RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02586 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His reentry code of “4H” which denotes “Serving suspended punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ),” be changed to allow him to reenlist. APPLICANT CONTENDS THAT: He believes the RE code to be in error. The Article 15 he received was not warranted due to his case being dismissed without prejudice. Since the Article, he has grown mentally and has gained maturity and knowledge. He is not the same young man he was during his first enlistment. He is involved in his community and recently elected as an executive officer at his local American Legion. He is also a member of the American Legion Honor Guard. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant entered active duty in the Regular Air Force on 7 May 2002. The applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), dated 23 May 2005, for assault by brandishing and pointing an unloaded firearm at someone, in violation of the UCMJ, Article 128. His punishment consisted of a reduction in grade from senior airman to airman first class, a forfeiture of $792 pay per month for two months, suspended through 2 December 2005, after which time it will be remitted without further action, unless sooner vacated; a 60 day restriction to the limits of Malmstrom Air Force Base and a reprimand. The applicant was honorably discharged on 9 May 2006 in the grade of airman first class under the provisions of AFI 36- 3208 (Completion of Required Active Service). He served 4 years on active duty. On 6 August 2014, AFPC/DPSOAE advised the applicant that his RE code is in error as his suspended punishment under Article 15 expired on 2 December 2005, which was before his 9 May 2006 separation date. Since his commander did not select or non-select him under the Selective Reenlistment Program (SRP), his RE code is being corrected to 3K (Reserved for use by HQ AFPC or the AFBCMR when no other code applies or is appropriate.” This code is waiverable for reentry in the military if he is otherwise eligible and if the component he is trying to join desires to waive the code. AIR FORCE EVALUATION: AFLOA/JAJM recommends disapproval in regards to removing the Article 15 from his personnel records. JAJM states the applicant believes that because his case was dismissed without prejudice in the local court system, the NJP should also be removed from his record. Accepting NJP is a process completely separate from any judicial proceedings in a civilian court. Just because a civilian court chooses not to move forward with the case does not mean there was not sufficient evidence to warrant NJP. The application was not submitted in a timely manner (within three years), but the merits may be considered by the Board. The applicant may have realized his discharge paperwork had the wrong coding in 2013, but he knew he had the Article 15 on his permanent record when he separated from the military in 2006. The coding on his DD 214 has already been corrected by AFPC. The applicant had the opportunity to make his arguments to his commander and the appellate authority as part of the Article 15 process. The commander and the appellate authority were in the best position to hear such factual arguments. Punishment decisions are within the discretion of the commander imposing punishment. The commander should consider the unique facts of each case, the offense committed, and the individual being punished. In this case, the commander exercised his discretion and there is no error or injustice that would warrant reversing the commander’s decision on upholding the NJP. The complete AFLOA/JAJM evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 12 November 2014, a copy of the evaluation was forwarded to the applicant for review and response within 30 days (Exhibit D). As of this date, no response has been received by this office. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting a change to the applicant’s RE code to allow him to reenlist. AFPC/DPSOAE has confirmed that the “4H” RE code currently listed on the applicant’s DD Form 214 is erroneous – as his suspended punishment under Article 15 expired before his separation date. The applicant’s DD Form 214 will be administratively corrected to reflect “3K.” Although the applicant requests a code that would allow for reenlistment, we believe that “3K,” – Secretarial Authority, is appropriate. Although the “3K” RE code does not make the applicant immediately eligible for reenlistment, it can be waived by the military services. Therefore, other than the administrative correction cited above, we find no basis to recommend granting any additional relief sought in this application. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an 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-2014-02586 in Executive Session on 12 March 2015, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02586 was considered: Exhibit A. DD Form 149, dated 19 June 2014, w/atchs. Exhibit B. Applicant’s Available Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 3 November 2014. Exhibit D. Letter, SAF/MRBR, dated 12 November 2014.