RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBERS:  BC-2003-00321
INDEX CODE:  126.04
	XXXXXXXXXXXXXXXXXXX			COUNSEL: NONE

	XXXXXXXXXXXXX				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His Article 15, Uniformed Code of Military Justice (UCMJ), action imposed on 3 February 2000, be set aside.

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APPLICANT CONTENDS THAT:

The Article 15 he received was unjust, unwarranted, and unduly harsh.  His actions did not meet the standard of negligence as defined by the UCMJ.  The specific supply item in question was disposed of properly.  The Article 15 erroneously identifies the reason for his actions.  The issuing authority did not consult with the unit commander.  He has reason to believe the issuing authority improperly reviewed a “quasi-criminal” investigation report, which did not allow him to form an objective opinion as to the necessity of the Article 15.  

In support of his application, he provides a personal statement, and copies of the Article 15 in question, his response to the Article 15, his appeal of the nonjudicial punishment, the appeal denial, several character references, an excerpt of UCMJ Article 92, the Informational Report, the Report of Investigation, an excerpt of an inventory print-out, and Air Force Manual 23-110, Volume 2, Part 13, Basic.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 19 July 1978, the applicant enlisted in the Regular Air Force at the age of 18 in the grade of airman basic (E-1) for a period of four years.  He was progressively promoted to the rank of master sergeant (E-7) effective and with a date of rank of 1 October 1997.  The applicant received 22 performance ratings for the period of 17 July 1978 through 4 January 1999.  He received overall ratings of nine with an exception of one rating of eight under the early performance measure (scale 0-9) and ratings of five with an exception of one rating of four under the new performance measure (scale 1-5).  

On 20 January 2000, his commander notified the applicant of his intent to recommend the applicant be punished under Article 15, UCMJ, for being derelict in his performance of duties in that he negligently failed to ensure that a member under his supervision followed established supply procedures.  On 2 February 2000, after consulting with military defense counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial proceedings.  He submitted a written presentation to and made a personal appearance before his commander.  On 3 February 2000, having considered the evidence and the applicant’s response to the Article 15, the imposing authority determined the applicant did commit the offense charged.  Punishment consisted of a reprimand and forfeiture of $50 pay.  His commander chose not to file the record of nonjudicial punishment in the applicant’s Unfavorable Information File or his Senior Non-Commissioned Officer Selection Record.  The applicant appealed the punishment and requested the action be set aside.  The applicant’s appeal was denied.  Legal reviews completed on 14 and 17 February 2000 found the record legally sufficient.  

The applicant was honorably relieved from active duty effective 31 August 2000 was retired effective 1 September 2000 after serving 22 years, 1 month, and 12 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of relief because, in their opinion, the applicant’s contentions are without merit and constitute neither error nor injustice.  JAJM states that his commander had ample evidence to conclude that the applicant had engaged in the alleged misconduct by negligently failing to ensure a member under his supervision followed established supply procedures.  The applicant himself admitted he had no sign-out procedure to monitor the comings and goings of government assets.  It is JAJM’s opinion that it was clear the applicant was negligent in his duties as they related to the care and custody of materials within his section, and his duty as a supervisor.  JAJM states there is no indication that the commander’s findings are either arbitrary or capricious.  In the absence of such a showing these findings should not be disturbed.  

JAJM states that when evidence of an error or injustice is missing, it is clear that the AFBCMR process is not intended to simply second-guess the appropriateness of the judgments of the field commanders.  In the case of nonjudicial punishment, Congress (and the Secretary via AFI 51-202) has designated only two officials with the responsibility for determining the appropriateness of an otherwise lawful punishment:  the commander and the appeal authority.  So long as they are acting within the scope of authority granted them by law, their judgment 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.  A member accepting non-judicial punishment proceedings may have a hearing with the imposing commander.  The member may have a spokesman at the hearing, may request that witnesses appear and testify, and may present evidence.  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 nonjudicial punishment action, set aside the punishment, decrease its severity, or deny the appeal.  

It is JAJM’s opinion that the evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action.  The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims the advisory opinion is based on misunderstandings and misrepresentations made in the investigator’s report.  From the time of his assignment to the Security Forces Squadron in September 1995 until August 2000, it seems he could do no wrong.  He was the person the commander called when problems within the unit arose and his performance reports reflect this.  When his new officer in charge was assigned in August 2000, it seems he could do no right.  The applicant’s rebuttal is at Exhibit E.

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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.  After reviewing all the evidence provided, the Board majority is not persuaded that the nonjudicial punishment, imposed on 3 February 2000, was improper.  The majority of the Board finds no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, the Board majority does 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.  The Board majority does not believe there is 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 denied the request.  There is nothing in the evidence provided, other than the applicant’s assertions, which would that would lead the Board majority to believe that the actions by the imposing commander were inappropriate or that he did not have access to all of the 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, the Board majority agrees with the assessment by AFLSA/JAJM regarding the issues raised in this application and finds no evidence of error or injustice.  Accordingly, based on the available evidence of record, the majority of the Board finds no basis upon which to favorably consider his request that the Article 15 be removed from his records.  

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RECOMMENDATION OF THE BOARD:

A majority of the Board finds insufficient evidence of error or injustice and recommends the application be denied.  

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The following members of the Board considered this application, AFBCMR Docket Number BC-2003-00321 in Executive Session on 13 April 2004, under the provisions of AFI 36‑2603:

	Panel Chair
	Member
	Member

By a majority vote, the Board recommended denial of the application.  XXXXX voted to correct the record as requested but did not wish to submit a minority report.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 25 Jan 03 with attachments.
     Exhibit B.  Applicant’s Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 3 Apr 03.
     Exhibit D.  Letter, SAF/MRBR, dated 18 Apr 03.
     Exhibit E.  Applicant’s Rebuttal, dtd 15 Feb 03, w/atchs.

						
									Panel Chair

AFBCMR BC-2003-00321

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 
                                        FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXX

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that the applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.  

	Please advise the applicant accordingly.  

                                
                                Director
                                Air Force Review Boards Agency