RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBERS:	BC-2008-02706 INDEX CODE:	126.04
XXXXXXXXXXXXXXXX	COUNSEL: NONE
HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
His rank and grade in blocks 4a and 4b on his DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect SSgt and E5 respectively.

APPLICANT CONTENDS THAT:
The Article 15 he received was unjust because of command influence, personality conflicts, improper counseling, and failure to properly investigate the incident in question.

In support of his appeal, the applicant provides copies of his DD Form 214; a personal memorandum he wrote in January 2007 as a Congressional Inquiry; AF Form 3827, Terminal Attack Control Evaluation and Certification; DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Force of the United States; and Department of Veterans Affairs transmittal documents.

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

STATEMENT OF FACTS:
On 18 June 1997, the applicant enlisted in the Regular Air Force at the age of 22 in the grade of airman first class (E-3). He was progressively promoted to the rank of staff sergeant (E-5) effective and with a date of rank of 1 February 2002.

From 20 December 2005 to 12 January 2006, the applicant was in the process of a permanent change of station (PCS) move from Germany to Fort Riley, Kansas. Part of his Joint Terminal Attack Controller records, specifically the AF Form 3287, went missing during the PCS move. In addition, his Close Air Support Control Log was altered. Following an investigation and based on the evidence, his commander offered the applicant nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for one specification of willfully and unlawfully removing a public record and one specification of willfully and

unlawfully altering a public record, both in violation of Article 134, UCMJ. On 25 April 2006, after consulting with a military defense attorney, the applicant waived his right to demand a trial by court-martial and accepted NJP proceedings.  He presented matters in his defense in a written statement, and made a personal appearance before the commander. After weighing the evidence, as well as the matters presented by the applicant, the commander found the applicant guilty of the offenses charged. The commander imposed punishment in the form of a reduction in rank to senior airman (E-4) with a new date of rank of 1 May 2006 and a reprimand. On 8 May 2006, the applicant made a timely appeal, and on 17 May 2006 the appeal was denied.

The applicant was honorably discharged from active duty, in the grade of senior airman, effective 17 June 2007 for completion of required active service after serving 10 years on active duty. His reentry code is “4D,” which indicates that he was not allowed to extend his enlistment or reenlist at the time of his separation.

AIR FORCE EVALUATION:
AFLOA/JAJM recommends denying the applicant’s request. JAJM states that despite the applicant’s contentions that he did not commit the offenses, he has not offered any evidence that persuasively suggests he may have been punished for an offense he did not commit. By electing to resolve the allegation in the nonjudicial forum, the applicant placed the responsibility to decide whether he had committed the offenses with his commander. The commander had to weigh all the evidence, including the credibility of the various witnesses, and make his decision. The commander ultimately resolved the issue of whether the applicant had committed the offenses against him. The punishment received was well within the commander’s authority to impose.

JAJM states that after reviewing the applicant’s submission, it is clear his issue is not with the process but with the result. The system depends on the commander amassing 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 the decision by presenting evidence in 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 and his counsel did not and do not come to the same conclusions reached by the commander and the appeal authority. Applicant’s arguments failed to convince either the commander who imposed punishment or the appellate authority. While a different fact finder may have come to a different conclusion, the commanders’ findings are neither arbitrary nor capricious and should not be disturbed. For reasons set forth, the applicant’s request is without basis. He should not prevail here absent clear error or injustice.

The AFLOA/JAJM evaluation is at Exhibit C.
AFPC/DPSOE defers to the recommendation of AFLOA/JAJM. The DPSOE evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 3 October 2008, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days (Exhibit E). 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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered.

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.

The following members of the Board considered this application in Executive Session on 20 November 2008, under the provisions of AFI 36-2603:

Chair
 Member 
Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-02706:

Exhibit A.	DD Form 149, dated 11 Jul 08, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Letter, AFLOA/JAJM, dated 27 Aug 08.
Exhibit D.	Letter, AFPC/DPSOE, dated 23 Sep 08. Exhibit E.	Letter, SAF/MRBR, dated 3 Oct 08.