RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02620 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The nonjudicial punishment (NJP) under Article 15 imposed on 20 Nov 12 be set aside and removed from his records. 2. His Reentry (RE) code of 2X (First-term, second-term or career airman considered but not selected for reenlistment under the Selective Re-enlistment Program (SRP)) be changed to allow him to reenlist. ________________________________________________________________ APPLICANT CONTENDS THAT: The Article 15 punishment was too harsh because another individual made the same mistake and only received a Letter of Reprimand (LOR). The Article 15 gave him a 4H coding which made him vulnerable for the Date of Separation (DOS) Rollback program. As a result, he was selected for DOS rollback and discharged. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 15 Apr 08. On 20 Nov 12, the applicant received an Article 15 for dereliction in the performance of his duties by failing to follow a Technical Order by signing off on a task before it was actually completed, in violation of Article 92 of the Uniform Code of Military Justice (UCMJ). As a result, his punishment consisted of a suspended reduction to the grade of airman first class (E-3) for six months, forfeiture of $200 pay per month for two months, 15 days restriction to base, and a reprimand. On 20 Nov 12, the applicant acknowledged receipt of the Article 15 punishment and, on 21 Nov 12, elected to not to appeal the punishment or submit statements on his behalf. On 26 Nov 12, the Article 15 was reviewed and determined to be legally sufficient. On 25 Feb 13, the applicant’s supervisor non-recommended him for reenlistment and, on 4 Mar 13, the applicant’s commander non- selected him for reenlistment. In doing so, the commander indicated the applicant was eligible for the Fiscal Year 2013 DOS Rollback Program as he was serving suspended punishment to an Article 15. On 4 Mar 13, the applicant acknowledged receipt and on 7 Mar 13, elected to appeal the commander’s decision. On 10 Apr 13, the applicant’s commander denied his appeal and on 12 Apr 13, the applicant acknowledged receipt of the denial of his appeal case. On 31 May 13, the applicant was furnished an honorable discharge, with a RE code of 2X, and was credited with 5 years, 1 month, and 16 days of total active service. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to set aside his NJP, indicating the applicant has not shown a clear error or injustice. The applicant fails to make a compelling argument that the Board should overturn the commander’s original decision. The commander’s decision is firmly based on the evidence of the case and the punishment was well within the limits of the commander’s authority and discretion. Although the applicant contends an injustice in his receipt of nonjudicial punishment alleging that someone else only received a LOR for the same mistake, the legal review process showed the commander did not act arbitrarily or capriciously in making his decision. The applicant’s leadership was well aware of the applicant’s record before and after the misconduct and made sure to take this, along with his family’s medical situation, into account before issuing the nonjudicial punishment, denying his reenlistment and approving his early separation through the DOS Rollback Program. A complete copy of the AFPC/JAJM evaluation is at Exhibit C. AFPC/DPSOA recommends denial, indicating the applicant has not provided any proof of an error or injustice related to his RE code. The applicant was eligible for the DOS Rollback Program based on his Article 15 suspended punishment and entering his SRP window on 15 Jan 13. His non-selection for re-enlistment was carried out in accordance with AFI 36-2606, Reenlistment in the USAF, which indicates that commanders have selective reenlistment or non-selection authority. The applicant was discharged under the FY13 Air Force Shaping Rollback Program. The applicant was in his reenlistment window but was denied reenlistment, which required him to separate under the rollback guidance. A complete copy of the AFPC/DPSOA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant argues the facts in the AFLOA/JAJM Advisory are incorrect as it pertains to him not making a personal appearance before his commander. He indicates that he did indeed make a personal appearance and his commander told him that at that time, he was unsure whether or not he would be imposing nonjudicial punishment on the applicant. He was immediately excused from the office and was not given a chance to present evidence in his defense. When he later requested an audience with the commander through the First Sergeant, he was told that the commander would not want to see him. He was later informed that the commander had made his decision to impose punishment and was told by the Area Defense Counsel (ADC) to accept the Article 15 and not fight it because he was only receiving a suspended reduction in grade. He was told that accepting the Article 15 and not fighting it would keep him in the Air Force and not affect his reenlistment. He later found out that the reason the person who made the same mistake as he did only received an LOR was because that person’s mistake was sent through the proper channels of the chain of command unlike his that was sent directly to the commander. After consulting the ADC, he left that issue alone in fear of losing his rank and reenlistment eligibility. In February 2013, he was informed that his Article 15 made him eligible for the DOS Rollback Program. The ADC told him that there was nothing more he could do unless he appealed the DOS Rollback, which later he learned that the format the ADC gave him to appeal was incorrect. He later solicited the help of the Inspector General (IG) office and gained a better understanding of what he needed to submit in support of his appeal of the DOS Rollback (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 an 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 (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While the applicant’s arguments are duly noted, in the absence of any evidence the applicant was denied rights to which he was entitled, that his nonjudicial punishment and subsequent denial or reenlistment represented an abuse of discretionary authority, or that he has been treated differently than others similarly situated, we are not convinced he is the victim of an error or injustice. While we note that in response to the advisory opinions rendered in this matter, the applicant argues that he was denied a personal appearance by the commander during the nonjudicial punishment proceedings, the evidence of record clearly indicates the applicant waived his rights to a personal appearance before the commander. We also note that in his rebuttal response, the applicant raised new requests for correction of his records that were not included in his original submission. As such, these constitute new requests; as such, the applicant must submit a new application in order for these requests to be considered. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief. ________________________________________________________________ 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-2013-02620 in Executive Session on 6 Mar 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02620 was considered: Exhibit A. DD Form 149, dated 22 May 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFLOA/JAJM, dated 9 Jun 13. Exhibit D. Letter, AFPC/DPSOA, dated 4 Sep 13. Exhibit E. Letter, SAF/MRBR, dated 18 Oct 13. Exhibit F. Letter, Applicant, dated 1 Nov 13, w/atchs. Panel Chair 5 6