RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-02704 INDEX CODE:	107.00, 111.01 COUNSEL: NONE

HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
1.	His nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) imposed on 25 January 2007 be set aside and all documentation associated with the punishment be removed.

2.	The "Do Not Promote" (DNP) entered on his Promotion Recommendation Form (PRF) be removed and he receive a Special Selection Board (SSB) for the Calendar Year 2007C Captain Selection Process.

APPLICANT CONTENDS THAT:
The Article 15 proceedings were mishandled and never completed in accordance with pertinent guidance. The PRF was submitted as a DNP with the Article 15 as the only derogatory justification. Meanwhile, a XXXXXXX AFB Inspector General (IG) investigation found that his record did not contain a valid Article 15 and referred him to apply to the Air Force Board for Correction of Military Records (AFBCMR) for relief. He has provided support from his rating chain.

In support of his application, applicant provides a letter from HQ ACC/A6, a letter from the XXXXXXX Air Force Base IG, a citation for the award of the Air Force Achievement Medal, a copy of AF Form 475, Education/Training Report, copies of AF IMT 707B, Company Grade Office Performance Reports, a letter from his commander, a copy of AF IMT 102, Inspector General, Personal and Fraud, Waste and Abuse Complaint Registration and a letter from his commander.

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

The applicant is presently serving on active duty in the grade of first lieutenant.

On 25 January 2006, during a solo flight, the applicant performed dangerous aircraft maneuvers that he was not trained for or authorized to attempt. He made false official statement describing those flight events but omitting any reference to the unauthorized maneuvers which were recorded by the aircraft's performance data system (IDARS).

On 11 December 2006, applicant was notified by his commander of his intent to impose punishment under Article 15 of the UCMJ for dereliction in the performance of his duties, and for making two false statements.

On 21 December 2006, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment. On
25 January 2007, his commander determined the applicant committed the offense alleged, and imposed punishment of forfeiture of
$400.00 pay per month for two months and a reprimand. The applicant appealed the punishment. On 19 March 2007, the appeal authority denied his appeal.

On 15 March 2007, the applicant was eliminated from the Joint Primary Pilot Training for displaying below average military bearing, integrity and professionalism throughout his training.

On 4 April 2007, the commander decided to file the Article 15 proceedings in the applicant's HQ USAF Selection Record and Officer Command Selection Record.

The applicant was rendered a DNP on his PRF for the FY07C captain selection process.

On 10 September 2007, the applicant filed a complaint with the Inspector General (IG), XXXXXXX Air Force Base, ND, alleging that his command completely failed to properly handle his case (See Exhibit C).

On 13 November 2007, the IG notified the applicant of their conclusion that his complaint involved a matter not within the purview of the IG Complaints Resolution System and determined that his concerns would be best handled through the AFBCMR.

AFLOA/JAJM recommends denial and states after reviewing the applicant's material, it is clear that the applicant's issue, essentially, is not with the process but the result. The system depends on the commander collecting the evidence on which to make a reasoned decision to begin the NJP process and the individual, with the aid and advice of his counsel, assisting the commander in making a decision by presenting, if he chooses, evidence in his defense, mitigation or extenuation. There is no evidence that the process did not work properly in this case, other than the applicant's natural disagreement with the result. Not surprisingly, he did not and does not come to the same conclusion reached by the commander and the appeal authority. There was sufficient evidence for the commander to determine the offenses had been committed, despite the applicant's contention that he did not commit the offenses as charged (or more precisely, that because of disorientation and G-stress, he did not then and does not now recall the unauthorized in-flight maneuvering recorded on the flight data system). The applicant's arguments failed to convince either the commander who imposed the punishment or the appellate authority. The commander was in the best position to assess the credibility of the applicant and witnesses, in the context of the scientific, medical, and testimonial evidence presented. Since the commanders' findings are clearly neither arbitrary nor capricious, they should not be disturbed.

AFLOA/JAJM’s complete evaluation is at Exhibit D.
AFPC/DPSIDEP recommends denial and states AFI 36-2406, para 1.3.1., strongly encourages evaluators to comment in performance reports on misconduct that reflects a disregard of civil law or the Uniform Code of Military Justice (UCMJ), or when adverse actions such as an Article 15, Letters of Reprimand, admonishment, or counseling, or placement on the control roster have been taken. The applicant received an Article 15 during the reporting period; thereby making the OPR accurate as written. In addition, the PRF rendered is accurate as written and the request to expunge the report should be denied.

AFPC/DPSIDEP’s complete evaluation is at Exhibit E.
AFPC/DPSOO recommends denial and concurs with the findings of AFLOA/JAJM and AFPC/DPSIDEP.

AFPC/DPSOO's complete evaluation is at Exhibit F.

Copies of the Air Force evaluations were forwarded to the applicant on 24 October 2008 for review and comment within 30 days.  As of this date, this office has received no response.

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. 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. Applicant’s contentions are duly noted; however, in our opinion, the detailed comments provided by the appropriate Air Force offices of primary responsibility adequately address those contentions. 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. The evidence reflects that the commander initiated Article 15 action based on the investigation that underwent a legal review and was found legally sufficient. The Article 15 action was properly accomplished and the applicant was afforded all rights granted by statute and regulation. In our opinion, no evidence has been provided showing to our satisfaction that the investigation was procedurally incorrect, the evidence considered by the investigating officer was erroneous or the investigation was technically flawed. With respect to the contested PRF, we are not persuaded by the evidence provided in support of his appeal that the DNP PRF generated due to the applicant's misconduct is not a true and accurate assessment of his promotion potential during the specified time period in question. Accordingly, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in 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 issues involved. Therefore, the request for a hearing is not favorably considered.

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.

The following members of the Board considered Docket Number BC- 2008-02704 in Executive Session on 25 February 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member
The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-02704:

Exhibit A.	DD Form 149, dated 15 Jul 08, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	IG Report (withdrawn), dated 13 Nov 07. Exhibit D.	Letter, AFLOA/JAJM, dated 12 Sep 08.
Exhibit E.	Letter, AFPC/DPSIDEP, dated 23 Sep 08. Exhibit F.	Letter, AFPC/DPSOO, dated 6 Oct 08.
Exhibit G.	Letter, SAF/MRBR, dated 24 Oct 08.