RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02600
		INDEX CODE:  126.03
		COUNSEL:  NOT INDICATED
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The Record of Nonjudicial Punishment, imposed on 4 May 07, pursuant to Article 15, Uniformed Code of Military Justice (UCMJ), be set aside and his rank be restored to senior master sergeant.  In the alternative, the punishment be mitigated to forfeitures and the Article 15 not be filed in his Senior NCO Selection Record.

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APPLICANT CONTENDS THAT:

His commander abused his discretion in imposing the Article 15. His right to counsel was affected, by the denial of his reasonable delay request, which prevented his lawyer from having sufficient time to prepare his case.  Appellate authorities ignored established case laws pertaining to indecent language and illegal orders.

In support of his request, applicant provided a copy of the Article 15, a memorandum concerning a Military Equal Opportunity (MEO) complaint filed against him, a personal statement, an Appellate Authority Memorandum, a Financial Statement, a copy of an Appeal from his attorney to the Appellate Authority, a Request for Delay in Response to the Article 15 Memorandum, 19 Character Statements, a copy of a Congressional Inquiry, and witness statements.

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 3 May 82, for a four-year term, and was progressively promoted to the grade of senior master sergeant (E-8).

On 18 Apr 07, the commander notified the applicant of his intent to initiate nonjudicial punishment pursuant to Article 15 of the UCMJ.  The commander cited the bases for this action were one specification of failure to obey a lawful order and two counts of communicating indecent language.

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 4 May 07, his commander found that he committed the alleged specifications.  On 11 May 07, he acknowledged receipt of the punishment, his right to appeal, and that a copy of the Article 15 would be filed in his Senior Noncommissioned Officer (NCO) Selection Record.

On 16 May 07, the applicant appealed the action to the imposing commander and to the appeal authority.  His appeals were denied.  On 6 Jun 07, the Article 15 action was reviewed for legal sufficiency and found to be legally sufficient.

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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 an error or injustice.  The applicant has not presented evidence of meaningful error or clear injustice in the Article 15 process, and there is no evidence in the record that the commander abused his discretion.

The applicant chose to waive his right to contest the charges at a court-martial at which the charges would have had to have been proven beyond a reasonable doubt in a court of law.  Instead, he chose to accept the Article 15 forum and his commander’s judgment.  As a member accepting nonjudicial punishment proceedings, the applicant had the right to have a hearing with the commander, to request that witnesses appear and testify, and to present evidence.  The applicant availed himself of all his rights.  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.  He exercised his appeal rights, and he presents no evidence that he was denied due process or that the proceedings were unfair.  The punishment involved was well within the commander’s authority to impose and does not appear to be disproportionate or unjust given the applicant’s serious failure to meet the standards of conduct expected of a senior NCO.

The AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSOE defers to the recommendation of AFLOA/JAJM regarding the applicant’s request for setting aside the Article 15 and restoration of rank to the grade of senior master sergeant.  

The AFPC/DPSOE complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 28 Sep 07 and 12 Oct 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.  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 AFBCMR Docket Number BC-2007-02600 in Executive Session on 21 Feb 08, under the provisions of AFI 36-2603:

The following documentary evidence was considered for AFBCMR Docket BC-2007-02600:

    Exhibit A.  DD Form 149, dated 2 Aug 07, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 12 Sep 07.
    Exhibit D.  Letter, AFPC/DPSOE, dated 28 Sep 07.
    Exhibit E.  Letters, SAF/MRBR, dated 12 Oct 07.