RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-01704
		INDEX CODE:  111.01
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Article 15 (nonjudicial punishment) be set aside and removed from his records.

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APPLICANT CONTENDS THAT:

The applicant's former group commander (GP/CC) provided a statement on behalf of the applicant in which he states he was informed of potential gambling activities within the unit.  The GP/CC verbally reprimanded him and directed he cease card playing activities from that point on.  

On or about 12 April 2005, the WG/CC directed a formal investigation that revealed the applicant was derelict in the performance of his duties.  As a result, the GP/CC administered an Article 15.

The GP/CC states new evidence has surfaced making him question the validity of the testimony and the accurateness of the punishment he imposed.  He now believes the punishment he administered was not appropriate for the infraction.  

In support of his request, applicant provided statements from his GP/CC, section chief and an eyewitness. 

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently serving in the Air Force in the grade of TSgt having assumed that grade effective and with a date of rank (DOR) of 1 November 2004. 

The applicant was offered nonjudicial punishment on 25 April 2005 while deployed to Afghanistan, for gambling and failing to be available for expediter and fire guard duties.  

On 28 April 2005, after consulting with counsel, he waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He chose to make a personal appearance before his commander and submitted a written presentation.  

On 30 April 2005, his commander determined that he committed the alleged offenses and imposed punishment consisting of reduction to the grade of staff sergeant (which was suspended for six months) and forfeiture of $100 pay per month for two months (suspended for six months).  He did not appeal and the nonjudicial punishment proceedings were found legally sufficient.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states actual unlawful command influence (UCI) does not appear to be a factor in this case.  Apparent UCI occurs when a reasonable member of the public, if aware of all the facts, would have a loss of confidence in the military justice system and believes it to be unfair.  Although the WG/CC never explicitly stated the result he expected.  The GP/CC perceived the WG/CC did in fact expect certain results.  The GP/CC alleges when he questioned the judge advocate who was advising him on the case, the judge advocate stated the WG/CC's concern was boarder line inappropriate, but was done to protect him from allegations of favoritism.  The GP/CC mentions that both he and the applicant are African American making the disturbing implication that race may have played a factor in the imposition of nonjudicial punishment.  Whether the WG/CC waded into the dark waters of apparent UCI is challenging to resolve.  The GP/CC perceived what he terms as "undue commander pressure" but whether these pressures actually existed is not entirely clear.  On one hand the GP/CC states he imposed nonjudicial punishment to punish and protect the applicant, but on the other hand felt this action was done to satisfy the commander.  Undoubtedly, the GP/CC believes the applicant committed the offenses on the Article 15, but expressed his concerns the Article 15 has affected the applicant’s career tremendously.  The applicant raises the specter of UCI that warrants attention and consideration by the Board.  However, despite the imposing commander’s request relating to the applicant's nonjudicial punishment, JAJM is unable to recommend the Board grant the request.  

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 20 June 2008 for review and response.  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 an error or injustice.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, we do not believe he has suffered an injustice.  His contentions as well as those of his former commander are duly noted; however, we do not find these assertions or his former commander's allusion to undue command influence, sufficiently persuasive to warrant removal of the Article 15 from his records.  After our review of the evidence of record we find no evidence that would lead us to believe that the Article 15 was improperly administered or that the applicant's substantial rights were violated during the processing of the Article 15 action.  The punishment imposed was within legal limits, appropriate to the offense, and does not appear unjust or disproportionate.  Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD RECOMMENDS THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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-2008-01704 in Executive Session on 28 August 2008 under the provisions of AFI 36-2603:

			XXXXXXXXXXXXXXXXXXXXX., Panel Chair
			XXXXXXXXXXXXXXXXXXXXX, Member
XXXXXXXXXXXXXXXXXXXXX, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-01704 was considered:

    Exhibit A.  DD Form 149, dated 29 April 2008, w/atchs.
    Exhibit B.  Available Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 16 June 2008.
    Exhibit D.  Letter, SAF/MRBR, dated 20 June 2008.

                                   XXXXXXXXXXXXXXXXXXXXX
                                   Panel Chair