RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-03886
								INDEX CODE:  111.00, 126.04, 
                                               133.03
								COUNSEL:  NO

								HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

The non-judicial punishment (NJP) he received on 24 May 2005 under Article 15, Uniform Code of Military Justice (UCMJ), be set aside, he be reinstated to the grade of technical sergeant (TSgt – E-6) effective 24 May 2005, and that his Enlisted Performance Report (EPR) be upgraded.

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APPLICANT CONTENDS THAT:

The commander was prejudiced against him, the allegations were false, the investigators failed to investigate past and present complaints against his accuser, evidence was not used as provided, the evidence against the accuser was “misplaced or lost on purpose”, and there was coercion.

He was serving in Afghanistan until 7 December 2007.  His new commander fully supports his request.  

In support of his appeal, he has provided copies of a personal statement, a character reference letter from the then- Superintendent, Police Services, his response to the offer of NJP, numerous Statements of Suspect/Witness Complaints, an Incident Report, dated 26 August 2005, a letter from WR-ALC/JA concerning disposal of evidence, his request for suspension of the NJP reduction in rank, a printout of his EPR History, his EPRs closing 5 June 2002, 5 June 2003, 5 June 2004, and 5 June 2005, an AF Form 590, Withdrawal/Reinstatement of Authority to Bear Firearms, a United States Air Force Security Police Report of Investigation, a no contact order, the Record of Non-judicial Punishment Proceedings, a time-line of events, and an undated letter to a major.

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

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STATEMENT OF FACTS:

The applicant is currently serving on active duty with the Regular Air Force (RegAF) in the grade of staff sergeant (SSgt – E-5).  At the time of the incident which resulted in his NJP, he was serving in the grade of TSgt with the 78th Security Forces Squadron, Robins AFB, GA.

On 12 May 2005, the applicant’s commander offered him NJP under Article 15, UCMJ, for disorderly conduct and assault.  After consulting with counsel, he accepted NJP, waived his right to a trial by court-martial and a personal appearance before the commander, and attached a written presentation.  On 24 May 2005, his commander found that he had engaged in disorderly conduct and had assaulted the mother of his daughter by making a stabbing gesture at her head with a dangerous weapon, and reduced him to the grade of SSgt, effective 24 May 2005.  He appealed and submitted matters in writing, and the appeal was denied on 2 June 2005.

The applicant was rendered a referral EPR for the period 6 June 2004 through 5 June 2005.  The EPR was an Annual Report, and was a referral EPR in that it contained a rating to the far left (Unacceptable) in Section III, Evaluation of Performance, for conduct on/off duty, and comments in Section V, Rater’s Comments, pertaining to the assault and NJP.  The remaining performance blocks in Section III are marked to the far right (indicating outstanding performance/exceeding expectations), and the overall rating in Section IV, Promotion Recommendation, was “4” (Ready) by both the rater and additional rater.  The commander concurred with the report as written.  

The applicant’s EPR profile since 1998 follows:

		PERIOD ENDING				EVALUATION

		 26 May 1998					5 (firewall)
		 26 May 1999					5 (firewall)
		 26 May 2000					5 (firewall)
		  5 Jun 2001					5 (firewall)
		  5 Jun 2002					5 (firewall)
		  5 Jun 2003					5 (firewall)
		  5 Jun 2004					5
	*	  5 Jun 2005					4 (referral)
		  5 Jun 2006					5 (firewall)
		  5 Jun 2007					5

*  Contested Report

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of his request as the applicant sets forth no legal basis for relief.  A commander’s action should only be set aside when the evidence demonstrates an error or injustice, and the applicant has not presented evidence of either error or injustice in the Article 15 process.

NJP is permitted by Article 15, UCMJ, and governed by the Manual for Courts-Martial and Air Force Instruction (AFI) 51-202.  The procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  The service member must first be notified by the commander of the nature of the charged offense, the supporting evidence, and of the commander’s intent to impose NJP.  The service member may then consult with defense counsel to determine whether to accept NJP or demand trial by court-martial.  Accepting the proceedings is simply a matter of choice of forum and is not an admission of guilt.  By electing to resolve the allegation in the non-judicial forum, the applicant placed the responsibility for determining his guilt with his commander.

In the case of NJP, 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.

On 9 February 2005, the applicant was involved in a verbal altercation with the mother of their daughter.  On that day, the mother drove with their daughter to his on-base quarters to pick up a punching bag for her son, and a verbal altercation ensued outside his residence.  The applicant had a screwdriver in his hand which he was using to take down the punching bag when she grabbed his puppy which had jumped into her car to see their daughter.  What occurred next is disputed.  According to the applicant, she threatened to throw the puppy and he simply put the screwdriver and pliers into his right hand and attempted to take the puppy from her with his left hand.  According to her, he choked her and threatened her with the screwdriver.

In this case, assault under Article 128 requires only that a person attempts or offers to do bodily harm to another person, or uses threats accompanied by a menacing act or gesture.  There were no witnesses to the incident other than the two involved and their daughter.  After interviewing all three, investigators advised the applicant of his rights and apprehended him for Aggravated Assault, Communicating Threats, and Child Endangerment, and his commander subsequently charged him with disorderly conduct and assault.  The commander could have charged him with three serious charges but instead charged him with two less serious charges.

The applicant’s claims are without merit in that he has presented no evidence of error or injustice during the Article 15 process, and no evidence that his commander was prejudiced against him, the investigation was incomplete, that he did not hold the screwdriver in a menacing manner, evidence was “lost” or misplaced, or of coercion.  

The AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSIDEP recommends denial of relief concerning the EPR unless the Article 15 is set aside.  The appeal process is for the purpose of correcting errors or injustices and as long as the Article 15 exists, the report contains no errors or injustices.

The applicant did not file an appeal with the Evaluation Reports Appeals Board (ERAB); however, this appeal was forwarded to the ERAB for review and they recommended denial because they were not convinced the report was inaccurate since the applicant did, in fact, receive an Article 15 for assault.

The applicant submitted copies of all his previous EPRs which they assume is to show the Board the contested report was outside his character.  However, ratings are not erroneous or unjust because they are inconsistent with other ratings the applicant may have received.  A report evaluates performance during a specific period and reflects the ratee’s performance, conduct, and potential at that time in that position.  He received an Article 15 for assault during the period of the contested report which explains why the EPR is inconsistent with previous EPRs.  Based on the facts of the Article 15, the mark-downs and comments are appropriate, in fact, generous given the circumstances.  Since AFLOA/JAJM recommends the Article 15 should remain in his records, they recommend the EPR also remain in his records as written as it is accurate and appropriate to the circumstances.  If the Board sets aside the Article 15, the EPR should also be set aside.

The AFPC/DPSIDEP evaluation is at Exhibit D.

AFPC/DPSOE recommends denial of all relief requested and defers to the evaluations and recommendations of AFLOA/JAJM and AFPC/DPSIDEP.

The APFC/DPSOE evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded to the applicant on 18 January 2008, for review and comment, within 30 days.  However, as of this date, no response has been received by this office.

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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 his appeal, we do not believe he has suffered from an injustice.  Evidence has not been presented which would lead us to believe that 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 he was entitled.  He was represented by counsel, waived his 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 he 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 his substantial rights were violated during the processing of the Article 15 punishment; or that the punishment exceeded the maximum authorized by the UCMJ.  In view of this finding, and in the absence of evidence the contested EPR is inaccurate as written, we find no basis upon which to warrant its upgrade. 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 Docket Number BC-2007-03886 in Executive Session on 16 April 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Nov 07, w/atchs.
    Exhibit B.  Applicant’s Automated Records Management System
                Extracts.
    Exhibit C.  Letter, AFLOA/JAJM, dated 10 Dec 07.
    Exhibit D.  Letter, AFPC/DPSIDEP, dated 14 Dec 07.
    Exhibit E.  Letter, AFPC/DPSOE, dated 20 Dec 07.
    Exhibit F.  Letter, SAF/MRBR, dated 18 Jan 08.