RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBERS:  BC-2004-01407
INDEX CODE:  126.04
	XXXXXXXXXXXXXXXXX				COUNSEL: 
	XXXXXXXXXXXX					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His Article 15, Uniformed Code of Military Justice (UCMJ), action imposed on 18 December 2003, be invalidated and removed from his record as being illegally imposed and incorrect; he be restored to his previous grade of master sergeant (E-7); and he receive all appropriate back pay owing as a result of his reduction in grade.  In the event the Board does not invalidate the nonjudicial punishment action, as requested, he asks that the Board correct his record to restore him to the grade of master sergeant based on equity and because a reduction in grade as he approached retirement is a punishment far more severe than is appropriate in this case.  

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APPLICANT CONTENDS THAT:

The specification on his nonjudicial punishment action is contrary to law and legally insufficient because it fails in all material respects to specify the particular duty or duties, which it is alleged that he negligently failed to perform, and the particular manner in which he negligently failed to perform the unspecified duty or duties.  As such, the specification may not form the basis for the imposition for nonjudicial punishment and according to Air Force Instruction 51-202, it must be set aside.  

In support of his application, he provides a personal statement; a statement from his counsel; and copies of his Article 15 and two performance reports.   The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 3 February 1983, the applicant enlisted in the Regular Air Force at the age of 20 in the grade of airman first class (E-3) for a period of four years.  He was progressively promoted to the rank of master sergeant with a date of rank (DOR) of 1 April 2002.  

According to available records, the applicant was assigned as an equipment custodian, ADPE custodian, and section supervisor in the Theater Deployable Communications (TDC) section at Davis-Monthan Air Force Base, Arizona, in the Summer of 2000.  In the Fall of 2001, he was deployed to the TDC section in Oman.  While deployed he received a Letter of Reprimand (LOR), for mishandling government property. In addition, he received a Letter of Counseling (LOC), for insubordination to the squadron commander.  After returning early from his deployment in the Spring of 2002, because of family issues, the applicant was given an LOR for failure to adequately provide for his family during his deployment.  Subsequently, his commander held back his promotion for three months.  In June 2003, the applicant completed an inventory of the TDC equipment.  In August 2003, he received an LOR for failure to maintain control of the TDC section APDE account and for making statements to his supervisor about the sections readiness that were false. 

On 6 September 2003, after substantial fluctuations in the Status of Resources and Training Systems (SORTS) Report, the commander directed an inventory of the TDC equipment section, while the applicant was on leave.  The inventory revealed 95 items missing, while the current SORTS report showed all 95 of the items on-hand.  In addition, the investigation revealed more than 200 items that were listed as not-on-hand that were found to be on hand during the inventory.  After returning from his leave, the applicant assisted in locating some of the missing items, reducing the list down to 20 missing items valued at $19,271.  

A Commander-Directed Investigation (CDI) was conducted 8‑23 October 2003, to determine the facts and circumstances surrounding the reporting of the Theater Deployable Communications (TDC) equipment status.  It was indicated in the CDI findings that the applicant either willingly or through neglect caused the loss of military property of the United States.  The commander’s allegation that the applicant made false official statements on data gathered for consolidation into the squadron’s SORTS report was unsubstantiated.  The CDI investigator stated that he did not find any malicious intent or intent to defraud the government; however, the applicant’s kind of behavior should not go unpunished.  The investigator recommended that the applicant should receive nonjudicial punishment.

On 9 December 2003, his commander notified the applicant of his intent to impose nonjudicial punishment for being derelict in the performance of his duties as a Deployed Voice Communications Non-Commissioned Officer In Charge (NCOIC), as it was his duty to do.  After consulting counsel, the applicant waived his rights to demand a trial by court-martial and accepted non-judicial punishment, submitted a written presentation, and requested to make an oral presentation.  The commander determined the applicant committed one or more of the offenses alleged.  On 18 December 2003, the applicant received punishment of reduction in grade to technical sergeant (E-6) with a new date of rank of 18 December 2003 and a reprimand.  On 24 March 2004, the applicant submitted a letter of appeal through his civilian attorney.  On 9 April 2004, a superior commander denied his appeal. 

According to the military personnel database, the applicant was honorably relieved from active duty effective 30 June 2004, and was retired effective 1 July 2004 after serving 21 years, 4 months, and 28 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  JAJM states that AFI 51-202, paragraph 3.8 requires commanders, when giving nonjudicial punishment, to properly allege each offense to state a violation of the UCMJ consistent with the available facts and evidence.  The commanders must also make available to the member all statements and evidence upon which the commander intends to rely in making his or her decision.  In this particular case, no particular duty was set forth in the specification and, the spectrum of possible duties of a “Deployed Voice Communications NCOIC” may be broad.  Likewise, the manner in which the alleged violations occurred lends further ambiguity to the alleged offense.  Finally, the lengthy period of alleged violations appears inconsistent with the applicant’s performance reports prior to July 2003, which shows he met expectations and was ready for another promotion.  Thus taken alone, the specification in the Air Force Form 3070, Record of Nonjudicial Punishment Proceedings, would be insufficient under the UCMJ to provide notice to the applicant of the nature of the charged offense.  However, a lesser standard applies to nonjudicial punishment.  AFI 51-202, paragraph 3.8, allows nonjudicial punishment where the specification fails to include all elements of the offense.  It requires only that the member be reasonable informed of the nature of the alleged misconduct.  It is JAJM opinion that the applicant was reasonably informed of the nature of his misconduct because the Commander’s Directed Investigation (CDI) Report, provided to him, contained the particularity missing on the AF Form 3070.  The report describes the inventory problems with specificity in terms of numbers of items missing and items on hand listed as missing.  The relevant inventory lists were also provided.  By providing these materials to the applicant, the commander satisfied his obligation to reasonably inform him of the nature of his alleged misconduct.  

JAJM states that a set-aside of an Article 15 should only be granted when the evidence presented in the application demonstrates a probable material error or injustice.  It is JAJM opinion that in this case, there was neither.  JAJM states that while the wording of the Article 15 specification was inadequate and should not be countenanced, the deficiency cause neither a material error or injustice because the applicant was nevertheless informed of the nature of the charged offense, the evidence supporting the offense, and of the commander’s intent to impose nonjudicial punishment, thus satisfying the requirements of AFI 51-202.  

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation of AFLSA/JAJM regarding the removal of the applicant’s Article 15.  DPPPWB states that if the Board decides to remove the Article 15 as requested, the applicant’s original DOR for master sergeant was 1 April 2002.  Although his original DOR makes him eligible for promotion consideration for cycle 04E8 to senior master sergeant, his placement on the control roster on 30 September 2003 renders him ineligible in accordance to AFI 36-2502, Table 1.1, Rule 5.  Even if the Board removes both the Article 15 and control roster, the applicant would not be able to be considered supplementally as he has a projected retirement date of 30 June 2004 and does not have a current test on file.   The DPPPWB evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel rejects JAJM’s simplistic view of adequate procedures in this case.  Every accused facing nonjudicial punishment proceedings is entitled to the evidence upon which a commander will reply and to the legally sufficient specification.  It is not good enough to say an accused got the evidence and therefore his specification need not be legally sufficient.  The nature of this allegation in particular, dereliction of duty, is such that specificity is required at least as to the duty or duties involved.  To say the applicant was given the CDI Report is unacceptable.  Because of the broad reach of the report, in both time and circumstances, the applicant literally had to guess what duty or duties were at issue.  JAJM cannot legitimately state that an accused is entitled to proper specification by regulation and then dispense with the requirement when expedience calls for strained action.  A legally sufficient specification is critical because it gives the accused context in which to evaluate the evidence when making the decision about whether to accept an offer of nonjudicial punishment proceedings, or demand a trial by court-martial.  Without this context, the accused cannot perform even a basic proof analysis to identify which items of evidence are relevant to his case and which are not.  Nor can the accused identify which items of evidence he should challenge; or what evidence he can marshal in his defense.  Finally, the accused cannot judge the severity of the case.  The inability of the accused to perform these basic functions in relation to a criminal charge, one for which he might demand trial, serves to deprive the accused of substantive due process and is contrary to fundamental notions of fairness.  Plain and simple, it is error and injustice.  The applicant was forced to accept nonjudicial punishment because the government was unwilling to fully analyze evidence to draft a legitimate specification.  Because of the ambiguity he was faced with, the applicant had no practical choice but to seek to limit his exposure by accepting nonjudicial proceedings.  To this day, it is not clear just what duty he specifically failed to adequately perform, and how.  

The applicant has endured the indignity of retiring in a lesser grade on the basis of his shabby Article 15. His fate and faith, and the faith of his fellow enlisted members who pay attention to these actions, rests in the Board’s hands.  Request the Board mitigate this punishment as requested.  Justice, equity, and fairness require no less.  

The applicant’s rebuttal is at Exhibit F.

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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 is not persuaded that the nonjudicial punishment, imposed on 18 December 2003, was improper.  While the Air Force Form 3070 does not include the specifications or the particular duty or duties that the applicant negligently failed to perform, we note AFI 51-202, paragraph 3.8, allows nonjudicial punishment where the specification fails to include all elements of the offense.  It requires only that the member be reasonably informed of the nature of the alleged misconduct.  We agree with JAJM’s opinion that the applicant was reasonably informed of the nature of his misconduct because the Commander’s Directed Investigation (CDI) Report, provided to him, contained the particularity missing on the AF Form 3070.  The Board finds no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, the Board 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 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.  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 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 Board finds no basis upon which to favorably consider the applicant’s requests.  

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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 this application in Executive Session on 15 September 2004, under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number 
BC-2004-01407 was considered:

	Exhibit A.  DD Form 149, dated 20 Apr 04, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JA, dated 24 May 04.
	Exhibit D.  Letter, AFPC/DPPPWB, dated 22 Jun 04.
	Exhibit E.  Letter, SAF/MRBR, dated 9 Jul 04.
	Exhibit F.  Applicant’s Rebuttal, dated 27 Jul 04.