RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02512 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His nonjudicial punishment (NJP), imposed under Article 15 of the Uniform Code of Military Justice (UCMJ), be declared void and removed from his records. 2. His Promotion Propriety Action (PPA) be expunged from his record, and he be allowed to pin-on Major at his original pin-on date. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. The specifications that formed the basis of the NJP action, that he failed to comply with the weapon storage plan prescribed in his temporary duty (TDY) orders, and then lied about said failure, were insufficient. He attempted to comply with the requirements of his weapon storage plan, which required him to store his weapons, a rifle and a pistol, at the armory at Ft. Bliss, Texas, or at the alternate facility at the White Sands Missile Range (WSMR), New Mexico while on leave in-route from deployment; however, due to circumstances beyond his control, neither facility was able to take possession of his weapons. Since he was unable to execute his primary or alternate weapon storage plans due to circumstances that were beyond his control, he fully complied with his orders. Having done so, he did what any other officer would have done and kept his weapons under his control at all times while on leave at his parent’s private residence. Additionally, the weapon storage plan was unexecutable as it was completely silent about what to do in the case the first two alternatives were unavailable. 2. When his commander asked him if he followed his orders, he simply said “Yes.” In doing so, he was not guilty of lying about complying with the order; he returned safely to and from a deployment, unassisted, with the weapons entrusted to him, having traveled over 20,000 miles with these weapons and without clear direction or support along the journey. Importantly, the question of where his weapons were stored was not asked. This was the first conversation the applicant had with a new commander he had never met. He planned on telling the commander that his approval of the weapons plan set the applicant up for failure, but wanted to make a good first impression and thought that immediately criticizing the commander was inappropriate. 3. His defense during the NJP process was inadequate and his commander abused his authority by denying him the opportunity to gather evidence in his defense. His Area Defense Council (ADC) admitted that he had never defended an officer during a NJP proceeding and he was busy with a lot of other cases. Due to his ADC’s busy schedule the applicant had to meet with the General (his Wg/CC) without the benefit of legal counsel. He was stationed in Okinawa, Japan and his commander denied his request to return to Ft. Bliss to compile his evidence. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant initially began extended active duty as a commissioned officer in the Medical Service Corps (MSC) on 3 Jan 05, and was subsequently promoted to the rank of captain. On 8 Mar 10, the applicant was selected for promotion on the FY 10A Major MSC Central Selection Board, and received a projected pin-on date of 1 Sep 10. On 14 May 10, the applicant’s commander notified him that he was considering whether to recommend that he be punished under Article 15 of the UCMJ for Violations of Articles 92 and 107. On 21 May 10, the applicant, through council, requested the commander drop the Article 15 to a Letter of Reprimand (LOR), and waived his right to court-martial and accepted non-judicial punishment (NJP). On 27 May 10, the applicant’s commander imposed NJP under Article 15 of the UCMJ for: a. Violation of UCMJ, Article 92. The applicant, having knowledge of a lawful order issued by (his commander) to transport his weapon to the Fort Bliss, TX armory after arrival, an order which it was his duty to obey, did, between 1 Feb 10 and 6 Feb 10, fail to obey the same by wrongfully failing to transport his weapon to Fort Bliss armory upon arrival. b. Violation of UCMJ, Article, 107. The applicant, did, at or near Kadena Air Base, Okinawa, Japan, on or about 9 Feb 10, with intent to deceive make to (his commander) an official statement, that he stored his weapon at Fort Bliss or words to that effect, which statement was false in that the applicant never checked his weapon into Ft. Bliss armory, and was then known by him to be so false. He waived his right to trial by court-martial and accepted the nonjudicial punishment. The commander determined that he did commit one or more of the offenses and imposed punishment consisting of a reprimand, and forfeiture of $1,000.00 pay per month for two months. On 3 Jun 10, the applicant chose not to not appeal the Article 15. On 2 Jul 10, the 5AF/CV directed the Article 15 be filed in the applicant’s Officer Selection Record (OSR). The applicant received a referral Officer Performance Report (OPR) for the period 25 May 09 through 22 Jul 10 which stated “Member received an Article 15 during the rating period for disobeying a lawful order/false official statement.” On 19 Jul 11, the applicant, through council, requested his wing commander set aside the Article 15. The applicant’s wing commander denied that request on 15 Sep 11. On 9 Sep 10, the applicant’s commander initiated a Promotion Propriety Action (PPA) removing the applicant’s name from the major’s promotion list. On 22 Sep 11, the applicant, through council, requested that his new wing commander set aside the Article 15. The applicant’s new wing commander denied that request on 20 Oct 11. On 21 Dec 12, the applicant, through council, requested that his commander’s supervisor, the Center Commander, set aside the Article 15. The Center Commander denied that request on 1 Feb 12. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility which are included at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to remove the NJP, indicating there is no evidence of an error or injustice. A review of the AF Form 3070 (NJP) indicates the applicant’s rights were observed throughout the process of the Article 15. The applicant essentially does not allege error in how the Article 15 was processed. Instead, what he essentially argues is that all of the prior decision makers ignored the evidence and, as a result, reached the wrong conclusions. But the evidence indicates each commander involved in the Article 15 process, and subsequent set-aside requests, considered the evidence and independently decided that nonjudicial punishment was appropriate to the circumstances. There are sufficient facts in the record to reasonably support these conclusions. According to the Ft. Bliss Adjutant General, had the applicant asked the Military Police Desk for assistance he would have been brought to the MP armory where he could have stored his weapons. However, he did not do so. Furthermore, this process included an independent commander, without prior contact with this matter, reaching the same conclusion, even after reviewing the evidence acquired by the applicant after his subsequent investigation. The applicant’s remaining arguments are also not persuasive. The applicant asserts his commander lied about their 9 Feb 10 conversation, but has not provided any evidence or rationale. His assertions about his commander’s poor leadership during deployment and in approving a weapons plan he created are neither substantive nor relevant to the issue. The applicant does not make a compelling argument that the Board should overturn the commander’s original nonjudicial punishment decision on the basis of an injustice. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and the punishment decision was well within the limits of the commander’s authority and discretion. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOO recommends denial of the applicant’s request to remove the promotion propriety action. AFI 36-2501, Officer Promotions and Selective Continuation, states commanders question promotion when the preponderance of evidence shows the officer has not met the requirement for exemplary conduct set forth in Title 10, U.S.C §8583 or is not mentally, physically, morally, or professionally qualified to perform the duties of the higher grade. Air Force policy states that formal rules of evidence do not apply to a promotion propriety action. In addition, there is no time line as to when the action should be initiated as long as it is prior to the pin-on date. The removal action was reviewed by base and Air Force legal offices and the action was found to be legally sufficient to warrant the action taken. A complete copy of the AFPC/DPSOO evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates his contentions and takes exception to several statements in the AFLOA/JAJM advisory. He followed an unclear order, and was sent to the wrong place where the base policy was not to accept weapons from units not assigned there. His orders were to take his weapons to Ft. Bliss, and he did not disobey the order because he took his weapons to Ft. Bliss. On this point alone, his Article 15 should be overturned. To suggest he did not pursue storage of his weapon is preposterous. The date of his alleged violation is incorrect on the AF Form 3070C. He did transport his weapons to Ft. Bliss on 31 Jan 10, not the failure as alleged between 1-6 Feb 10. The summary of the violation only finds him guilty of failing to take one weapon when he, in fact, had two weapons. This makes a false official document. Failure to follow an order includes the element that the order is a certain lawful order; this element of certainty does not exist in this case. Concerning his false statement, his conversation with his commander was not under oath, he had no rights read to him, and there were no witnesses. There was only an exchange of words between two people who were just meeting for the first time when an unfortunate misunderstanding took place between them. Furthermore, the verbiage of the reprimand was revised to remove the phrase, “not just once, but again in Texas;” however, this line was considered by his commander in arriving at the proposed punishment prior to being crossed out. The words showed a pattern of behavior. After the pattern was debunked by the removal of these words, his punishment was not changed. He also showed the JA lied to the commander with intent to deceive in an official document when he said there was no doubt the applicant had failed to pursue his alternate weapons plan. In addition, he takes exception the timing of his PPA. The DPSOO advisory states there is no time limit to the PPA as long as it is before the pin-on date. His pin-on date was to be 1 Sep 10, and his promotion was removed on 9 Sep 10, exceeding the time limit allowed (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 an error or injustice. We took notice of the applicant's complete submission, to include his response to the advisory opinions rendered in this case, 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. The applicant’s assertions that the evidence was insufficient to support the specifications for which the applicant was punished are duly noted; however, we do not find these arguments or the documentation presented sufficient to undermine the basis of the NJP action. In this respect, we note the contested Article 15 was found legally sufficient and it appears the applicant was provided all of the rights to which he was entitled, including the right to refuse the Article 15 and demand trial by court martial, which would have required a different standard for determining whether he committed the alleged offenses or not. By waiving his right to trial by court-martial, the applicant accepted the commander’s evaluation of the evidence and his judgment as to his guilt or innocence and punishment. Therefore, we believe the NJP action, ensuing referral OPR, and promotion propriety action were proper and we do not find the commander’s actions to be arbitrary or capricious. Further, while the Board notes the applicant presented a variety of allegations to include that his commander lied, the JA lied, his legal defense was inadequate, his commander showed poor leadership, the summary of his violation only mentioned one weapon rather than two, words were lined out of his reprimand by the reviewing authority, and that the promotion propriety action was not timely, we do not find these arguments or the documentation provided sufficient to convince us the applicant was denied rights to which he was entitled, appropriate standards were not applied, or that his commander abused his discretionary authority. Ultimately, while the applicant makes a variety of arguments intended to impugn the actions of his commander, the evidence before us indicates the applicant’s predicament is the result of a lack of due diligence on his part in ensuring that his own weapon storage plan was executable, and was exacerbated by his poor judgment when he decided to be less than truthful when his commander asked him about it. Therefore, 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2012-02512 in Executive Session on 29 Jan 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member ? The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-02512 was considered: Exhibit A. DD Form 149, dated 10 May 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 23 Jul 12. Exhibit D. Letter, AFPC/DPSOO, dated 30 Aug 12. Exhibit E. Letter, SAF/MRBR, dated 1 Oct 12. Exhibit F. Letter, Applicant, dated 19 Oct 12.