RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
 
IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03290
		INDEX CODE:  126.03
		COUNSEL:  
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  The Record of Nonjudicial Punishment, imposed on 19 Dec 05, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), be removed from her record and her rank of master sergeant be restored.

2.  The decision to deny her advancement to the highest grade held on the Retired List at 30 years be overturned.

3.  She be granted any and all other relief the Board deems necessary in the interest of justice.

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APPLICANT CONTENDS THAT:

She did not commit the offense, and the evidence used to support the guilty finding is false.  The evidence used to support a finding of not guilty was submitted and inappropriately dismissed by the commander imposing the punishment.  Her husband used her email account to send the email containing controlled test material without her knowledge.

In support of her request, applicant provided a statement from her attorney, AF Form 3070, Record of Nonjudicial Punishment Proceedings, excerpts from her military personnel records, a copy of Rights Advisement Letter from her husband, a Memorandum for Record, dated 10 Aug 05, and two character statements.

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

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STATEMENT OF FACTS:

The applicant contracted her initial enlistment in the Regular Air Force on 14 Sep 83, for a four-year term, and was progressively promoted to the grade of master sergeant (E-7).  On 28 Nov 05, the commander notified the applicant of her intent to initiate nonjudicial punishment pursuant to Article 15 of the UCMJ.  The commander cited the basis for this action was one specification of failure to obey a lawful general regulation, by wrongfully distributing and/or communicating the contents of controlled test material to another active duty master sergeant.

She consulted with counsel, waived her right to demand trial by court-martial, accepted the Article 15 and submitted written statements in her own behalf.  On 14 Dec 05, her commander found that she committed the alleged specification.  She acknowledged receipt of the punishment, her right to appeal and the senior selection record notification on that same day.

She appealed the action, first to the imposing commander and then to the appellate authority. Both appeals were denied. On 19 Jan 06, the Article 15 action was found legally sufficient.  On 31 Mar 06, the Secretary of the Air Force Personnel Counsel determined she did not serve honorably in the grade of master sergeant and should not be granted highest grade held at the 30 year point.

On 1 May 06, the applicant retired from the Air Force in the grade of technical sergeant.  She served a total of 22 years, 8 months and 26 days active duty service.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial and states, in part, the applicant should not prevail absent clear error or injustice.  The materials and arguments she now presents to the Board fall far short of demonstrating clear error or injustice.  At best these materials provide limited, general indications of discussions between her husband and his defense counsel, both of whom are absent third parties about the email in question.  

The applicant asserts that evidence to support a finding of not guilty was submitted, but contends that it was inappropriately dismissed by her commander.  She does not claim that she was prevented from submitting evidence during the initial proceedings or on appeal, only that she feels the evidence she submitted was dismissed.  She also asserts that evidence used to support the findings of guilty is false, but does not identify the evidence she believes is false or explain why she believes it is false.  Her commander was charged with weighing all the evidence before her, and ultimately resolved the alleged violations of Article 92 against the applicant.  There is no evidence that the commander’s decision was arbitrary or capricious, or that the commander’s 
determination of her culpability was based on anything other than the evidence. Her application does not provide a sufficient basis to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.

The AFLOA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The advisory opinion fails to acknowledge the true nature of the situation and what she is due.  Accepting nonjudicial punishment proceedings, rather than demanding trial by court-martial, is a choice of forum, not an admission of guilt.  Nonjudicial punishment does not constitute a criminal conviction, yet the advisory opinion ignores any and all admissions made by individuals to assert her innocence in the matter.  It is the duty of the Board to see that justice is served to those who have suffered injustice.  The Board has more than enough substantial reason to grant the relief requested.  

Considering this matter took place through electronic mail, the only individuals that can attest to the facts of this matter are those involved.  The only evidence involved is a single email that was sent from her account.  However, there is substantial evidence that has been submitted to the Board that shows that it was not the applicant, but rather her husband, who distributed the email.  Such evidence is sufficient to demonstrate a clear injustice in this matter.

Her record is impeccable, with exemplary marks of an outstanding noncommissioned officer.  The Board should not ignore the years of dedication that she has contributed to the Air Force.

The applicant’s complete response is at Exhibit E.

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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 probable error or injustice.  We find no evidence of error in this case and after thoroughly 
reviewing the documentation applicant submitted in support of her appeal, we do not believe she has suffered from an injustice.  Evidence has not been presented which would lead us to believe the nonjudicial punishment was improper.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence indicates that, during the processing of this Article 15 action, the applicant was offered every right to which she was entitled.  She was represented by counsel, waived her right to demand trial by court-martial, and submitted written matters for review by the imposing commander.  After considering the matters raised by the applicant, the commander determined that she had committed "one or more of the offenses alleged" and imposed punishment.  The applicant has not provided any evidence showing the imposing commander or the reviewing authority abused their discretionary authority; that her substantial rights were violated during the processing of the Article 15 punishment; or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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 issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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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-2007-03290 in Executive Session on 26 Mar 08, under the provisions of AFI 36-2603:

The following documentary evidence was considered for AFBCMR Docket BC-2007-03290:

    Exhibit A.  DD Form 149, w/atchs, dated 22 Jan 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 30 Nov 07.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Dec 07.
    Exhibit E.  Counsel, dated 11 Jan 08.