RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01514 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) be set aside. 2. He be reinstated to his former grade of master sergeant. ________________________________________________________________ APPLICANT CONTENDS THAT: He did not make false official statements to a senior master sergeant (SMSgt). His military records and signed statements from witnesses prove he was not part of the towing crew when the aircraft was damaged. He was advised by his defense counsel to accept the Article 15, as he would only receive a fine, and that would be the end of the problem; he reluctantly accepted it. When he reviewed his military records, he noticed the false statements made by the SMSgt and towing crew, along with his rebuttal. He was never given a chance to make an official statement to his commander before the Article 15 was given to him. His captain was as shocked as he was when he received the Article 15. This situation has been a total embarrassment to him and his family for many years. In support of his request, the applicant provides a copy of his rebuttal statement to the Article 15 and statements from the towing crew. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 16 November 1965 and was progressively promoted to the grade of master sergeant. The applicant retired on 30 November 1985 in the grade of technical sergeant after serving 20 years and 14 days of total active duty. On 17 June 1985, the applicant was notified by his commander of his intent to impose punishment under Article 15 of the UCMJ. The reason for the action was he made a false official statement concerning who was serving as the towing supervisor during the towing of an aircraft. The applicant acknowledged receipt of the action and waived his right to demand trial by court-martial. On 27 June 1985, the commander found the applicant committed the offense alleged and imposed punishment consisting of a reduction to the grade of technical sergeant with a new date of rank of 27 June 1985. The applicant elected not to appeal the punishment. On 24 October 1985, the Secretary of the Air Force determined the applicant, then a technical sergeant, did not serve satisfactory in any higher grade within the meaning of Title 10, U.S.C., section 8964. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOE defers to the recommendation of AFLOA/JAJM regarding the Article 15 and restoration of the applicant’s former rank of master sergeant. A complete copy of the DPSOE evaluation is at exhibit D. AFLOA/JAJM recommends denial. JAJM states the applicant has not shown a clear error or injustice. Reduction in grade was an authorized punishment. It was deemed by the applicant’s commander to be an appropriate punishment for a false official statement concerning the circumstances surrounding damage to an aircraft. The applicant disputes his commander’s determination of guilt. He asserts the statements by the SMSgt were false and the other witness statement showed he was not a part of the towing crew. He had the opportunity to present extenuating or mitigating evidence to his commander and any other evidence he deemed relevant with advice of his counsel prior to presenting such evidence. The commander acknowledged that he considered all matters presented in defense, mitigation, or extenuation in determining whether an offense occurred and imposing an appropriate punishment. The commander was in the best position to carefully weigh all of the evidence, make informed findings of fact, and arrive at a suitable punishment. If the applicant believed the commander’s decision was in error or unjust, his recourse was to appeal to the next higher commander, when any evidence he may have wished to present would have been fresh. He does not contend that he was prevented from presenting to his immediate or next higher commander any evidence he considered relevant or important in his defense. A complete JAJM evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant contends the reason he did not appeal is that he felt intimidated by the commander and did not want to receive any reprisal for questioning his decision. It was obvious the commander was out to get him. The reason for not appealing the Article 15 before is due to his previous mental state, in which he felt worthless, with lots of anger and mistrust. He suffers from Post-Traumatic Stress Disorder (PTSD) and attends weekly counseling sessions. Now that he feels better, he would like to correct some wrong decisions he made because of anger and mistrust. The applicant’s complete response is at Exhibit F. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or 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 the applicant has not been the victim of an error or injustice. 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. While the applicant alleges his commander was out to get him, the evidence of record reflects 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. Therefore, in the absence of evidence the information used as a basis for the Article 15 was erroneous, or there was an abuse of discretionary authority, we find no 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 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 AFBCMR Docket Number BC-2010-01514 in Executive Session on December 8, 2010, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 24 Apr 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 1 Jun 10. Exhibit D. Letter, AFPC/DPSOE, dated 8 Jul 10. Exhibit E. Letter, SAF/MRBR, dated 30 Jul 10. Exhibit F. Letter, Applicant, 9 Aug 10. Panel Chair