RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04934 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His nonjudicial punishment (NJP) vacation action be removed from his military record. 2. His rank to Technical Sergeant (E-6) be restored. APPLICANT CONTENDS THAT: He never received the actual charges used to make the vacation decision and he wasn’t given any feedback prior to the decision of failing to meet standards. 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 (E-5) in the Regular Air Force. On 29 Jun 11, the applicant was offered NJP for failing to go to this appointed place of duty in violation of Article 86, Uniform Code of Military Justice (UCMJ) and being drunk and disorderly, in violation of Article 134, UCMJ. On 8 Jul 11, after consulting with legal counsel, the applicant accepted his NJP and submitted a written presentation and requested to meet with his commander. On 13 Jul 11, the applicant was found to have committed both offenses. On 18 Jul 11, the applicant was given a suspended reduction in the grade of Staff Sergeant (E-5), 45 days extra duty, and a reprimand. The applicant did not appeal this decision. On 16 Nov 11, the applicant was notified that his commander was considering vacating the suspended portion of his NJP. On 21 Nov 11, the applicant submitted a written response and requested a personal appearance with his commander. The applicant accepted responsibility and admitted he did not consult with anyone regarding taking a class during an exercise. On 28 Nov 11, the applicant’s suspension was vacated and a new effective date of rank of 28 Nov 11 was established. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice. NJP 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. This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects (a Service Member can reject the NJP and demand trial by court- martial). Service members first must be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander's intent to impose the punishment. The member may consult with a defense counsel to determine whether to accept the NJP or demand trial by court- martial. NJP is also not, when imposed, a criminal conviction. A member accepting NJP proceedings may submit written matters to, and have a hearing with, the commander imposing the punishment. The member may have a spokesperson at the hearing, may request that witnesses appear and testify, and may present evidence. The commander must consider any information offered by the member and must be convinced by reliable evidence that the member committed the offenses before imposing punishment. Members who wish to contest their commander's determination or the severity of the punishment imposed may appeal to the next higher commander. The appeal authority may deny the appeal altogether if the appeal authority agrees with the action taken or may remove or modify the NJP if he or she disagrees in whole or in part with the action. A commander considering a case for disposition under NJP exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extent of punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause. While under a suspended punishment, the applicant signed up for classes during the duty day and did not coordinate with his leadership. For his misconduct, the applicant’s supervisor gave him a letter of counseling (LOC) on 27 Oct 11. The applicant acknowledged receipt of the LOC and chose not to submit written matters in response. As a result of this LOC, the applicant’s commander initiated vacation proceedings. According to AFI 51-202, Nonjudicial Punishment, paragraph 5.10, “a commander may vacate all or a portion of the suspended punishment.” The applicant does not make a compelling argument that the Board should overturn the commander’s vacation action on the basis of injustice. The applicant was put on notice of the basis for the vacation proceedings when he was served the AF Form 366, Record of Proceedings of Vacation of Suspended Nonjudicial Punishment and the commander’s ultimate decision on the vacation action is firmly based on the evidence of the case, to include the applicant’s statement he submitted to the commander and two Memo For Record (MFRs) detailing his performance and recent feedback history regarding keeping his chain of command informed of his whereabouts during the duty day. The decision to vacate the suspended portion of the NJP action by the applicant’s leadership was fitting, appropriate, and just. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE makes no recommendation at this time. DPSOE states they have no equity in the decision regarding the removal of NJP vacation action and therefore defer to AFLOA/JAJM’s recommendation. However, should the Board grant this request, the applicant’s rank would be Technical Sergeant (TSgt) with a date of rank (DOR) of 16 Dec 10. A complete copy of the ADPC/DPSOE evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response, the applicant states he only provided copies of documents relative to his vacation. He did not have any issues with the NJP he was initially given. The applicant reiterates that he did indeed inform his leadership that he was taking a lunch time class and provides a letter that his supervision was indeed aware. He had never received a LOC and did not understand the importance of responding in writing. The LOC was written for signing up for a class without permission. As stated above, he felt his leadership had been informed. If a standard hasn’t been explained or defined it doesn’t seem that is can be misconduct. Prior to the trouble he found himself in in 2011, which he felt was fair and just, he did not have a pattern of misconduct. The vacation action taken against him is unfounded. A complete copy of the applicant’s response, with attachments, is at 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 opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-04934 in Executive Session on 11 Aug 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04934 was considered: Exhibit A. DD Form 149, dated 11 Dec 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 13 Jan 15. Exhibit D. Memorandum, AFPC/DPSOE, dated 21 Jan 15. Exhibit E. Letter, SAF/MRBR, dated 17 Mar 15. Exhibit F. Letter, Applicant, not dated. 1 2