RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-05206 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His	Article	15	be	expunged	from	his	all	records	referencing	a reduction rank be expunged.

APPLICANT CONTENDS THAT:
He was punished with a reduction in rank due to an inappropriate Article 15. He submits a Secretary of the Air Force Personnel Council (SAFPC) dual action memorandum indicating the Board was “sympathetic;” which implies SAFPC agreed with the impropriety of the Article 15. Although SAFPC did not order the Article 15 records expunged, by ordering the restoration of rank, the intent was to cease Article 15 punishment. However, his punishment has continued years later because government agencies eliminate job applicants based on Article 15 history, rendering him unemployable. He contends employers’ now regarded an Article 15 equivalent to a felony conviction. Had this consequence been made known to him he would have demanded a court martial.

He notes the Board’s counsel will argue the Air Force has no involvement in the hiring policies of other government agencies. Alternatively, it is not unreasonable to expect the Defense Secretary to expunge all Article 15 records from active duty members with an honorable discharge. His case illustrates one can receive a dishonorable honorable discharge. This injustice can be reversed by expunging his Article 15 records and any records referencing a reduction in rank. Specifically, his DD Form 214 and DD Form 215 both announce a history of punishment. As such, he requests a new DD Form 214 that eliminates the need for a DD Form 215 and makes no reference to rank reduction, implicitly or otherwise. Further, he requests the new DD Form 214 be sent to all agencies to which the previous DD Form 214 or DD Form 215 were sent, and ask the agencies to destroy all records referencing the previous forms.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:
On 18 Jun 97, the applicant entered the Regular Air Force.
On 5 Dec 00, the applicant’s commander offered him nonjudicial punishment (NJP) for failure to obey a lawful order. The applicant accepted NJP proceedings and submitted a rebuttal.

On 21 Dec 00, the applicant’s commander found the applicant committed the offense and punished him by reducing him to the grade of airman first class (E-3), giving him 25 days extra duty and a reprimand. The applicant was notified of his right to appeal and he appealed, but his appeal was denied.

On 13 Jun 01, in a dual action case, SAFPC found the applicant’s medical condition was the primary reason for separation from the service and chooses that venue over an administrative punitive discharge.

On 15 Jun 01, the applicant was furnished an honorable discharge, and was credited with 3 years, 11 Months, and 28 days of active service (as noted on DD Form 215, Correction to Certificate of Release or Discharge from Active Duty, dated 12 Jun 13).

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 with regards to the applicant’s request to expunge the NJP from his record. The application is untimely; the application was received approximately 14 years since the NJP action was completed. Moreover, it is not in the interest of justice to consider the application. The applicant’s arguments could have been made near the time of the action.

NJP is authorized by Article 15, Uniform Code of Military Justice (UCMJ), 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. 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. Accepting the proceedings is simply a choice of forum; it is not an admission of guilt. NJP is also not, when imposed, a criminal conviction.

A member accepting NJP 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 Article 15 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.

AFI 51-202, states (with NJP), a "commander may, at any time, suspend any part or amount of the unexecuted punishment for a specific probationary period, until a specified date. [It] will be automatically remitted (canceled) at the end of that period, if the member does not violate the condition(s) of suspension .... Suspension of punishment may not be for a period longer than 6 months .... A suspension action will set a specific date after which, unless sooner vacated, the suspension will terminate and the punishment is remitted."

In the applicant’s case, he failed to obey a lawful order. For the alleged wrongdoing, his commander offered him NJP. The official military record indicates the applicant accepted NJP proceedings and submitted a written presentation. The applicant’s commander found he committed the offense and punished him by reducing him in grade, assigning him extra duty, and a reprimand. The applicant was notified of his right to appeal and he appealed. The applicant’s appeal was denied and he was notified the NJP would be filed in a UIF. After the NJP, the applicant went through a dual processing separation for mental health and misconduct. During the process, it was decided he would be discharged on a mental health basis. In that [SAFPC] letter, it directs he is to be discharged at the highest grade held at the time of discharge. His DD 214 reflects he separated in the grade of airman first class (E-3). The applicant is misstating the letter from SAF/MIBP, dated 13 Jun 01.  The board did not give him a stripe back; rather, they determined his discharge would reflect it was for mental health reasons; not disciplinary. The applicant was afforded due process and was given the opportunity to submit matters in mitigation, extenuation, or defense. The commander at the time would have been the best person to evaluate the evidence and make a decision on the appropriateness of the NJP action.

The applicant was given due process; therefore, it is recommended the Board not grant relief as no error or injustice was found with the NJP process.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.
AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice with regards to the applicant’s request to change the applicant’s grade on his DD Form 214. DoDI 1336.01, states “The DD Form 215 will be used to correct errors in the DD Form 214.” AFI 36-3202 states, “Once a DD Form 214 has been issued, do not reissue it unless…the following applies:” Directed by an appellate authority, by Executive Order, or by the Office of the Secretary of the Air Force; Character of Service, Separation Authority, Separation Code, Narrative Reason for Separation or Dates of Time Lost During This Period require correction; to correct a DD Form 214 would lead to more than two DD Form 215s, or a subsequent DD Form 215 corrects the same item as previously corrected using a DD Form 215. On 14 Sep 04, the applicant’s DD Form 214 was amended in a manner as directed by governing directives to correct his grade at time of separation from the grade of airman first class (E-3) to the grade of senior airman (E-4). The use of the DD Form 215 for such a correction is accurate and equitably used by all branches of service in the same manner. As the applicant’s DD Form 214 is prepared according to applicable directives, and no evidence was provided to  the contrary that the DD Form 215 that reflected a higher grade imposed an injustice, it is recommended to deny his request.

A complete copy of the AFPC/DPSOR evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 7 Jul 15 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:
After careful consideration of applicant’s request and the available evidence of record, we find the application untimely. Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner.

THE BOARD DETERMINES THAT:
The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2014-05206 in Executive Session on 26 Aug 15 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A.	DD Form 149, dated 19 Dec 15, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFLOA/JAJM, dated 13 Feb 15. Exhibit D.	Memorandum AFPC/DPSOR, dated 7 Jul 15 Exhibit E.	Letter, SAF/MRBR, dated 9 Jul 15.