RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04852 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His non-judicial punishment, under Article 15 of the Uniform Code of Military Justice (UCMJ), be removed. 2. His Re-entry (RE) code “4H” - “Undergoing Punishment Pursuant to Article 15, UCMJ,” be changed to “1J” - “Eligible to Reenlist- Elected Separation or Discharge.” 3. He receive a corrected DD Form 214, Certificate of Release or Discharge from Active Duty. ________________________________________________________________ APPLICANT CONTENDS THAT: He has served the time required for the Article 15. He is a certified Florida State Law Enforcement Officer. It has been difficult seeking employment based on the isolated incident in 2005. In support of his request, the applicant provides a copy of DD Form 214. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 13 August 2002. He was discharged on 31 August 2006 with an honorable characterization of service and a narrative reason for separation of miscellaneous/general reasons. He was credited with 4 years and 16 days of active duty service. According to copies of documents extracted from the Automated Records Management System (ARMS), by way of an AF Form 3070, Record of Nonjudicial Punishment Proceedings, the applicant’s commander offered him nonjudicial punishment (NJP) proceedings under Article 15 UCMJ, on 10 April 2006, for one specification of a violation of Article 134, Adultery. The applicant acknowledged the NJP on 13 April 2006 and waived his right to trial by court-martial. However, he elected to consult counsel, submit a written statement on his behalf, and requested a personal appearance before his commander. On 18 April 2006, the commander determined the applicant did commit the offense and imposed the Article 15. The applicant’s imposed punishment was suspension of a reduction to a grade below Airman First Class, until 16 October 2006, after which time it would be remitted without further action, unless sooner vacated, 45 days of restriction to the local Air Force Base and 45 days of extra duty. The applicant did not appeal the commander’s decision. The Article 15 proceedings were reviewed and determined to be legally sufficient. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that the applicant has not demonstrated a clear error or injustice and does not make a compelling argument that the Board should overturn the commander’s original, nonjudicial punishment decision. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of this case and the punishment decision was well with the limits of the commander's authority and discretion. 2. The Manual for Court Martial (MCM) and AFI 51-202, Nonjudicial Punishment, provide for certain relief from nonjudicial punishment, specifically, mitigation, remission, suspension, and set aside. A set aside of an Article 15 is the removal of the punishment from the record and the restoration of the service member's rights, privileges, pay, or property affected by the punishment. Setting aside an Article 15 action restores the member 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. Rather, set aside is to be used strictly in the rare and unusual case where a genuine question about the service member's guilt arises or where the best interests of the Air Force would be served. 3. The applicant does not allege error in how the Article 15 was processed. A review of the available documentation for the Article 15 indicates that the applicant's rights were observed throughout the entire process. At all times, he was represented by a fully qualified appointed military defense counsel. The commander at the time of this nonjudicial punishment action, had the best opportunity to evaluate the evidence in the applicant's case. With that perspective, the commander exercised the discretion that the applicant granted him when the applicant accepted the Article 15 and found the nonjudicial punishment appropriate in the applicant's case. The legal review processes showed that the commander did not act arbitrarily or capriciously in making this determination. A review of the AF Form 3070 indicates that the applicant's rights were observed throughout the process of his nonjudicial punishment action. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOA recommends denial. DPSOA states the applicant’s “4H” RE code would have been changed to reflect “4E” - “Grade is airman first class or below and airman completed 31 or more months (55 months for a 6-year enlistees), if a first-term airman; or, grade is airman first class or below and the airman is a second-term or career airman” based on his grade and time in service once the Article 15 suspended punishment expired on 16 Oct 2006. However, the Air Force does not recognize any time served after a member separates. The member would keep the same RE code in effect at the time of discharge. The complete DPSOA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 21 December 2012 for review and comment within 30 days (Exhibit E). To date, this office has not received a response. ________________________________________________________________ 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 that 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. ________________________________________________________________ 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 BC-2012-04852 in Executive Session on 1 August 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 October 2012, w/atch. Exhibit B. Applicant’s Master Personnel Records Exhibit C. Letter, AFLOA/JAJM, dated 5 December 2012. Exhibit D. Letter, AFPC/DPSOA, dated 12 December 2012. Exhibit E. Letter, SAF/MRBR, dated 21 December 2012.