RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  02-03180
							INDEX CODE:  126.04
    							COUNSEL:  NONE

    							HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He did not violate Article 95 (resisting arrest) of the UCMJ.  At the time of the incident, he had complete confidence that his former commander would dismiss the Article 15 after listening to his oral and written presentation.  Consequently, the number of security forces statements may have forced his former commander to impose punishment on him regardless of whether he was telling the truth.  He pleaded with his former commander that he did not commit any violation.  Regardless of the outcome, he feels ashamed that his integrity, reputation, and good name were tarnished in the 15-minute incident.  While he was assigned to the MPF at Osan, he was the base Personnel Reliability Program manager, Special Duty Assignment Pay manager and focal point for all arrivals to Osan.  He was responsible for managing the most critical personnel program in the MPF.  Because of his leadership drive, he was one of a few staff sergeants who held a supervisory rating position.  Due to his position he was well known to leadership and his reputation as an exemplary NCO was important to him.  He sought every opportunity to excel and volunteer.  He can honestly say without a doubt that he was the hardest and most deserving worker in the MPF.  He went to complete a full 12 months’ duty with no break, nonstop work, to include working on Saturdays and Sundays.  At times, it was not uncommon for him to work 20 hours a day.  His date of separation is 6 June 2003.  He has to decide if the Air Force is right for him or if he’s right for the Air Force.  He loves being in the Air Force and would be privileged to continue his career, however, he is also concerned with progression and feels that this Article 15 will surely sink his chances of achieving the grades of senior and chief master sergeant.  

In support of his appeal, applicant provides a personal statement, documents associated with his Article 15, a copy of a Security Forces Incident Report, supporting statements and character references; copies of his Letters/Certificates of Appreciation, Enlisted Performance Reports (EPRs) for the period beginning 7 June 1995 and ending 1 April 2002 and a listing of his awards and decoration.  His complete application, with attachments, is at Exhibit A.  

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STATEMENT OF FACTS:

On 7 June 1995, the applicant enlisted in the Regular Air Force for a period of 4 years.  He was progressively promoted to the grade of senior airman (E-4).  On 7 June 1999, he reenlisted and has been progressively promoted to the grade of staff sergeant (E-5), effective and with a date of rank of 1 February 2001.  He has a current date of separation of 6 June 2003.

	PERIOD ENDING	PROMOTION RECOMMENDATION

	  18 Feb 97			5
	  04 Oct 97			4
	  28 Sep 98			NOT RATED - REPORT REMOVED
				BY ORDER OF THE SECAF
	  28 Sep 99			5
    01 Jul 00						5
    01 Apr 01						5
    01 Apr 02						4

On 17 April 2002, the applicant’s commander imposed nonjudicial punishment on the applicant for violation of Article 95, for resisting arrest on or about 10 March 2002.  The punishment consisted of a reduction in grade to senior airman, suspended until 14 May 2002 when, unless sooner vacated, it would be remitted without further action, forfeiture of $876.00 pay and 30 days of restriction to Osan Air Base, Republic of Korea.  On 23 April 2002, after considering the applicant’s appeal, the commander modified the punishment of forfeiture of pay to $438.00 and restriction to base to 23 days.  The foregoing proceedings were reviewed and found legally sufficient by the Assistant Staff Judge Advocate on 24 April 2002.

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 this case illustrates the difficulties in addressing the factual issues involved in nonjudicial punishment.  By electing to resolve the allegation in the nonjudicial forum, he placed the responsibility to decide whether he had committed the offense with his commander.  Likewise, the commander was given the responsibility to determine an appropriate punishment if the commander determined the applicant had committed the offense.  The commander had to weigh all the evidence before him, including the credibility of the various witnesses, to make his decision.  The commander ultimately resolved the issue of the alleged misconduct against the applicant.  The applicant appealed only the severity of the punishment, not the nonjudicial punishment action itself.  The applicant got relief once when the commander reconsidered his determination and granted the applicant’s appeal from the Article 15 punishment by reducing its severity.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.  The JAJM evaluation is at Exhibit C.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that he believes his case is with merit because he contends that he did not commit any violation of the UCMJ and his character and demeanor should support his contention.  He feels confident that he has provided a complete and accurate written testimony of his case with details.  He admits that he cannot prove that the security forces omitted and exaggerated the truth.  However, he contends that they did.  He can honestly state that he did not grab a security forces member or any other member by the shirt or otherwise and that he did walk away after giving his I.D. card to a security force.  This is an incident that got blown up bigger than it needed to be.  He believes the security forces’ inexperience and inability to diffuse the situation caused undue and unnecessary action.  He respectfully asks with dignity the Board review and judge his case with compassion and decide in the best interests of the Air Force.

The applicant’s letter, with attachments, is at Exhibit E.

On 24 April 2003, the applicant submitted two additional character references and a copy of his latest EPR (See 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.  Evidence has not been presented which would lead us to believe that the nonjudicial punishment, imposed on 17 April 2002, was improper.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, we do not believe he has suffered an injustice.  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 consulted with counsel, and submitted written and oral matters for review by the imposing commander and was given the opportunity to present his arguments.  The imposing commander determined that the applicant did commit the offense and imposed punishment.  The applicant appealed the punishment and after considering the matters raised by the applicant in his appeal, the commander modified his original punishment.  There is nothing in the evidence provided, other than the applicant’s assertions, which would lead us to believe that the actions by the imposing commander were inappropriate or that he did not have access to all of the appropriate information necessary on which to base his decision.  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 this Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, we defer to the opinion of legal authority regarding this issue and find no evidence of error or injustice.  Accordingly, we find no basis upon which to favorably consider his request.  

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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 in Executive Session on 30 April 2003 under the provisions of AFI 36-2603:

The following documentary evidence for AFBCMR Docket No. 02-03180 was considered:

    Exhibit A.  DD Form 149, dated 5 Oct 02 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 13 Jan 03.
    Exhibit D.  Letter, SAF/MRBR, dated 31 Jan 03.
    Exhibit E.  Letter, Applicant, dated 5 Feb 03 w/atchs.
    Exhibit F.  Letter, Applicant, dated 24 Apr 03 w/atchs.