RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-01340
								INDEX CODE:  126.04
	XXXXXXXXXXXXX				COUNSEL:  NONE

								HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  1 November 2008

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APPLICANT REQUESTS THAT:

Action under Article 15, Uniform Code of Military Justice (UCMJ), imposed on 5 June 2003, be removed (set aside) due to fraudulent evidence, as the allegations brought against him and used to discredit him were false.

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APPLICANT CONTENDS THAT:

Information has been received showing that the accuser, a female USAF airman, admitted under oath while testifying at a court-martial against an Army specialist, that she deceived investigators concerning the facts of both his case and the case being tried.  It shows that she lied about a great many things in the years leading up to the trial.

Due to her false allegations, the second finding in the Article 15 being contested was given much more weight than it should have been given, and he was punished for another’s joke when he allegedly stated to a female co-worker that he wanted to “get into her drawers.”  Another NCO actually made that comment in reference to his need to get office supplies from her desk drawer and, when it was mentioned again, he participated in the joke, but never directed it against the female co-worker.  When an investigation ensued, the off-hand comment made by another was attributed to him, exaggerated in its significance, and he was punished for it.

In support of his appeal, he has provided copies of a personal statement, dated 22 April 2007, and a notarized DA Form 2823, Sworn Statement, taken from a United States Army Reservist, Major S----, dated 5 January 2007.

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

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STATEMENT OF FACTS:

Non-Judicial Punishment (NJP) is permitted by Article 15, UCMJ, and governed by the Manual for Courts-Martial and Air Force Instruction 51-202.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  The service member must first be notified by the commander of the nature of the charged offense, the supporting evidence, and of the commander’s intent to impose NJP.  The service member may then consult with a defense counsel to determine whether to accept the NJP or demand trial by court-martial.  Accepting the proceedings is simply a choice of a forum (service members have the right to demand trial by court-martial instead); it is not an admission of guilt.  By electing to resolve the allegation in the non-judicial forum, a service member places the responsibility of determining his/her guilt with their commander.

Applicant was assigned to the 48th Security Forces Squadron, Lakenheath AB, UK, when he was offered NJP under Article 15, UCMJ, on 29 May 2003, for, on or about 13 February 2003, wrongfully requesting “meaningless sex” from a female subordinate, for, on or about 3 February 2003, wrongfully communicating to a female subordinate that he wanted to get into her drawers, and for, between on or about 1 January 2003, and on or about 30 January 2003, wrongfully striking a female Ministry of Defense employee on the buttocks with a folder.  After consulting with his defense counsel, he voluntarily waived his right to demand trial by court-martial and accepted NJP proceedings on 5 June 2003.  He requested a personal presentation before the imposing commander and also submitted written matters for the commander’s consideration.  After considering the evidence as well as the applicant’s response, the commander found him guilty of the first two allegations, but determined that NJP was not appropriate for the third allegation and lined through that allegation.  Punishment consisted of a suspended reduction in grade from technical sergeant to staff sergeant, suspended until 4 December 2003, forfeiture of $1,141.00 pay, and a reprimand.

Two years after this incident, applicant was again given NJP for committing a similar offense at Thule AB, Greenland.  He was offered NJP on 13 October 2005, for allegedly maltreating a female subordinate by inappropriately touching her on her leg and on her back, and for, on divers occasions, pursuing an unprofessional relationship with a female subordinate by inviting her to his room for tea, calling her on the telephone, and introducing himself by first name.  After consulting with an attorney, he accepted NJP proceedings and submitted matters, both oral and written, for the commander’s consideration.  The commander evaluated all the evidence and found that he had committed the offenses.  Punishment consisted of a reduction in grade from master sergeant to technical sergeant, and a reprimand.  Applicant appealed the action and his appeal was denied as the NJP action was found to be legally sufficient and in compliance with applicable regulations.  The applicant then appealed the NJP action to the AFBCMR on 9 May 2006, AFBCMR Docket Number BC-2006-01715.  He made similar contentions that are contained in his current appeal, alleging the use of “flawed evidence” to support the NJP action which was based on the allegations of a female subordinate airman.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial and no relief be granted because the application is untimely, and the applicant’s contentions are without merit and provide no legal basis for relief.  A commander’s action should only be set aside when the evidence demonstrates an error or injustice.  The applicant has not presented evidence of a meaningful error or clear injustice in the Article 15 process, and there is no evidence in the record that the commander abused his discretion.

Since the NJP was imposed on 5 June 2003 and this application is dated 22 April 2007, the application is untimely.  Applicant presents no evidence to justify his untimely filing; rather, he states the Board should excuse his untimeliness because “the allegations against (him) were false and deliberately created as a result of a psychological condition.  As a result, the entire investigation against (him) and subsequent punishment was based on fabricated testimony.”  Applicant was perfectly aware of AFBCMR deadlines when he filed his previous application in 2006, which was timely, and he has provided absolutely no reason or justification to explain why he waited almost four years before filing this application.  His contention that the allegations were false has nothing to do with his ability to file a two-page document within three years after the action was imposed, especially since he contends that the allegations were false. 

Applicant does not provide any compelling evidence to support his request; he simply implies that because his accuser was supposedly caught lying about her extra-marital affairs in a completely different case, she must have been lying when she accused him of the allegations that resulted in this NJP.  Even if the purported affidavit from Major S--- is completely accurate, the fact that the complainant may have hidden her extra-marital affairs from investigators during a rape trial does not in any manner demonstrate that the applicant was not guilty of the conduct for which he was punished.  If anything, the fact that he was again punished for similar misconduct two years later against another female airman at a different assignment corroborates the complainant’s allegations and reveals applicant’s modus operandi. 

The affidavit from Major S---- in no way clears applicant of any wrongdoing.  It does not demonstrate a clear error in the Article 15 process, and it by no means proves any injustice in this case.  Major S---- states how applicant admitted to making sexual comments to the complainant in the past, thinking it was a joke, and the applicant argues that one of the comments for which he was punished was also a joke.  He apparently believes that making unwanted sexual comments to much lower ranking female subordinates is a joke, and he has been caught and punished twice for his offenses.  He now comes to this Board suggesting that a grave injustice has occurred and the complainant lied when she accused him of his offenses.  However, he presents no evidence showing that the complainant lied to investigators during the investigation into his misconduct, and he presents no evidence of clear error during the NJP process.  He presents no evidence of injustice, and provides absolutely no reason to grant him the relief requested.

As a member accepting NJP proceedings, applicant had the right to have a hearing with the commander, to have a spokesman at the hearing, to request that witnesses appear and testify, and to present evidence.  He availed himself of all his rights and, after his commander found by a preponderance of the evidence that he committed the offenses alleged, he had the right to contest the determination or the severity of the punishment by appealing to the next higher commander who may set aside the punishment, decrease its severity, or deny the appeal.  Applicant chose not to appeal the commander’s decision, and he presents no evidence that he was denied due process or that the proceedings were unfair.

Since the applicant does not contend that any specific actions have been taken by reviewing authorities that require correction of his record, any decision regarding his NJP must be done as a matter of clemency.  He sets forth no basis for clemency however, except that he blames everyone but himself.  By selecting the NJP forum and waiving his right to trial by court-martial, where the government would have to prove the allegations in a court of law beyond a reasonable doubt, he selected his commander as the authority to weigh the evidence and decide his culpability, if any, and impose punishment if appropriate.  His commander determined that Article 15 action was warranted for two of the three alleged offenses, and there is no evidence in the record that the commander abused his discretion.

When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended to simply second-guess the appropriateness of the judgments of field commanders.  In the case of NJP, 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 lawfully 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.

The AFLOA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was forwarded to the applicant on 13 July 2007, for review and comment, within 30 days.  However, 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 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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office 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.  He has presented no evidence showing that the complainant lied to investigators during the investigation into his misconduct; rather, he simply implies that because his accuser was supposedly caught lying about her extra-marital affairs in a completely different case, she must have been lying when she accused him of the allegations that resulted in this NJP.  Even if the purported affidavit he furnished is completely accurate, the fact that the complainant may have hidden her extra-marital affairs from investigators during a rape trial does not in any manner demonstrate that the applicant was not guilty of the conduct for which he was punished.  Additionally, he has presented no evidence of clear error during the NJP process, and, since he does not contend that any specific actions have been taken by reviewing authorities that require correction of his record, any decision regarding his NJP must be done as a matter of clemency, and he sets forth no basis for clemency.  By selecting the NJP forum and waiving his right to trial by court-martial, where the government would have to prove the allegations in a court of law beyond a reasonable doubt, he selected his commander as the authority to weigh the evidence and decide his culpability, if any, and impose punishment if appropriate.  His commander determined that Article 15 action was warranted for two of the three alleged offenses, and there is no evidence in the record that the commander abused his discretion.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in 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 Docket Number BC-2007-01340 in Executive Session on 23 August 2007, under the provisions of AFI 36-2603:

				, Panel Chair
				, Member
				, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 22 Jun 07.
    Exhibit D.  Letter, SAF/MRBR, dated 13 Jul 07.

                                  
                                   Panel Chair