RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00860
		INDEX CODE:  126.04

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

The Article 15 imposed on 16 Apr 79 be sealed or expunged from his records.

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APPLICANT CONTENDS THAT:

The Article 15 should have stayed with the base.  He went through the Drug and Alcohol Rehabilitation Program and graduated, which was not indicated on his employment background check.  He has not used drugs in over 20 years since being discharged.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 7 Mar 77 in the grade of airman basic for a period of four years.  He was promoted to the grade of sergeant with an effective date and date of rank of 1 Sep 79.  

A resume of applicant’s airman performance reports (APR) profile follows:

	      PERIOD CLOSING			OVERALL EVALUATION

06 Mar 78							8
			04 Dec 78							8
			04 Dec 79							9
			04 Dec 80							9

On 4 Apr 79, applicant received nonjudicial punishment for possession of marijuana, on or about 25 Mar 79.  On 16 Apr 79, after consulting with counsel, applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He submitted a written presentation to his commander.  On 16 Apr 79, his commander determined he had committed the offense alleged and imposed punishment consisting of a suspended reduction to airman until 15 Aug 79, unless sooner vacated and a forfeiture of $50 pay.

On 6 Mar 81, applicant was honorably released from active duty under the provisions of AFR 39-10, by reason of expiration term of active obligated service, and transferred to the Air Force Reserve.  He was credited with four years of active duty service.  He was honorably discharged for the Air Force Reserve on 9 Feb 83.  

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the case file and recommended denial.  JAJM states that nonjudicial punishment is permitted by Article 15, UCMJ (10 USC 815), and governed by the Manual for Courts-Martial (MCM) and Air Force Instruction 51-202 (formerly AFR 111-9).  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.

Applicant does not contest the merits of the Article 15.  What he essentially requests is that his Article 15 record not be made available to others, either by sealing or expunging the records.  There is no legal basis to do what the applicant requests.  Absent clear error or injustice, the applicant should not prevail.  While the Privacy Act protects Article 15 records, the applicant likely signed a release authorizing some organization to glean information about his background, including his marijuana possession.  This prior release is outside the control of the Air Force and would possibly still be available to a potential new employer from the organization that performed the background check.  Applicant’s records are being maintained pursuant to regulations.

A complete copy of the evaluation is 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 7 May 04 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit D).

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  The evidence of record reflects that, after considering all matters presented by the applicant, his commander determined he had committed the offense alleged, and made the decision to impose nonjudicial punishment under Article 15, UCMJ; the applicant did not appeal the punishment.  By electing to resolve the allegation in the nonjudicial forum, the applicant placed the responsibility to decide whether he had committed the offense with his commander.  The applicant does not contest the merits of the Article 15, but simply requests that his Article 15 record not be made available to others, either by sealing or expunging the records.  Applicant has not provided any evidence to sufficiently convince the Board that the commander abused his discretionary authority in imposing the Article 15 punishment, that his substantial rights were violated during the processing of the Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application. 

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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-2004-00860 in Executive Session on 8 July 2004, under the provisions of AFI 36-2603:
The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Mar 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLSA/JAJM, dated 27 Apr 04.
    Exhibit D.  Letter, SAF/MRBR, dated 7 May 04.