RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03430
		INDEX CODE:  126.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The punishment imposed upon her under Article 15, Uniformed Code of Military Justice (UCMJ), dated 28 May 1998, be removed from her records.

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APPLICANT CONTENDS THAT:

Her Article 15 was given to set an example throughout the wing and her commander’s intention was not to ruin her career.  She also states since the commander left the base shortly after, she was not allowed the opportunity to redeem herself.  She was passed over for promotion for major and decided to separate and join the Reserves.

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

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STATEMENT OF FACTS:

The applicant, a Reservist, is currently serving on active duty in the grade of captain.

On 28 May 1998, applicant was notified of her commander's intent to impose nonjudicial punishment upon her for making a false official statement, conduct unbecoming an officer and impeding an official investigation in violation of Articles 107, 133 and 134 of the Uniformed Code of Military Justice (UCMJ).

On 3 June 1998, after consulting with counsel, applicant waived her right to a trial by court-martial, but invoked her right for a personal appearance and to submit a written presentation.

On 8 June 1998, she was found guilty by her commander who imposed the following punishment: forfeiture of $250.00 of pay and a reprimand.

On 15 June 1998, the applicant waived her right to appeal the punishment.  On 18 June 1998, the Article 15 was filed in an Unfavorable Information File (UIF) and was found to be legally sufficient.

On 8 July 1998, the senior review authority, the Commander 16 AF, determined the Article 15 would be filed in her HQ USAF Officer Selection Record and Officer Command Selection Record.

On 30 June 2001, the applicant was released from active duty for nonselection for promotion and transferred to the reserves.  She has 11 years, 11 months and 12 days of active duty.

Applicant’s OPR profile as a captain is listed below.

			PERIOD ENDING		OVERALL EVALUATION

			  20 Dec 93	Meets Standards
			  20 Dec 94	Meets Standards
			  20 Dec 95	Meets Standards
			  15 Oct 96	Meets Standards
			  11 Oct 97	Meets Standards
			  29 Dec 98	Meets Standards
			   1 Oct 99	Meets Standards
			  20 Jun 00	Meets Standards
			  30 Jun 02	Meets Standards

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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 servicemember objects.  The commander, before imposing nonjudicial punishment, must notify the servicemember of the nature of the charged offense(s), the evidence supporting the offense, and the commander's intent to impose nonjudical punishment.  The servicemember 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 servicemember 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 servicemember committed the offense before imposing the Article 15.  The servicemember 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.

JAJM further states that removal of an Article 15 should only be granted when the evidence demonstrates an error or a clear injustice.  The applicant did not submit evidence that would warrant a change in the nonjudical action nor has she submitted evidence that she was the victim of an error or injustice.  Based on evidence to the contrary, JAJM recommends no relief be granted to have the Article 15 removed.

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 19 December 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 request for removal of the Article 15 imposed on 28 May 1998 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, conduct unbecoming an officer and impeding an official investigation, and made the decision to impose nonjudicial punishment under Article 15.  We note the applicant elected to accept nonjudicial punishment 
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.

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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-2003-03430 in Executive Session on 10 February 2004, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 10 Oct 03, w/atchs.
	Exhibit B.	Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 3 Dec 03.
	Exhibit D.	Letter, SAF/MRBR, dated 19 Dec 03.