RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02824 COUNSEL: NONE HEARING DESIRED: YES _____________________________________________________________ APPLICANT REQUESTS THAT: 1. The Record of Nonjudicial Punishment (NJP), imposed on 13 Sep 2010, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), be set aside and removed from his records. 2. The AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt), rendered for the period 1 Dec 2009 through 31 Nov 2010, be declared void and removed from his records. 3. He receive supplemental promotion consideration to the grade of technical sergeant (TSgt, E-6). _____________________________________________________________ APPLICANT CONTENDS THAT: The commander considered additional information without his knowledge and withheld the information until he appealed the original verdict. Two witness statements are similar to one another and lacked proof beyond a reasonable doubt that he engaged in inappropriate behavior. The applicant’s complete submission, with attachments, is at Exhibit A. _____________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the grade of staff sergeant (SSgt, E-5) having assumed the grade and effective with a date of rank of 1 May 2009. On 13 Sep 2010, the commander offered him NJP under Article 15, UCMJ, for one specification of dereliction of duty in that on 24 Aug 2010, he willfully failed to refrain from maintaining a professional work environment by exhibiting flirtatious behavior towards senior airman (SrA) ---, in violation of Article 92, UCMJ. The applicant consulted with defense counsel, accepted the Article 15, and waived his right to demand trial by court- martial. He elected to present written matters and made a personal appearance before the commander. On 27 Sep 2010, the commander decided he had committed the charged offense and imposed punishment consisting of a suspended reduction to the rank of SrA and a forfeiture of $573.00 pay. The applicant appealed the commander's decision and submitted written matters. On 29 Sep 2012, his commander denied his appeal. On 1 Oct 2010, the appellate authority denied his appeal. The Article 15 action was reviewed and determined to be legally sufficient. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility at Exhibit C. _____________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to remove the Article 15 and states, in part, nonjudicial punishment is authorized by Article 15, UCMJ (10 U.S.C. § 815), and governed by the Manual for Courts-Martial (Part V) and AFI 51-202, Nonjudicial Punishment. A commander considering a case for disposition under Article 15 exercises personal discretion in evaluating the case, both as to whether nonjudicial punishment is appropriate, and, if so, as to the nature and amount of punishment. This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. The applicant alleges that his due process rights were violated because the commander considered additional evidence that was not provided to the applicant when the Article 15 was offered. The evidence in question consists of a letter of reprimand (LOR) he received in Jul 2010 for being flirtatious and overly familiar with female trainees and several Training Assessment Surveys, which also alleged that he engaged in flirtatious conduct with female trainees. After the commander offered the Article 15 and the applicant accepted, his first sergeant told him that the commander had considered these documents, but had not provided them to the applicant. Consequently, he appealed the Article 15 on the basis that he was not provided these documents. As such, prior to considering the appeal, his commander provided these documents to the applicant and his Area Defense Counsel. The applicant was then able to address the LOR and the Training Assessment Surveys in his Article 15 appeal. Subsequently, his commander was then able to consider the applicant's response to these documents in his appeal. Upon reviewing his written appeal, the commander denied his appeal. Similarly, prior to appealing the Article 15 to the appellate authority, the applicant had received the additional evidence and addressed it in his appeal. The appellate authority reviewed his appeal and denied it. The legal review process showed that the commander did not act arbitrarily or capriciously in making his decision. The applicant also alleges that there was no proof beyond a reasonable doubt that he engaged in flirtatious behavior with SrA ---. However, both SrA --- and SrA X--- were consistent in their statements and stated that they viewed his conduct as inappropriate. This evidence underscores that the commander at the time of the Article 15 had the best opportunity to evaluate the evidence in the case. His record, which was considered as part of his nonjudicial punishment, reflects a history of inappropriate contact with females, highlighted by flirtatious comments. With that perspective, the commander exercised the discretion that the applicant granted him when the applicant accepted the Article 15 and found nonjudicial punishment appropriate in this case. The applicant does not make a compelling argument that the Board should overturn the commander's original, nonjudicial punishment decision on the basis of 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 with the limits of the commander's authority and discretion. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to remove the contested report. DPSID states the applicant did not file an appeal through the ERAB under the provisions of AFI 36- 240l, Correcting Officer and Enlisted Evaluation Reports. Moreover, 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. He has not provided any compelling evidence to show that the report is unjust or inaccurate as written. The complete DPSID evaluation is at Exhibit D. AFPC/DPSOE recommends denial of the applicant’s request for promotion consideration to the grade of technical sergeant (TSgt, E-6). DPSOE states that based on his 1 May 2009 date of rank to SSgt, the first time he was eligible for promotion consideration to TSgt was cycle 11E6. However, on 27 Sep 2010 he received an Article 15 for dereliction of duties in that he willfully failed to refrain from maintaining a professional work environment by exhibiting flirtatious behavior towards a subordinate airman. His punishment consisted of a reduction to the grade of SrA, suspended through 20 Mar 2011, and forfeiture of $573.00 pay. He also received a referral EPR for the period 1 Dec 2009 through 30 Nov 2010. These actions rendered him ineligible for promotion consideration in accordance with AFI 36-2502, Airman Promotion/Demotion Programs, Table 1.1., Rules 20 and 22. The complete DPSOE evaluation is at Exhibit E. _____________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 23 Oct 2012, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). _____________________________________________________________ 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 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. 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 issue(s) 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 this application in Executive Session on 7 Mar 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-02824: Exhibit A. DD Form 149, dated 20 Jun 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 15 Aug 2012. Exhibit D. Letter, AFPC/DPSID, dated 5 Sep 2012. Exhibit E. Letter, HQ AFPC/DPSOE, dated 1 Oct 2012. Exhibit F. Letter, SAF/MRBR, dated 23 Oct 2012.