RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03183
		INDEX CODE:  111.02, 131.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Enlisted Performance Reports (EPRs) rendered for the periods 17 January 1998 through 16 January 1999 and 17 January 1999 through 16 January 2000 be declared void and removed from his records.

2  The punishment imposed on him under Article 15, Uniform Code of Military Justice (UCMJ), dated 16 September 1999 be removed.

3.  He be reconsidered for promotion to technical sergeant based on what his WAPS score would have been but for the above contested documents.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was falsely arrested and punished prior to arraignment.  Squadron authorities failed to remove any documents, performance ratings, or punishments that were influenced by the above arrest when civil charges were dropped.  He was subjected to double standards when punished by Squadron officials for offenses when no actual proof was present.  His supervisors refused to accept responsibility for illegal computer configurations that they instituted.  No feedbacks were administered for most of a reporting period, and then when they were, wrong forms were used and he was held to the standards of a senior noncommissioned officer.  He was punished with a letter of counseling (LOC) and an Article 15 for the same offense.

In support of the appeal, applicant submits a personal statement, an excel document that briefs impositions and documents associated with the issues under appeal.  Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of staff sergeant, with an effective date and date of rank for the promotion of 1 September 1997.  His total active Federal military service date is 24 August 1988.  He entered his most recent enlistment on 28 August 1997, when he reenlisted for a period of 6 years.  Based on subsequent extensions of this enlistment, information in the personnel data system indicates he currently has an established date of separation of 27 December 2006.  His High Year of Tenure date is 1 August 2008.

His Enlisted Performance Report (EPR) profile since 1996 reflects the following:

      PERIOD ENDING                 EVALUATION OF POTENTIAL

          5 Aug 96				  5
          5 Aug 97				  5
         16 Jan 98				  5
        *16 Jan 99				  3
        *16 Jan 00				  2 (Referral)
         30 Nov 00				  4
         14 Oct 01				  4
         14 Oct 02				  5

      *Contested Reports.  The applicant did not appeal the
       reports to the Evaluation Reports Appeal Board (ERAB).

Documents provided by the applicant reveal the following actions.

The applicant was issued a No Contact Direct Order to have no contact with his spouse or her family members.  On 30 December 1998, the applicant was issued a Letter of Reprimand (LOR) for assaulting his spouse on or about 22 December 1998.  The applicant acknowledged receipt of the LOR and submitted additional matters for review and requested that the LOR be removed.  On 22 June 1999, the applicant was issued a Letter of Reprimand (LOR) for violation of general instructions on the use of and access of a government computer by accessing and downloading pornographic materials.  The applicant acknowledged receipt and submitted additional matters for the commander’s review, requesting that the LOR be terminated.  Documents concerning the disposition of his requests concerning the LORs are not a matter of record.

On 9 September 1999, the applicant’s commander notified the applicant that he was considering whether to impose nonjudicial punishment on the applicant under Article 15, UCMJ, based on allegations that the applicant had been derelict in the performance of his duties by negligently failing to properly tie down a trailer and secure the live bombs as directed by the pertinent Technical Order.  The applicant was advised of his rights in the matter.  After consulting counsel, the applicant waived his right to demand trial by court-martial and accepted the nonjudicial proceedings. He requested a personal appearance before the commander and provided written comments for the commander’s review.  After considering the matters presented by the applicant, the commander determined he had committed one or more of the offenses alleged and imposed punishment on the applicant consisting of a reduction in grade to senior airman (E-4), suspended until 15 March 2000, after which time, unless sooner vacated, it would be remitted without further action.  He was also ordered to perform 45 days of extra duty.  The applicant acknowledged receipt of the action and elected not appeal the punishment.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states that nonjudicial punishment is permitted by Article 15, UCMJ (10 U.S.C. 815), and governed by the Manual for Courts-Martial and Air Force Instruction 51-202.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Service members first must be notified by their commanders of the nature of the charged offense, the evidence supporting the offense, and of the commander’s intent to impose nonjudicial punishment.  The service member may then consult with a defense counsel to determine whether to accept nonjudicial punishment proceedings or demand trial by court-martial.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.

A member accepting nonjudicial punishment proceedings may have a hearing with the commander.  The member may have a spokesman at the hearing, may request that witnesses appeal and testify, and may present evidence.  The commander must consider any information offered during that hearing and must be convinced that the member committed the offense before imposing punishment.  Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander.  The appeal authority may set aside the Article 15, set aside the punishment, decrease the severity of the punishment, or deny the appeal.

The applicant’s argument that he was punished twice for the same offense is, in JAJM’s opinion, without merit.  The applicant submitted evidence that in August 1999 he received an LOC from his supervisor for failing to properly secure a bomb on a trailer.  An LOC is not considered punishment.  An LOC is an administrative tool authorized by AFI 36-2907 “to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit’s mission.”  The applicant’s conduct resulted in live ammunition not being well secured during its transport.  Because of the severity of the applicant’s action, the commander determined that nonjudicial punishment was necessary.  The applicant’s commander carefully considered the evidence, including the applicant’s written matters and personal appearance, before making a decision.  The commander’s decision to impose nonjudicial punishment in this situation was lawful and appropriate.

Unless it is shown that the commander’s findings were either arbitrary or capricious, they 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) has given the commander the authority to determine the appropriate forum to address misconduct.  Once a commander determines nonjudicial punishment is the appropriate forum, the accused can reject the nonjudicial punishment and demand trial by court-martial.  If the accused accepts and later appeals, the appellate authority can set aside the nonjudicial punishment.  So long as they are lawfully acting within the scope of authority granted them by law, the judgment of the commander and appellate authority 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.  In this case, the applicant accepted the nonjudicial punishment forum and did not appeal.

In reference to the applicant contending that it was a violation of his constitutional rights to get a Letter of Reprimand (LOR) before he was convicted, that he was acquitted of all prior civil charges and charged with disorderly conduct, and the civilian conviction eventually was set aside as if it never happened; they state the following:  Like an LOC, an LOR is an administrative tool, not a punishment.  A commander may take an administrative action when he believes it is warranted by the military member’s conduct.  Commanders should take administrative action promptly and need not wait for the outcome of civilian adjudication.  Moreover, the applicant was not acquitted of the charges of assault and unlawful imprisonment.  He entered into a plea agreement in which he pled guilty to disorderly conduct; the assault and unlawful imprisonment charges were either dismissed or not brought against him.  He agreed to pay a fine of $1000 (with $750 suspended), serve 10 days in jail (with 9 days suspended and 1 day time served), attend anger management classes, and be on summary probation for one year.  After he had completed the conditions of his sentence, the applicant applied for the judgment to be set aside.  The set aside was granted; however, that action does not signify a finding of not guilty nor does it mean it is as if it never happened.

A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The basis of the applicant’s request for relief is insufficient to warrant setting aside the Article 15 action, and does 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.  Therefore, they recommend that no relief be granted.

A complete copy of the evaluation is attached at Exhibit C.

AFPC/DPPPE recommended denial.  DPPPE states that there are no derogatory comments contained in the 16 January 1999 EPR.  The applicant cited no errors in this EPR and, in DPPPE’s opinion, the applicant has failed to prove the documented performance in this report was inaccurate.  As to the report closing 16 January 2000, DPPPE indicated that, based on the JAJM opinion that no evidence has been provided to show the Article 15 action was erroneous or unjust and in view of the regulatory provisions which encourage evaluators to comment in performance reports on misconduct that reflects a disregard of the law or adverse actions such as Articles 15, Letters of Reprimand, Admonishment or Counseling, or placement on the Control Roster, the applicant has again failed to prove that the documented performance in the January 2000 report is inaccurate.   Based on the above, DPPPE strongly recommends denial of the applicant’s request to void the contested reports.

A complete copy of their evaluation is attached at Exhibit D.

AFPC/DPPPWB states that they defer to the recommendation of AFLSA/JAJM regarding the Article 15 and AFPC/DPPPE regarding the removal of the two reports.  Noting the fact that the contested documents affected the applicant’s eligibility and consideration for promotion during cycles 00E6 and 01E6, should the Board decide in the applicant’s favor, his total scores would not increase sufficiently to render him a select for either cycle.

A complete copy of their evaluation, with attachment, is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 7 March 2003, copies of the Air Force evaluations were forwarded to the applicant for review and response within 30 days.  As of this date, this office has received no response.

_________________________________________________________________

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 reviewing the evidence of record, we are not persuaded that the applicant’s records are in error or that he has been the victim of an injustice.  His contentions are noted; however, in our opinion, the detailed comments provided by the appropriate Air Force offices adequately address those allegations.  Therefore, we agree with opinions and recommendations of the Air Force and adopt their rationale as the basis for the conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

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 this application, BC-2002-03183, in Executive Session on 14 August 2003, under the provisions of AFI 36-2603:
The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 2 Oct 02, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 30 Dec 02.
	Exhibit D.	Letter, AFPC/DPPPE, dated 4 Feb 03.
	Exhibit E.	Letter, AFPC/DPPPWB, dated 13 Feb 03.
	Exhibit F	Letter, AFBCMR, dated 7 Mar 03.