RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01252
		INDEX CODE:  126.03
		COUNSEL:  NONE
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  25 SEP 2008

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APPLICANT REQUESTS THAT:

The Article 15, Record of Nonjudicial Punishment (NJP), imposed on 16 Feb 07, be set aside and his punishment be rescinded.

He be promoted to the rank of chief master sergeant (E-9), reinstated as a First Sergeant, and reassigned to Langley AFB.

His name be removed from the Air Force’s Force Shaping List.

The previously denied Meritorious Service Medal (MSM), First Oak Leaf Cluster (w/1 OLC) be approved.

A letter be placed in his Unit Personnel Records Group (UPRG) explaining that he was unable to complete his duties due to the allegations against him and a letter explaining the final outcome of these matters.

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APPLICANT CONTENDS THAT:

The evidence used by his commander for the Article 15 was inadmissible because the evidence was obtained as a result of an illegal search.  He was treated unfairly and this case should have been dismissed; therefore, the evidence should be suppressed and the action set aside.

In support of his request, applicant provided a personal statement, AF Form 3070, Record of Nonjudicial Punishment Proceedings, a copy of his response and appeal to the Article 15, character statements, documents from his defense counsel, an extract of AFI 33-119, Air Force Messaging, a copy of his civilian attorney contract, promotion non-recommendation letters, a citation from a deployment to Iraq, a memorandum of investigation, phone records, an extract of AFI 36-213, Withdrawal Procedures, copies of letters relating to withdrawal of his special duty identifier, a letter from Life Skills, and a budget statement.

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force on 6 Mar 84, for a four-year term, and was progressively promoted to the grade of senior master sergeant (E-8).

On 23 Jan 07, the commander notified the applicant of his intent to initiate non-judicial punishment pursuant to Article 15 of the Uniform Code of Military Justice (UCMJ).  The commander cited the bases for this action were that he wrongfully had sexual intercourse with a woman not his wife; was willfully derelict in the performance of his duties by using his government-issued blackberry cellular device and government computer for unauthorized personal use; sent offensive material using his government email account; and made a false official statement with regard to his use of the blackberry cellular device and his government email account. 

The applicant consulted with counsel, waived his right to demand trail by court-martial, and accepted the Article 15.  He submitted written statements in his own behalf and requested an appearance before the commander.  On 16 Feb 07, his commander found that he committed two of the three alleged offenses.  Specifically, his commander concluded that nonjudicial punishment was appropriate for the adultery and the willful dereliction of duty allegations, and withdrew the allegation of making a false official statement.

The applicant’s punishment consisted of a reprimand, a suspended reduction in rank to the grade of master sergeant, and forfeiture of $2,170.00 pay per month for 2 months, with the amount over $892.00 per month for 2 months suspended through 15 Aug 07.  

On 1 Mar 07, the applicant appealed the action which was denied.

On 30 Mar 07, the applicant requested retirement, effective 1 August 2007.

On 21 Jun 07, AFPC/DPPPR requested the applicant withdraw the decoration portion of his request until he first exhausted administrative channels for the decoration.  DPPPR also informed him that once a decision had been rendered by the decoration approval authority and if he believes an injustice existed, he could then resubmit a DD Form 149 with the approval authority’s final decision to SAF/MRBR.

On 1 Aug 07, he was retired in the grade of senior master sergeant.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial and states, in part, that Article 15 punishment should be set aside only when the evidence presented in the application demonstrates a material error or injustice.  The applicant’s entire argument is not relevant to the nonjudicial punishment forum, and he fails to demonstrate either error or injustice.  

The applicant admits his culpability and apologizes for his actions in his responses.  He contends the offenses were discovered through, what he believes, was an illegal search of his government email.  

He states that his former assistant first sergeant entered his office and noticed an open email on his computer which reflected negatively on him.  Out of curiosity the former assistant examined his emails.  This occurred because the applicant left his access card in the computer and unlocked, which he should not have done.  The former assistant was then able to load applicant’s PST file to a portable hard drive, to see what other emails applicant had written about him.  While he was looking through the emails, he found evidence of the offenses and turned this evidence over to his squadron commander.

The applicant contends that the information gathered by his former assistant was an illegal search.  He cites M.R.E. 311 and United States v. Long, 61 MJ 539 (NMCCA 2005), which were both also referenced in a brief from his area defense counsel.  However, whether the search was illegal, or the evidence might have possibly been suppressed in court is irrelevant.  Under the advice of two experienced defense counsels, the applicant chose to accept the Article 15, knowing full well, the extent of the evidence against him and the advantages and limitations of the Article 15 process.  

According to the Manual for Court-Martial, the military rules of evidence do not apply to Article 15 proceedings, other than with respect to privileges.  Thus, his claim that the Article 15 should be set aside due to an illegal search, is without merit.  He could have demanded trial by court-martial in lieu of the Article 15, where the rules of evidence are fully applicable and he could have made the appropriate motion to suppress evidence.  He chose not to, most likely to avoid the risk of a criminal conviction and possibly confinement time and a punitive discharge.

In his application to the Board, he states that, in his lawyers’ opinion, a trial would have likely resulted in a conviction.  He also states, he was willing to take responsibility for his conduct and he did not want to further burden his unit with this matter.  There is no evidence of clear error or injustice in this case, and no evidence that any commander abused his discretionary authority or acted in a capricious matter [sic].  The punishment was well below the maximum authorized, and well within the discretion of the commander.  

The AFLOA/JAJM complete evaluation is at Exhibit C.
 
AFPC/DPPRRP recommends denial and states, in part, that Force Shaping policy specified that those members who were denied reenlistment would be separated on 31 Jul 07, unless the commander took definitive action to retain the member.

Although the applicant previously had a date of separation (DOS) of 15 Jun 09, since he was under a suspended Article 15 punishment, his DOS was rolled-back to 31 Jul 07.  Under the DOS Rollback Program, retirement eligible airmen are afforded the opportunity to request retirement for 1 Aug 07 or earlier.  If he had not voluntarily requested a retirement date of 1 Aug 07, he would have been separated (Title 10, U.S.C. 8914 states that an enlisted member must request retirement). 

Under the enlisted Force Shaping policy, if a situation arises requiring the applicant’s DOS to revert back to 15 Jun 09, the Air Force Personnel Center (AFPC) has the authority to change the applicant’s DOS from 31 Jul 07 to 15 Jun 09.  Commanders, the Military Personnel Flight, and Staff Judge Advocates (SJA) are charged with working together to ensure airmen are discharged, separated, or retired under the correct provisions and with the appropriate service characterization.  

The AFPC/DPPRRP evaluation, with attachment, is at Exhibit D.

AFPC/DPPPWB recommends denial of the applicant’s request for promotion to chief master sergeant, a grade to which he has never been selected.  DPPPWB defers to the recommendation of AFLOA/JAJM regarding the applicant’s request for setting aside the Article 15.  

DPPPWB states in part, that based on the applicant’s date of rank (DOR) to senior master sergeant of 1 Dec 04, the first time he would have normally been considered for promotion to chief master sergeant was cycle 06E9.  However, on 19 and 24 Oct 06, his commander nonrecommended him for promotion, based on his engagement in an adulterous relationship and dereliction of duties.

Since the promotion eligibility cutoff date for cycle 07E9 was 31 Jul 07, he was ineligible for promotion consideration to chief master sergeant for this cycle based on his suspended reduction through 15 Aug 07 (per AFI 36-2502, Table 1.1, Rule 19).

The AFPC/DPPPWB complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 3 Aug 07, for review and comment within 30 days.  As of this date, this office has not received a response.

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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.  The applicant’s complete submission was thoroughly reviewed and his contentions were duly noted.  However, we did not find his assertions nor the documentation submitted in support of his appeal, sufficiently persuasive to warrant corrective action.  After a thorough review of the facts and circumstances of this case, we find no evidence which would lead us to believe that the information used as a basis for the Article 15 was erroneous, or that it was obtained improperly.  Furthermore, no evidence has been presented to convince us the applicant was the victim of differential treatment or that there was an abuse of the commander’s discretionary authority.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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-2007-01252 in Executive Session on 27 September 2007, under the provisions of AFI 36-2603:

			XXXXXXXXXX, Panel Chair
			XXXXXXXXXX, Member
			XXXXXXXXXX, Member

The following documentary evidence was considered for AFBCMR Docket BC-2007-01252:

    Exhibit A.  DD Form 149, w/atchs, dated 9 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 1 Jun 07.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 15 Jun 07, w/atch.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 31 Jul 07.
    Exhibit F.  Letter, SAF/MRBR, dated 3 Aug 07.

                                   XXXXXXXXXX
                                   Panel Chair