RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01995
		INDEX CODE:  111.02
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: 29 DECEMBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Enlisted Performance Reports (EPR) rendered for the periods 26 April 1998 through 25 April 1999; 26 April 1999 through 25 April 2000; and 26 April 2000 through 20 March 2001, be removed from his records.

2.  His two Article 15's be removed from his records.

3.  He be retained in the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The allegations brought against him were unsupported because the majority of his section indicated he never used the alleged terms, and those who brought the allegations against him did so because they either had hidden agendas or otherwise desired his job.  He believes all the accomplishments during his entire career have been disregarded.  The discharge board should have never taken place.  Because he received two Article 15's his commander felt compelled to initiate the discharge even though his commander thought he should be allowed the opportunity to overcome a recent Article 15 and reduction in rank.  His discharge was initially cited as Misconduct - Minor Disciplinary Infractions.  However, throughout the board proceedings it was the government's contention that his duty performance was unsatisfactory and he should be discharged for unsatisfactory duty performance.  He was surprised his duty performance was being quoted as a reason for his discharge considering he was previously notified that the basis was misconduct.  The board proceedings were inconsistent with the recommendations of the legal office and his commander.  The board's decision to discharge him for unsatisfactory performance did not afford him the opportunity to respond to that basis.  Neither he nor his attorneys were put on notice of that basis resulting in his discharge.  Ultimately, he believes he was not afforded a fair or full hearing because of this.

In support of his request, applicant provided a personal statement, promotion scores, copies of his Degree certificates and unofficial transcripts.  

His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 15 May 1985. He is a technical sergeant currently assigned at Kirtland AFB, NM. On 24 March 1999, his commander offered him nonjudicial punishment (NJP) under Article 15 for allegedly disrespecting two superior officers on divers occasions in violation of Article 89, Uniform Code of Military Justice (UCMJ).  Specifically, he allegedly referred to a female captain and a female major as "bitch" and "dumb cunt" or words to that effect.  After consulting with his defense attorney, he accepted NJP proceedings and waived his right to demand trail by court martial.  He presented matters to the commander in writing and orally at a personal presentation.  On 27 May 1999, after having considered the evidence and defense matters, the commander concluded he committed the offenses alleged and imposed punishment consisting of forfeiture of $250.00 pay per month for two months and a reprimand.  He did not appeal the punishment and the NJP action underwent legal review at two separate levels and was found to be legally sufficient.  He was subsequently offered NJP on 14 November 2000, for one specification of dereliction of duty for failing to review a hospital dining facility checklist in violation of Article 92, UCMJ.  After consulting with counsel, he accepted NJP and provided a written and oral presentation to his commander.  After considering the evidence and the applicant's presentation the commander concluded the applicant committed the offense alleged and imposed punishment consisting of a reduction in grade to staff sergeant.  His appeal of the punishment was denied 12 December 2000.  The NJP action underwent legal review and was found to be legally sufficient.  

He was recently selected for promotion (Cycle 07E7) to master sergeant, with a promotion sequence number of 5806. 

The following is a resume of his recent EPR profile:

		PERIOD ENDING	PROMOTION RECOMMENDATION

		15 October 2006		5
		15 October 2005		5
		15 October 2004		5
		15 October 2003		5
		20 March 2003		5
		20 March 2002		4
		20 March 2001		2(Contested Report)
		25 April 2000		3(Contested Report)
		25 April 1999		4(Contested Report)

________________________________________________________________
AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denial.  DPSIDEP states the supporting documents he provided only address a request for a review of his discharge board proceedings.  DPSIDEP finds the documentation confusing.  The applicant is asking to be retained in the Air Force and to have his EPR's remitted; making it sound as though he is currently pending administrative discharge; however, he reenlisted on 13 August 2007 and has an assignment to Lackland AFB with a reporting date of October 2007 and DPSIDEP sees no recent derogatory information on him in the Military Personnel Data System (MILPDS).  Therefore, DPSIDEP assumes he is referring to a past incident, which obviously did not take place because he is still on active duty.   After reviewing the contested reports, DPSIDEP determined the report ending 25 April 1999 although not a perfect "firewall" report, there was no derogatory information and the report was not, nor was it required to be referred to the applicant.  The report ending 25 April 2000, again, is not a perfect "firewall" report and although it is a borderline referral, it does not state the applicant is not meeting Air Force standards.  Additionally, the applicant had one Article 15 during this period and it was not included in the EPR.  The report was not, nor required to be referred to the applicant.  The report ending 20 March 2001, the applicant received his second Article 15 during this reporting period and it was mentioned in this EPR.  The report only referred to the Article 15 that was received during this reporting period and therefore was authorized.  The report was properly referred and the applicant submitted a rebuttal that was reviewed and considered by the appropriate personnel.  DPSIDEP found no procedural errors or injustices in any of the contested reports.  DPSIDEP contends the applicant did in fact receive two Articles 15.  It looks like the applicant was given a break on the first Article 15 when it could have been, but was not mentioned in the 25 April 2000 EPR.  However, after the second Article 15, which is only reasonable, the rating chain determined to include the Article 15 in the 20 March 2001 EPR.  DPSIDEP states the request is from six to eight years after the fact, lacks evidence supporting his allegations and there are no procedural errors found in the contested reports. 

The complete DPSIDEP evaluation is at Exhibit C.

AFLOA/JAJM recommends denial.  JAJM states a commander considering a case for disposition under Article 15 exercises personal discretion in evaluating the case, both as to whether nonjudicial punishment is appropriate and if so, as to the nature and amount of punishment.  Unless a commander's authority to act in a particular case is properly withheld, the commander's discretion is unfettered so long as the commander acts within the limits and parameters of the commander's legal authority.  JAJM states the applicant presents no documentation to support his broad assertions.  The fact remains that two different commanders imposed NJP for two different offenses.  When evidence of an error or injustice is missing, it is clear the BCMR process is not intended to simply second-guess the appropriateness of the judgment of field commanders.  In the case of NJP, Congress 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 to 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.  Applicant provided no evidence of error or injustice, nor does the record reveal any.  Both commanders acted well within the scope of their authority and discretion, and there is no indication that either commander acted in an arbitrary or capricious manner.  Absent a clear error or injustice, the applicant should not prevail.  Procedural and substantive requirements having been met in both NJP actions, the application is untimely and the request for equitable relief is without legal or factual justification.

The complete JAJM evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 31 August 2006 and 14 September 2007 for review and comment within 30 days.  As of this date, this office has received no response.

__________________________________________________________________

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 an error or injustice.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded the contested Article 15's should be voided.  His contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the available evidence of record. The Article 15's were properly administered and the applicant was afforded all rights granted by statute and regulation.  The nonjudicial punishment was within legal limits, appropriate to the offense, and does not appear unjust or disproportionate.  Evidence has not been provided which would lead us to believe that the administrative actions taken by his commanders were beyond their scope of authority or that they abused their discretionary authority in taking those actions.  Further, we are not persuaded by the evidence provided that the contested performance reports are not a true and accurate assessment of his behavior and demonstrated potential during the specified time periods or that the comments contained in the reports were in error or contrary to the provisions of the governing instruction.  Therefore, in the absence of persuasive 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 issues involved. Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered BC-2007-01995 in Executive Session on 8 November 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 22 June 2007, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter AFLOA/JAJM, dated 17 August 2007, w/atchs.
   Exhibit D.  Letter AFPC/DPSIDEP, dated 13 September 2007.
   Exhibit E.  Letter, SAF/MRBR, dated 31 August 2007.