RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02759
		INDEX CODES:  111.02, 126.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 imposed on 15 Dec 05 be set aside and removed from her records.

Her Enlisted Performance Report (EPR) rendered for the period 15 Jun 04 through 14 Feb 06 be declared void and removed from her records.

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APPLICANT CONTENDS THAT:

She unjustly received the Article 15 for driving under the influence (DUI) of alcohol.  However, she was not driving the night of the incident.

The referral EPR she received was based on the Article 15 punishment.

In support of her appeal, the applicant provides an expanded statement, supportive statements, copies of the Article 15 and EPR, and other documents associated with the matter under review.

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

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates the applicant is currently serving on active duty in the grade of airman first class, with a date of rank (DOR) of 15 Oct 06.  Her Total Active Federal Military Service Date (TAFMSD) is 15 Jun 04.

Applicant's EPR profile follows: 

     PERIOD ENDING                            EVALUATION 

  *	14 Feb 06		  3 (referral)
	10 Oct 06	   5

* Contested report.

On 5 Dec 05, she received nonjudicial punishment under Article 15 for operating a vehicle (passenger car) on 11 Nov 05 while the alcohol concentration in her breath was 0.11 grams of alcohol per 210 liters of breath as shown by chemical analysis.  She was reduced from the grade of airman first class to airman basic and was ordered to forfeit $250.00 per month for two months, which was suspended until 14 Jun 06, after which it was remitted.  In addition, she was restricted to the base for 30 days and ordered to perform 30 days of extra duty.  She did not appeal.  On 20 Dec 05, legal authority found that the Article 15 proceedings were legally sufficient.

On 17 Mar 06, the applicant, through counsel, requested a set aside of the nonjudicial punishment as a result of a new statement from a witness.  Since it appeared there was no action taken on the request, another one was offered on 19 Apr 06.  On 8 May 06, the commander determined there was not clear and convincing evidence that would cause him to set aside the punishment.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating the applicant provides no evidence of clear error or injustice in the Article 15 process.  When evidence of an error or injustice is missing, it is clear that the Air Force Board for Correction of Military Records (AFBCMR) process is not intended to simply second guess the appropriateness of the judgments of field commanders.  In the case of nonjudicial punishment, 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. 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSIDEP recommends denial indicating they accept the advisory opinion from AFLOA/JAJM regarding the Article 15.  Since it is AFLOA/JAJM’s position the Article 15 should remain in the applicant’s records, they believe the contested report is an accurate assessment of her performance and should also remain in her records.

A complete copy of the AFPC/DPSIDEP evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicates she does not deny she was intoxicated when she was approached by security personnel.  However, she never had the keys to her vehicle nor was she driving the night of the incident.  She understands the commander’s discretionary authority.  However, because of the number of individuals charged with DUIs, she believes her punishment was used as an example by the commander that DUIs would not be tolerated.  She requests the Board review the evidence presented to determine the justice of her Article 15 punishment. She particularly wants the Board to review the statement from the individual who has admitted to driving the vehicle.

Applicant’s complete response is at Exhibit F.

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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 her contentions were duly noted.  However, we do not find her assertions or the documentation presented in support of her appeal sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs).  The evidence of record indicates the applicant's commander determined that she had committed the alleged offense of driving under the influence of alcohol, resulting in her nonjudicial punishment under Article 15.  Although she subsequently requested a set aside of the punishment based on new evidence, the commander did not find it sufficient to set aside the Article 15.  We are not inclined to disturb the discretionary judgments of commanding officers, who are closer to events, absent a strong showing of abuse of that authority.  Also, in light of our conclusion that the Article 15 should not be removed, we find no evidence which would lead us to believe the applicant’s EPR closing 14 Feb 06 was an inaccurate depiction of her performance at the time it was rendered.  In view of the foregoing, and in the absence of sufficient 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-2007-02759 in Executive Session on 21 Feb 08, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Aug 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 12 Oct 07.
    Exhibit D.  Letter, AFPC/DPSIDEP, dated 16 Nov 07.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Dec 07.
    Exhibit F.  Letter, applicant, dated 8 Jan 08.