Article 15 that he failed to refrain from drinking alcoholic beverages while on alert.  Even if a requirement existed to address alcohol use in medical records, it is irrelevant to whether the applicant was guilty of dereliction of duty for drinking alcoholic beverages while on alert.  Regarding the reprimands the applicant would like removed from his records, the applicant provides no information about the nature of the reprimands and none are in his record.  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.  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.  JAJM concludes that there are no legal errors exist requiring corrective action and do not recommend relief.  The JAJM evaluation is at Exhibit C.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 6 September 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.  Evidence has not been presented which would lead us to believe that the nonjudicial punishment, imposed on 22 May 1995, was 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 this Article 15, 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 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 15 be removed from his records.  As to the applicant’s request that any letters of reprimand be removed from his records, since his records contain no such letters, action by the Board on this request is not required.  

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.

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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 AFBCMR Docket No. 02-02168 in Executive Session on 6 February 2003 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 July 2002.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 26 August 2002.
    Exhibit D.  Letter, SAF/MRBR, dated 6 September 2002.