RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: BC-2008-03613 INDEX CODE: 126.04 XXXXXXXXXXXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Article 15, Uniform Code of Military Justice (UCMJ), action imposed on 30 May 2007, be removed from his official military personnel record. _________________________________________________________________ APPLICANT CONTENDS THAT: An investigation cleared him of any wrong doing which resulted in the Article 15 being remitted. In support of his appeal, the applicant provides a copy of the contested Article 15. The applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: According to the military personnel data system, the applicant is currently serving on active duty in the grade of staff sergeant with a date of rank of 1 November 2002. He has a Total Active Federal Military Service Date of 25 March 1998 and a projected date of separation of 14 October 2013. On or about 15 May 2007, the applicant was alleged to have violated a lawful general order while deployed to Kuwait by wrongfully visiting the sleeping quarters of an Air Force member of the opposite sex. For this action he received nonjudicial punishment under Article 15, UCMJ, dated 30 May 2007, consisting of a reduction to the grade of senior airman. On 4 August 2007, the applicant’s commander suspended the reduction to senior airman. The suspension was to be remitted without further action on 31 December 2007, if the suspension was not vacated beforehand. After the applicant returned from his deployment, his home base commander remitted the suspension of the punishment early – on 9 October 2007. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denying the applicant’s request for removal of his Article 15 punishment dated 30 May 2007. JAJM states that an examination of the applicant’s Article 15 and supplementary actions indicates that he was afforded all his procedural rights during all of the proceedings. He exercised his rights in the Article 15 action by requesting both a personal hearing before the commander and providing a written response. As required by Air Force Instruction 51-202, the Article 15 underwent a legal review at two different levels and was found to be legally sufficient. The two supplementary actions were to the applicant’s benefit. The first essentially returned him to the grade of staff sergeant with his original date of rank and a five month probationary period. The second supplementary action served to end the probationary period early – on 9 October 2007, rather than 31 December 2007. Only a set-aside of his punishment would allow for the entire Article 15 action to be voided. However, the applicant’s punishment was instead remitted, which means that the unexecuted part of his suspended punishment was cancelled. This does not call for the removal of his Article 15 action from his personnel records. The applicant contends that an investigation cleared him of any wrongdoing; however neither his personnel records nor the Automated Military Justice Analysis and Management System includes any information from which one could conclude that he had been cleared of any wrongdoing. To the contrary, the fact the Article 15 and supplementary actions were processed and found legally sufficient shows that the commander concluded the applicant did commit the offense, but that the punishment was modified after observation of the applicant’s subsequent behavior. For this reason, it is JAJM’s opinion that clemency is inappropriate in this case. The AFLOA/JAJM evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 31 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 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 opinion and recommendation of the Air Force office of primary responsibility and adopt its 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. _________________________________________________________________ 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 17 December 2008, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-03613: Exhibit A. DD Form 149, dated 26 Sep 08, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 22 Oct 08. Exhibit C. Letter, SAF/MRBR, dated 31 Oct 08.