RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03509
		INDEX NUMBER:  126.00
	XXXXXXXXXXX	COUNSEL:  

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The Article 15 imposed on her on 30 Apr 02 be set aside.

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APPLICANT CONTENDS THAT:

Applicant’s counsel, in a five-page brief with attachments, indicates the offense for which the applicant was charged did not warrant an Article 15 and even if it did the punishment imposed was unduly severe.  

Counsel argues that the punishment imposed upon the applicant for a first time offense was out of line.  Counsel also argues that it is very clear that there was no intent to make a “false official statement with intent to deceive” as the applicant was charged.  It would be extremely foolish for anyone to deceive a commander about the type of surgery taking place at a location that they had disclosed, by a doctor they had identified in the same building that you and your supervisor worked.

Counsel provides a statement from the applicant giving her summary of events.  He has also attached a copy of the Article 15, which includes the applicant’s written presentation and appeal of the Article 15 punishment.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 17 Apr 96 and is presently serving on active duty in the grade of senior airman.  The applicant was promoted to the grade of staff sergeant effective 1 Dec 01.  On 23 Apr 02, the applicant was offered proceedings under Article 15 for violation of the Uniform Code of Military Justice (UCMJ), Article 107, for the offense of making a false official statement with intent to deceive.  The applicant was accused of making the statement “it is a nasal type surgery” or words to that effect, when she was undergoing surgery for a Bilateral Augmentation Mammoplasty RT Mastopexy.  On 26 Apr 02, the applicant consulted counsel, accepted proceedings under Article 15, and submitted a written presentation.  On 30 Apr 02, the applicant’s commander determined that she had committed the offense charged and imposed punishment consisting of a reprimand and a reduction to the grade of E-4, senior airman.  The applicant appealed the punishment.  The appellate authority denied the applicant’s appeal.

A resume of the applicant’s enlisted performance reports (EPRs) follows:

	Closeout Date				Overall Rating

	  16 Dec 97					4
	  06 Feb 99					4
	  01 Nov 99					5
	  01 Nov 00					5
	  14 Apr 01					5
	  14 Apr 02					3

Additional relevant facts pertaining to this application are contained in the evaluation prepared by the appropriate offices of the Air Force found at Exhibits C and D.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  The applicant’s personnel records indicated that she had been involved in misconduct prior to receiving the Article 15.  The applicant received an administrative letter of counseling on 5 Jan 01 for failure to obey an order in violation of Article 92, UCMJ.  She received a second letter of counseling on     30 Nov 01 for again failing to obey an order and a letter of reprimand on 25 Feb 02 for another failure to obey an order.  Misconduct is commonly addressed in a graduated manner, with more severe action in response to continued misconduct.  More serious action is normally appropriate in cases where previous rehabilitative efforts have failed.

The applicant acknowledges in her application, as well as her responses to the Article 15, that she told her supervisor that she was having nasal surgery that, at the time, she knew was false.  The applicant should not prevail here absent clear error or injustice.  By electing to resolve the allegation in the nonjudicial forum, the applicant placed the responsibility to decide whether she had committed the offense with her commander.  Likewise, the commander was given the responsibility to determine an appropriate punishment if she determined the applicant had committed the offense.  A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence submitted by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation of AFLSA/JAJM.  They provide information regarding the applicant’s original date of rank as a staff sergeant should the Board want to grant the relief requested.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 14 Mar 03 for review and comment within 30 days.  To date, a response has not been received.

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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.  After reviewing the complete evidence of record, we are not persuaded that the applicant has been the victim of an error or injustice warranting the relief requested.  Although the applicant has an overall good record of performance, we note that prior to the contested Article 15, she was involved in other disciplinary infractions, which resulted in administrative action against her.  This directly challenges counsel’s argument that the Article 15 action was too severe for a first-time offense.  The applicant indicates that she was not candid with her supervisor regarding her scheduled surgery because she considered it personal and that she pointed at her nose in jest when pressed for more information.  Unfortunately, she does not indicate that she ever provided a direct and honest response to what was a reasonable question from her supervisor.  Consequently, given the circumstances, we do not find her commander’s decision to punish her under Article 15 arbitrary or capricious.  Therefore, we find no basis to recommend granting the relief requested.

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 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 Docket Number BC-2002-03509 in Executive Session on 15 April 2003, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 3 Feb 03.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 26 Feb 03.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Mar 03.