RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02217
		INDEX CODE:  126.03
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  12 JAN 2009

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15, Nonjudicial Punishment (NJP) action imposed on 30 Jul 01, be set-aside and permanently removed from his record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He believes the punishment was unfair because he was punished to a 60-day base restriction and 45 days of extra duty, which exceeded the punishment allowed under the Manual for Courts-Martial (MCM).

In support of his request, applicant provided an Air Force Form 3070, Record of Nonjudicial Punishment Proceedings, and a copy of the MCM.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 3 Apr 86, and was progressively promoted to the grade of technical sergeant.  On 23 Jul 01, he was notified by his commander of his intent to offer him NJP for allegedly driving while drunk, in violation of Article 111, Uniformed Code of Military Justice.  After consulting with counsel, he waived his right to demand trial by court-martial and accepted NJP proceedings.  On 26 Jul 01, he submitted both oral and written statements in his own behalf to the commander for his consideration.  On 30 Jul 01, the commander concluded the applicant committed the offense alleged and imposed punishment consisting of a reduction in rank to the grade of staff sergeant, restriction to the base for 60 days and 45-days extra duty.  He did not appeal the punishment and the NJP action underwent legal review and was found to be legally sufficient.

The applicant is currently serving on active duty in the grade of technical sergeant.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states, in part, the applicant has not presented any evidence negating his guilt of the underlying offense.  Procedural and substantive requirements having otherwise been met in the NJP action, the application is untimely and his request for equitable relief is without legal or factual justification.  

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, that commander’s discretion is unfettered so long as the commander acts within the limits and parameters of the commander’s legal authority.  Setting aside a punishment in its entirety clears the member’s record of the offense as if the Article 15 had never been initiated  

The applicant’s assertion that restriction and extra duties may not be combined to exceed the maximum punishment imposable for extra duties, in this case 45 days is correct.  He states he served a restriction to the boundaries of the base in excess of 15 days, but provides no evidence to corroborate his assertion.  He does not allege the NJP action was unwarranted or in error.  He only points-out that he was prevented from leaving the boundaries of his base for an additional 15 days.  He was not incarcerated, nor restricted to his dormitory or work station.

Assuming his assertion that he served the entire punishment is true, the error in the punishment imposed by no means voids the merits of the NJP action.  More noteworthy, is the fact that he had the opportunity to appeal the punishment, and after consulting with his defense attorney, he chose not to appeal the improper punishment.  He, in essence, waived his right to complain about an improper punishment when he declined to pursue the very avenue available to him to complain about an excessive or improper punishment.  

To set aside the entire action, six years after the imposition of the NJP, when the applicant did nothing during the NJP process or in the three years after to correct the error, would be the real injustice.  This was his second instance of drunk driving.  The merits of the action are undisputed, and he presents no evidence of error or injustice with regard to his guilt of the offense.

Commanders on the scene have first—hand access to facts and a unique appreciation for the need of morale and discipline in their command that even the best intentioned higher headquarters cannot match.  There is no indication that the commander acted in an arbitrary or capricious manner.  Setting aside the NJP action does not return the applicant back his time lost to restriction, and it does not serve the Air Force’s concern for discipline with respect to drunk driving.  He could have easily resolved this situation by appealing the punishment and pointing out the error to the commander, an option he chose not to pursue, and instead opted to serve the entire punishment.  Justice would not be served by now removing the administrative record reflecting his second instance of drunk driving.

The complete AFLOA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states in part, the advisory opinion paints a negative picture of him by mentioning the Article 15 he received in 1996.  His application addresses the 2001 punishment from the understanding that punishment cannot be based on previous NJP action.  

The punishment in 2001, was offered and accepted with the understanding that acceptance was not an admission of guilt or innocence, but the commander’s decision on how to punish.  He did not appeal the NPJ based on the advice from his area defense counsel, who also was not aware of the injustice.  The fact that he did not appeal does not eliminate the truth that an injustice occurred.  If an injustice was evident at the time he received the Article 15 NJP, he would have addressed the issue at the time of the infraction.  He believes punishment is disproportionate if it is, in the judgment of the reviewer, too severe for the offense committed.  He states he did not dwell on this punishment and has served his country well.  He has completed his Community College of the Air Force Degree and was promoted to technical sergeant again.  

He referenced the MCM and found actions taken against him were unjust and he is not sure why the advisory opinion states the NJP action underwent legal review and was found to be legally sufficient.  It was sufficient but it was inaccurate and it did cause an injustice and infringement of his rights, which is prohibited by the same judicial system. 

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

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.  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, dated 30 Jul 01, was erroneous, or that there was an abuse of discretionary authority.  The Air Force has indicated that the applicant is correct in his assertion that restrictions and extra duties may not be combined to exceed the maximum punishment imposable for extra duties, in this case 45 days.  Assuming he served the entire restriction of 60 days, the punishment imposed does not void the merits of the NJP action.  In view of the above, we are compelled to conclude that the additional 15-day punishment imposed was a harmless error.  After reviewing the evidence of record, we are in complete agreement with the comments of the Air Staff office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

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 AFBCMR Docket Number BC-2007-02217 in Executive Session on 27 September 2007, under the provisions of AFI 36-2603:

			

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Jul 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 17 Aug 07.
    Exhibit D.  Letter, SAF/MRBR, dated 31 Aug 07.
    Exhibit E.  Letter, Applicant, dated 8 Sep 07.