RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03716
		INDEX CODE:  126.00

	APPLICANT	COUNSEL:  NONE

	SSN	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

The punishment imposed upon her under Article 15, Uniform Code of Military Justice (UMCJ), dated 17 September 2001, be set aside and expunged from her records.

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APPLICANT CONTENDS THAT:

She vehemently denies committing the alleged offense as stated, as the grounds for the Article 15.  Her undocumented statement to the First Sergeant was taken out of context and is not adequate proof to warrant an Article 15.

Applicant's complete submission, with attachments, is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of master sergeant.

On 5 September 2001, the applicant was notified of her commander’s intent to impose nonjudicial punishment upon her for making a false official statement and leaving her place of duty without authorization.

After consulting with her counsel on 10 September 2001, she waived her right to trial by court-martial and accepted the Article 15.

She submitted a written presentation and made a personal appearance before her commander.  The commander upon reviewing all evidence determined the applicant was guilty.  The commander imposed the punishment of a reprimand and forfeiture of $400.00 of pay a month  for two months,  with one month suspended until 16 March 2002, unless sooner vacated.

The applicant submitted an appeal to the appellate authority and it was denied on 25 September 2001.  The Article 15 was filed in the applicant’s Unfavorable Information File (UIF).

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AIR FORCE EVALUATION:

AFLSA/JAJM states Article 15s are permitted and governed by the Manual for Courts-Martial (MCM) and AFI 51-202.  This allows commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  The commander, before imposing nonjudicial punishment, must notify the service member of the nature of the charged offense(s), the evidence supporting the offense, and the commander's intent to impose nonjudical punishment.  The service member then may consult with counsel to aid in determining whether to accept the nonjudicial punishment or demand a trial by court-martial.  Acceptance of the proceedings is a choice of forum; it is not an admission of guilt.

The service member in accepting the nonjudicial punishment may have a hearing with the commander.  He may have a spokesperson at the hearing, he may have witnesses appear and testify, and can present evidence.  The commander must consider any information presented during the hearing and must be convinced through reliable evidence that the service member committed the offense before imposing the Article 15.  The service member may contest their commander's determination or severity of the punishment received and may appeal to the next higher commander.  The appeal authority may set aside the punishment, decrease its severity, or deny the appeal.  Nonjudicial punishment does not constitute a criminal conviction.

The evidence shows the applicant had a history of unauthorized and unexplained absences.  The applicant’s supervisor, on 11 June 2001, counseled her about continuing to leave the office for an extended period of time without talking to her (supervisor).  The supervisor informed her that personal appointments were excessive to the point she was away from the office more than at work.  The First Sergeant interviewed the applicant on 14 August 2001 and she stated she was late for work on 17 July 2001, because she was at a dental appointment, but would not reveal any of the details regarding the dental appointment.  The applicant eventually admitted that she did not have an appointment but that she had called her supervisor to let her know where she was.  The supervisor stated that she did not know where the applicant was.  The supervisor further stated at 7:55AM a customer came and wanted to see the applicant; at 8:15AM the customer grew tired of waiting and requested to see the manager.  The applicant did not arrive to work until 8:45AM.  The First Sergeant concluded, “it has become obvious that she cannot tell the truth and consistently changes her story to meet her personal agenda.”  The First Sergeant’s statement summarizing the interview was proper evidence for the commander to consider when determining whether the applicant committed the alleged offenses.

JAJM further states that this case illustrates the difficulties in addressing the factual issues involved in nonjudicial punishment after the fact.  They feel the applicant should not prevail here absent clear error or injustice.  The applicant, by electing to resolve the allegation in the nonjudical forum, placed the responsibility to decide whether she did or did not commit the offense with her commander.  The commander then has the responsibility to determine the appropriate punishment if he determined the applicant committed the offense.  The commander weighed all the evidence, to include the credibility of various witness, in making her decision.  The commander determined the applicant committed the alleged misconduct and the appellate authority agreed and provided the applicant no relief on appeal.

Based on the information and evidence provided, JAJM recommends the applicant's request be denied.

A complete copy of the evaluation is attached 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 21 February 2003, for review and response.  As of this date, no response has been received by this office. 

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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 regarding the applicant’s requests that the Article 15 imposed on 17 September 2001 be set aside and expunged from her records.  We took notice of the applicant’s complete submission in judging the merits of the case.  However, we did not find it sufficient to override the rationale provided by AFLSA/JAJM.  The evidence of record reflects that her commander determined that she had committed the alleged offense of making a false official statement and leaving her place of duty without authority, and made the decision to impose nonjudicial punishment under Article 15.  We note the applicant elected to accept nonjudicial rather than being tried by court-martial.  We are not inclined to disturb the discretionary judgment of commanding officers, who are closer to events, absent a strong showing of abuse of that authority.  Therefore, in the absence of evidence which shows to our satisfaction that the applicant’s substantial rights were violated, she was coerced to waive any of her rights, or the commander who imposed the nonjudicial punishment abused his discretionary authority, we conclude that no basis exists to recommend favorable action on the applicant’s request.

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 issue(s) 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 AFBCMR Docket Number BC-2002-03716 in Executive Session on 24 April 2003 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 4 Oct 02, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 3 Feb 03.
   Exhibit D.  Letter, SAF/MRBR, dated 21 Feb 03.