RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00654 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: The Article 15 punishment imposed on 18 Aug 09, be set aside, and all money and rank taken from him as a result, be restored. _________________________________________________________________ APPLICANT CONTENDS THAT: He has an “erroneous” Article 15 in his records and his command will not correct it. He was found not guilty at a court-martial for the same offense for which his commander had previously imposed nonjudicial punishment (NJP). On 10 Jun 09, his commander issued a no-contact order that prohibited him from having contact with a certain female master sergeant because of “allegations of inappropriate conduct.” On 18 Aug 09, he received an Article 15 for violating a “no- contact order.” On 3 Sep 09, his commander vacated the suspended portion of his Article 15, and issued another no-contact order – even though he was legally separated from his wife and, despite the fact that on 18 Aug 09 (the same date of his Article 15), the Investigating Officer (IO) concluded “the allegation that MSgt X. was engaged in an inappropriate relationship with MSgt X. [is] unsubstantiated.” His commander was well aware (while he was not) that his wife had installed spyware on his computer and was monitoring/intercepting his private communications. The commander was also aware he had filed for divorce and was legally separated from his wife, and had been for months. The commander continued to issue the no-contact orders, and took away his beret, his gun, and put him on the “Relieved of Duty” squad. In Nov 09, he was offered an Article 15, which he refused, and his command took the usual step of charging him not merely for the Nov allegation, but also for the previous incidents for which he had already received Article 15 punishment. He was also charged with adultery. A court-martial acquitted him of all charges and specifications. This included the specification for violating the no-contact order for which he had previously been punished pursuant to Article 15. He was subsequently prosecuted, and then acquitted, for the exact same offenses for which he previously received an Article 15 – and thus did not get the credit he was entitled to under US v. Pierce because there is no sentencing proceeding. The Article 15 should be rescinded and removed from his records, for the reasons below: -An Article 15 and Courts-Martial are both a part of the same process: Article 15 and court-martial proceedings are not entirely separate and distinct processes; both are governed by the Uniform Code of Military Justice (UCMJ). -The validity of the numerous no-contact orders. There were many different orders issued, some clearly were not legal and the government conceded such at trial, some had to be re-issued because the first ones were illegal and the Command, after consulting with the legal office, attempted to correct the previous deficiencies. The ultimate result was he was acquitted of violating the orders. Even if the Board finds no legal grounds to accord relief, he should be restored to his proper rank based upon the inequities involved. In support of his request, the applicant provides an 11-page Brief of Counsel, with nine enclosures, his Divorce Petition, Excerpted results from the CDI, Interrogatory Responses, a Charge Sheet, Article 15 documents, Excerpts from the Record of Trial, Excerpted trial testimony, Article 32 testimony, and Article 15 Set Aside request. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of technical sergeant. On 6 Aug 09, the applicant’s commander offered the applicant, then a master sergeant (E-7), NJP under Article 15 of the UCMJ for violations of Article 92, for failure to obey a lawful no- contact order. The order stated the applicant should not have contact with a certain female master sergeant. The commander issued the order on 9 Jun 09. The applicant was alleged to have had contact with the female master sergeant on or about 10 Jul 09. After consulting with counsel, the applicant accepted the Article 15 proceedings and waived his right to demand trial by court-martial. He presented written matters to the commander, but did not request a personal appearance. On 18 Aug 09, the commander found the applicant committed the alleged offense and imposed punishment consisting of a suspended reduction to the grade of technical sergeant (E-6), 30 days extra duty and forfeiture of $1,661.00 pay per month for two months. Part of the extra duty and forfeitures were also suspended. The applicant did not appeal the commander’s decision and a legal review of the Article 15 determined it was legally sufficient. The applicant was subsequently alleged to have had contact with the female master sergeant again on 19 Aug 09, in violation of the commander’s 9 Jun 09 no-contact order. On 3 Sep 09, the applicant’s commander notified the applicant that he intended to vacate the suspended portions of the punishment from the 18 Aug 09 Article 15 action. On 3 Sep 09, the applicant’s commander issued another no-contact order. On 17 Sep 09, the commander found the applicant committed the offense, which resulted in vacation of the suspended punishment – 15 days extra duty, $831.00 pay per month for two months, and reduction to the grade of technical sergeant. On 12 Oct 09, the applicant was alleged to have had contact with the female master sergeant. Based on this allegation, the applicant’s commander offered the applicant NJP again. The applicant declined the NJP and demanded trial by court-martial in lieu of NJP. On 17 Dec 09, the applicant’s commander preferred court-martial charges against the applicant. He was charged with two specifications of willfully disobeying the lawful order of a superior commissioned officer, in violation of Article 90, UCMJ; and one specification of adultery, in violation of Article 134, UCMJ. The first violation of Article 90 alleged that the applicant had received a lawful command from his commander not to have contact with the female master sergeant and that the applicant had contact with the master sergeant on multiple occasions between on or about (o/a) 9 Jun 09 and o/a 9 Jul 09. The second violation of Article 90 alleged the applicant had received a lawful command from his commander not to have contact with the female master sergeant and that the applicant had contact with the master sergeant on multiple occasions between o/a 11 Jul 09 and o/a 1 Dec 09. The charges and specifications were referred to a special court-martial on 18 Sec 09. On 23 Mar 10, a panel of officer and enlisted members found the applicant not guilty of all charges and specifications. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force at Exhibit B and C. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of applicant’s request to remove the Article 15 from his records. The applicant has not shown a clear error or injustice. The applicant’s main issue raised is the objectionable nature of him being found not guilty at the court-martial for the same offense for which his commander had previously imposed NJP. The applicant sites U.S vs. Gammons, which says that NJP is not intended to be “criminal” in nature and, therefore, a prior Article 15 is not a complete bar to later prosecution. The answer to this problem from the Gammons Court, relying on a prior decision, U.S. v. Pierce, is that the accused has the ability in the presentencing phase of a court-martial to use the fact of previous NJP to argue for a lesser sentence at the court-martial. As the applicant points out, though, the applicant did not get that opportunity in this case. Since he was acquitted of all charges and specifications, the case did not go into the presentencing phase. The applicant argues the appropriate remedy for this inequity is for the Board to remove the Article 15. The applicant contends he was charged with the same offense on the Article 15 action and at the court-martial. Since he was found not guilty of one of the like offenses at trial, at least equity requires the Board set aside the Article 15 for the other like offense. This argument, though, depends on finding that the offenses are indeed the same. There are slight differences between the specifications included in the court-martial charges and the specifications and those included in the Aug 09 Article 15 action and the Sep 09 action which vacated the suspended punishments. The court-martial charges were violations of Article 90 – Willfully Disobeying a Superior Commissioned Officer. The charges for the Article 15 and vacation action were violations of Article 92 – Failure to Obey a Lawful Order or Regulation. There is little difference between these charges, though, since a violation of Article 92 is a lesser included offense of a violation of Article 90. The bigger issue for comparing the charges is the difference in the dates. The court-martial charges covered time frames “between o/a 9 Jun 09 and o/a 9 Jul 09” and “between o/a 11 Jul 09 and o/a 1 Dec 09.” The Article 15 covered “o/a 10 Jul 09” and the vacation action covered “o/a 19 Aug 09.” While the date charged for vacation action is covered by one of the charged time periods from the court-martial charges, the date charged on the Article 15 falls exactly between the two time periods included in the court-martial charges. If the Board finds the Article 15 and court-martial charges covered the same period, then it can exercise its power of clemency and grant the applicant’s request. On the other hand, it is important to point out the applicant’s allegation of error or injustice in the Article 15 from Aug 2009 relies on the findings of the court-martial which took place about seven months later. As the applicant points out, there is no evidence of the 5th Amendment’s prohibition against double jeopardy inherent in being convicted at court-martial for the same thing that was addressed by an Article 15. The fact that the Article 15 and the court-martial charges cover the same offense and same time period does not require action by the Board. The applicant and his defense counsel had the benefit of knowing what evidence the commander was considering and also had the opportunity to provide the commander additional information about the offense. The commander evaluated the evidence and determined the applicant had committed the offense. The commander’s decision, considering what he knew at the time, was not arbitrary or capricious and the applicant’s rights were observed throughout the process. Furthermore, just because a different finder of fact seven months after the original Article 15 was completed could come to a different conclusion than the commander does not mean the original Article 15 was in error or represented an injustice at the time. Setting aside an Article 15 action restores the applicant to the position held before imposition of the punishment, as if the action had never been initiated. Set aside of punishment should not routinely be granted. The Article 15 process relies on the fact that, when a member accepts an Article 15, the commander considering the case exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extent of punishment. Setting aside the Article 15 also sets aside the subsequent vacation action. He has not raised any genuine doubt as to his guilt of the offense for which he was punished or established any error or injustice in his Article 15 such that a set aside would be in the best interests of the Air Force. If the Board finds the Article 15 and court-martial charges were the same offenses for the same time periods, it may be appropriate to grant the applicant’s request. If the Board finds the offenses or time period were different, the Board should not grant the request. The complete JAJM evaluation is at Exhibit C. AFPC/DPSOE reviewed the case and states should the Board grant the applicant’s request and set aside the Article 15, his rank would be restored to master sergeant with a date of rank (DOR) of 1 Jul 06. He would not be eligible for supplemental promotion consideration for cycles 10E8 and 11E8 as he received a referral Enlisted Performance Report (EPR) for period 5 Dec 08 – 4 Dec 09, and his subsequent nonreferral report did not close out until 1 Feb 11 (after the Promotion Eligibility Cutoff Date (PECD) for cycle 11E8). _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel states the advisory opinion seems to concede that “If the Board finds that the Article 15 and the court-martial charges were for the same offenses for the same periods, then it may be appropriate to grant the applicant’s request…” This would seem to end the matter for two incontrovertible reasons. 1) A military judge found, unequivocally at trial, that the Article 15 and the court-martial charges were for exactly the same time periods and for the exact same charges. Unless this Board is going to overturn that ruling and say the military judge erred, then that matter has been adjudicated against the government already. 2) The advisory opinion acknowledges that the military judge’s decision was right on point with the law – as it has to. There is no question that a specification using “on or about” language and alleging an offense within one day is, in every jurisdiction in the land, “on or about.” The advisory opinion cannot point to a single contrary decision because there is not one anywhere. It is black letter that the government gets the benefit when it alleges “on or about” and can be within weeks or perhaps even months and still obtain a conviction, so it cannot try – when it is to the accused benefit – to suddenly narrow the “on or about” language to a certain date. The military judge pointed this out exactly at trial. Therefore, the fact of the matter is that the charges were the exact same and the petitioner was entitled to relief at trial – and is entitled to relief now – because he was acquitted of the exact same offenses for which he previously received an Article 15. The government chose to “reset” the issue and put the commander’s original Article 15 judgment to the scrutiny of a court-martial, they did not have to and could have simply charged the ‘new offenses’ – those that they believe occurred after the first Article 15. The applicant is entitled to have the Article 15 and subsequent vacation action removed from his record and to restore him to the position he was prior to that action. That means that he should be a master sergeant – with no Article 15 punishments in his record. In light of that, the applicant should be entitled to sit for the selection board at which he would have sat, but for the Article 15 and offenses of which he has been subsequently proven “not guilty” in a court of law. The counsel’s complete response is at Exhibit E. _________________________________________________________________ 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. The applicant asserts that the punishment he received under Article 15 is erroneous due to his later being found not guilty by a court martial of charges and specifications that were included in the Article 15. However, upon review of all the evidence and circumstances, we do not find an error or injustice that would warrant granting the applicant’s request. As AFLOA/JAJM points out in its advisory; a commanders discretion in evaluating and imposing nonjudicial punishment should not be reversed, or otherwise changed on appeal, or by the Board absent good cause. The applicant has not provided evidence that shows he was not accorded all rights to which entitled under the Article 15 process. The Article 15 was determined to be legally sufficient at the time and we are not persuaded that the outcome of the subsequent court martial changes this fact. Even if we concede that the same charges already settled by the Article 15 were included in the court martial charges, in our view, since the applicant was found not guilty, we do not believe he has been harmed to an extent warranting action by this Board. Therefore, in the absence of persuasive evidence to the contrary, 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 issue 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 Docket Number BC-2011-00654 in Executive Session on 23 Aug and 21 Sep 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to Docket Number BC-2011-00654 was considered: Exhibit A. DD Form 149, dated 14 Jan 11, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 12 Apr 11. Exhibit C. Letter, AFPC/DPSOE, dated 3 May 11. Exhibit D. Letter, SAF/MRBR, dated 20 May 11. Exhibit E. Letter, Counsel, dated 25 Aug 11. Panel Chair