RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03143 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His nonjudicial punishment imposed under Article 15 (Art 15) be set aside and removed from his records. 2. His referral Enlisted Performance Report (EPR) rendered on him with a close out date of 15 July 2009 be removed from his records. 3. He be reinstated to the grade of technical sergeant/E6 with his original date of rank 1 May 2006. ________________________________________________________________ APPLICANT CONTENDS THAT: He has proudly served in the Air Force for over 17 years. During this time, he has never faced disciplinary action. In fact, he has received numerous awards and decorations and has served his country through seven foreign tours including Iraq, Saudi Arabia, Kuwait, Jordan, Qatar and Turkey. He was also deployed at the time of this application. In June 2009, while serving in Turkey, he received nonjudicial punishment under Article 15 (Art 15) for five charges: one count of having a camera cell phone in a restricted area, two counts of sleeping on post, one count of obstruction of justice and one count of failing to conduct a foreign object debris (FOD) check. He is guilty of having a cell phone in a restricted area. The other charges are based on false accusations. He has documented the circumstances surrounding these events in an attachment to this request. These charges resulted in a reduction in rank and other related punishments. He requests the Board review the wrongs of his case and correct his military record from the injustice that has occurred. In support of his appeal, the applicant provides a 22-page statement, a copy of his enlisted performance report that predates the referral report, a copy of the Article 15, a copy of the Article 138 complaint, a copy of the congressional inquiry and other supporting documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently on active duty serving in the grade of staff sergeant/E5. On 7 July 2009, the applicant was notified of his commander’s intent to impose nonjudicial punishment (Art 15) against him for violation of Articles 92, 113 and 134 of the Uniform Code of Military Justice (UCMJ). The applicant consulted with counsel, waived his right to a court- martial and submitted a written statement on his behalf. He also requested a personal appearance before his commander. On 14 July 2009, the commander found the applicant committed one or more of the offenses alleged. His punishment consisted of a reduction to the grade of staff sergeant with a new date of rank of 14 July 2009, forfeiture of $1,414.00 pay per month for two months and a reprimand. The applicant did not appeal the punishment. On 21 July 2009, the Art 15 was found legally sufficient. On 8 August 2009, the applicant received a referral EPR due to comments listed in block 2 of the EPR. He submitted matters to the additional rater for consideration on 17 August 2009. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are at Exhibits C – E. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Nonjudicial punishment is authorized by Article 15 of the UCMJ and governed by the Manual for Courts-Martial. Under Art 15, commanders may dispose of certain offenses without trial by court-martial unless the member objects. The applicant asserts a number of allegations of error or injustice in his Art 15. However, an examination of the Art 15 reveals no errors in the processing of the action. After being notified by his commander of the nature of the offenses, the applicant consulted with defense counsel. The commander considered the information offered before finding he committed the offenses as alleged and then imposed punishment. The applicant also had the opportunity to consult with counsel prior to deciding whether to appeal the commander’s decision. There appears to be no deficiencies with the applicant’s rights to due process or the assistance of counsel. The applicant admits guilt to one of the five specifications charged. In the context of the applicant’s request to have his Art 15 set aside, it is important to point out the commander could impose the full range of punishment based on only one charge and specification. For instance, had the commander agreed the applicant had committed one specification, but none of the others, he still could have given the applicant the Art 15 and imposed the same punishment. The applicant also asserts there was no investigation as to the facts of his case. Yet, the applicant points out that a number of witnesses provided sworn statements in conjunction with the incidents. There is no requirement that the evidence be acquired through an official law enforcement investigation. An unofficial investigation at the behest of the commander, first sergeant or supervisor is still an investigation into the facts of the case. Evidence and witness statements collected through such an investigation are properly considered and legally considered by a commander in the course of determining whether an Art 15 is appropriate. Additionally, the applicant questions the advice he was given by his assigned military defense counsel. He says he received feedback from a civilian defense counsel indicating the decisions made based on advice from the military defense counsel made it look like he was guilty. Acceptance of an Art 15 is not an admission of guilt. There is nothing incorrect in the information imparted to the applicant by the military defense counsel, as quoted by the applicant. A finding of guilty for any offense at a court-martial would have meant a federal conviction and up to three months in confinement. While the offense to which the applicant admits guilt does not carry a punitive discharge, the other offenses could have resulted in a bad conduct or dishonorable discharge. Furthermore, it is not uncommon to seek administrative discharge of Airmen who have been convicted of an offense at a court-martial. The MCM and the governing instruction provide certain relief from Art 15s, specifically, mitigation, remission, suspension and set aside. A set aside of an Art 15 is the removal of the punishment from the record and the restoration of the member’s rights. Setting aside an Art 15 restores the member to the position held before imposition, as if the action never happened. Set aside should not be routinely granted. Rather it should be used strictly and in rare and unusual cases where genuine questions about the member’s guilt arises or where the interest of the Air Force would be served. In this case, the applicant’s guilt to at least one offense remains firmly established in no less way than the applicants own admission. The applicant has not established an error or injustice in his Art 15 such that a set aside would be in the best interest of the Air Force. The commander did not act in an arbitrary or capricious way when he found an Art 15 was appropriate in this case. Furthermore, the punishment imposed was appropriate for the case and was not unfairly harsh. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE defers to AFLOA/JAJM’s recommendation. The applicant has been considered and nonselected for promotion to master sergeant twice. Based on his new date of rank to staff sergeant, he was eligible for promotion consideration to technical sergeant beginning with cycle 11E6. Due to his deployment, he has not yet tested for promotion. Should the Board grant the applicant’s request, he would receive supplemental promotion consideration to master sergeant beginning with cycle 10E7, once he tests. The completed DPSOE evaluation is at Exhibit D. AFPC/DPSID recommends denial. The applicant has not filed an appeal through the Evaluation Reports Appeals Board (ERAB). The applicant contends that he received his EPR a couple months after the closeout date. However, the actual time was three weeks. While timeliness is always an important factor in processing performance reports, failure by the rating chain to present the referral EPR for signature and submission for processing is not a valid reason to challenge the validity of the report. The applicant also contends the feedback date recorded on the EPR is bogus and refers to attachment 5 of his submission, however, that reference could not be found. An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The applicant has not substantiated the contested report is unjust or inaccurate. The complete DPSID evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant submitted sworn affidavits as additional evidence regarding his case. He maintains while there were four witness statements written in his case, there was not a thorough investigation. He also states he was never advised he could have witnesses appear and testify on his behalf in front of his commander after accepting the Art 15. Finally, while he did not appeal his punishment, he did continue to appeal to his commander and that appeal is submitted with his original request. He respectfully requests the Board review the wrongs and correct his military record. He requests his rank be reinstated along with his time in grade. However, if the Board feels a complete reinstatement is not available, he requests the Board reinstate at least 75 percent or such other percentage as deemed appropriate. The Art 15 punishment rendered in his case was far too severe for the crimes charged, particularly given his innocence to all but one of the offenses. The applicant’s complete response, with attachments, is at Exhibit G. ________________________________________________________________ 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 took note of the applicant’s contentions regarding his nonjudicial punishment and that the punishment rendered was far too severe for the crimes charged. Notwithstanding the applicant’s view, we find insufficient evidence that the applicant was denied any rights entitled to under the Article 15 process, to include his right to demand trial by court martial, which would have required a different legal standard for his conviction. By accepting the Article 15 forum, the applicant entrusted to his commander the responsibility to decide if he had committed the alleged offenses. We do not find the commander abused his discretionary authority or that his action was arbitrary or capricious. The applicant has not provided evidence that shows the Article 15 action was not processed in accordance with applicable policy and procedures. As such, we agree with the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our determination that the applicant has not been the victim of error or injustice. Therefore, in the absence of 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 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 BCMR Docket Number BC-2011-03143 in Executive Session on 27 March 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dtd 10 Aug 11, w/atchs. Exhibit B. Letter, Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dtd 27 Sep 11. Exhibit D. Letter, AFPC/DPSOE, dtd 20 Oct 11. Exhibit E. Letter, SAF/MRBR, dtd 13 Jan 12. Exhibit F. Applicant’s Response dtd 9 Feb 12, w/atchs.