RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-02716 INDEX CODE: 111.05, 126.00, 131.00 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: Removal of all unfavorable information in his records concerning an Article 15, Record of Nonjudicial Punishment, dated 21 Nov 03, to include the Article 15 and all supporting documentation. The applicant initially asked that his referral officer performance report (OPR) covering the period 18 Mar 03 to 17 Mar 04 be removed but amended his DD Form 149 to request the referral report be substituted, vice removed, with a corrected copy from his rating chain. He be considered for promotion to the grade of major by the CY06B (11 Sep 06) (P0406B) Major Central Selection Board (CSB). ________________________________________________________________ APPLICANT CONTENDS THAT: After the AFRL/CC reviewed the facts and extenuating circumstances of his case, he believed the charges against him were unsubstantiated based on questionable evidence and the nonstandard manner in which that evidence was obtained. AFRL/CC acquitted him of the charges and ordered the Article 15 and Unfavorable Information File (UIF) to be removed early from his officer selection record (OSR) and command selection record (CSR). Since the charges were the basis for his referral report and he has been acquitted of the charges, the Article 15, supporting paperwork, and OPR should have also been removed from all permanent records. The Board should find it in the interest of justice to consider his application because it is safe to assume that the referral OPR caused him to be passed over for promotion to major. In addition, the fact that his original rating chain agreed to change the OPR should also be considered as supporting evidence for his request. In support of his request, the applicant provided a signed corrected OPR from his original rating chain, support letters, statements in his own behalf, and extracts of his personnel records. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of captain. On 4 Nov 03, AFRL/CC initiated Article 15 actions against the applicant. The applicant was charged with driving under the influence (DUI) of alcohol. On 7 Nov 03, the applicant waived his right to trial by court- martial, submitted matters in writing, and requested a personal appearance. On 17 Nov 03, the applicant was found guilty and ordered to forfeit $1,000 per month for two months, of which $500 per month was suspended until 17 May 03, after which time it was to be remitted without further action, unless sooner vacated. Additionally, he received a reprimand with the Article 15. The nonjudicial punishment action and punishment underwent legal review and were found to be legally sufficient. On 21 Nov 03, the applicant was advised the Article 15 was going to be placed in his OSR and CSR. On 3 Jun 05, AFRL/CC wrote a memorandum requesting that the Article 15 and UIF be removed from the applicant’s OSR and CSR early. On 24 Aug 07, the then AFRL/CC submitted a letter to the AFBCMR stating that the intent of his 3 Jun 05 memorandum was to have the applicant’s records purged of all information regarding his DUI situation, to include the referral report. The applicant was nonselected for promotion to major by the P0406B Major CSB. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. The application is not timely. The only justification for consideration of the untimely application offered is that the referral OPR caused the applicant to be passed over for promotion to major. This is not sufficient justification. There is no evidence that the commander acted in an arbitrary or capricious manner in imposing the Article 15. The applicant provides no evidence of clear error or injustice in the Article 15 process. Procedural and substantive requirements were met in the Article 15 action. The letter dated 24 Aug 07 from BG (retired) “L” states, when referring his action of 3 Jun 05 that it was his intent at the time that the applicant’s records be purged of all information regarding the situation. He then makes the references to the Manual for Court-Martial description of set aside. Yet, he still does not say it was his intent to set aside the nonjudicial punishment action or acquit the applicant. There is no clear evidence that a set aside was intended. In addition, there is no mention of returning the forfeiture of pay to the applicant. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSIDEP recommends denial. The applicant seems to be under the mistaken impression that his UIF and Article 15 punishment were set aside. Unfortunately however, the action was not set aside but removed early from his records, (before the scheduled expiration date, which is at the discretion of the commander). Based on that information alone, the report is not inaccurate as written. He still received an Article 15 for DWI. That fact did not change, thereby making the contested report accurate as written. The complete AFPC/DPSIDEP evaluation is at Exhibit D. AFPC/DPSOO recommends denial of the request. DPSOO states that their evaluation of this request requires them to rely on the opinions of other Air Force experts. As such, based on AFLOA/JAJM’s and AFPC/DPSIDEP’s recommendation, they recommend denial of the applicant’s request for supplemental selection board consideration. The complete AFPC/DPSOO evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant acknowledges he is responsible for the initial actions that led to his complicated situation. He states that, “However, the punitive impact is unusual enough that Gen “L” (retired) made a concerted effort to undo what was perceived to be an impact disproportionate to the event. General L’s efforts unfortunately did not yield the desired results.” The applicant attached a letter from a retired Navy captain explaining the circumstances of the applicant’s case and recommended the applicant’s appeal be granted. The applicant requests that his case be expedited due to his impending mandatory separation date of 31 May 08 (due to being passed over for promotion a second time). The applicant’s complete response, with attachment, is at Exhibit G. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After reviewing the evidence of record, we are persuaded that favorable consideration of the applicant’s request is warranted. In this respect, given the unequivocal support from senior Air Force and Navy officers who were in positions to directly observe his performance, and having no basis to question their integrity, we believe that it was the intent of his former commander to have the applicant’s records purged of all information regarding the Article 15 and referral OPR. Therefore, we recommend that his records be corrected to the extent indicated below. ________________________________________________________________ _ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. The nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, initiated on 4 November 2003 and imposed on 17 November 2003, be, and hereby is, declared void and expunged from his records, and all rights, privileges and property of which he may have been deprived of be restored. b. The AF Form 707B, Company Grade Officer Performance Report (OPR), rendered for the period 18 March 2003 through 17 March 2004, be and hereby is, declared void and removed from his records. c. The attached AF Form 707A, Company Grade Officer Performance Report (OPR), rendered for the period 18 March 2003 through 17 March 2004, reflecting in Section VI, second to last line “Flight Director......space flight missions” be accepted for file in its proper sequence. It is further directed that he be considered for promotion to the grade of major by a Special Selection Board for the CY06B Major Central Selection Board and for any subsequent boards in which the above corrections were not a matter of record. The following members of the Board considered Docket Number BC- 2007-02716 in Executive Session on 24 January 2008, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, w/atchs, dated 24 Aug 07. Exhibit B. Applicant's Master Personnel Records. Exhibit C. AFLOA/JAJM Memorandum, dated 12 Oct 07. Exhibit D. AFPC/DPSIDEP Memorandum, dated 13 Nov 07. Exhibit E. AFPC/DPSOO Memorandum, dated 4 Dec 07. Exhibit F. SAF/MRBR Letter, 14 Dec 07. Exhibit G. Applicant’s Rebuttal, w/atch, dated 10 Jan 08. AFBCMR BC-2007-02716 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that: The pertinent military records of the Department of the Air Force relating to XXXXXXXXXXX, be corrected to show that: a. The nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, initiated on 4 November 2003 and imposed on 17 November 2003, be, and hereby is, declared void and expunged from his records, and all rights, privileges and property of which he may have been deprived be restored. b. The AF Form 707B, Company Grade Officer Performance Report (OPR), rendered for the period 18 March 2003 through 17 March 2004, be and hereby is, declared void and removed from his records. c. The attached AF Form 707B, Company Grade Officer Performance Report (OPR), rendered for the period 18 March 2003 through 17 March 2004, reflecting in Section VI, second to last line “Flight Director……space flight missions” be accepted for file in its proper sequence. It is further directed that he be considered for promotion to the grade of major by a Special Selection Board for the CY06B Major Central Selection Board and for any subsequent boards in which the above corrections were not a matter of record. Attachment: OPR closing 17 March 2004