RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-05333
		
                		     COUNSEL:  						                         HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

The record of his non-judicial punishment (NJP) that was then set aside be removed from his military personnel record. 

The AF Form 910, Enlisted Performance Evaluation, for the period from 11 May 09 to 8 Jul 10 be removed from his military personnel record.

APPLICANT CONTENDS THAT:

Through counsel, the applicant contends he was erroneously punished under Article 15 of the Uniform Code of Military Justice (UCMJ), for an offense he did not commit.  This punishment was later set aside when evidence presented during the General Court-martial of another Air Force member demonstrated the applicant’s innocence.

The Air Force continues to maintain the record of his initial NJP and the set aside action which is inconsistent with AFI 51-202, Non-judicial Punishment. The applicant is pursuing a career in medicine and these records indicate involvement with a Schedule III, controlled substance. The availability of these records to medical schools and licensing boards places the applicant in a position of continually defending himself against these allegations already proven to be unfounded.

Additionally, the applicant’s record also contains an AF Form 910, Enlisted Performance Evaluation, with a closeout date of 8 Jul 10 with a reference to the applicant’s non-judicial punishment.

AFI 51-202, paragraph 5.7.2 states that setting aside a punishment in its entirety restores the member to the position held before the imposition of punishment, as if the Article 15 action had never been initiated. Thus, maintaining these records in the applicant’s military record is a continuing error and poses a significant injustice in his life following his military service.  

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

STATEMENT OF FACTS:

On 27 Nov 01, the applicant initially entered active duty in the Regular Air Force.  

On 21 May 10, the Commander, 24 Special Tactics Squadron, administered Article 15, Non-Judicial Punishment, against the applicant for wrongful possession of a Schedule III, controlled substance.  The applicant consulted with counsel, waived his right to court-martial, and provided his commander a written presentation.  The applicant did not appeal the commander’s decision.

In Aug 10, the applicant received a referral AF Form 910, Enlisted Performance Report with a closeout date of 8 Jul 10. The rating in Section III, Performance Assessment, Item 2 Standards, Conduct, and Military Bearing is “Does Not Meet Standards” with a narrative comment noting the applicant received non-judicial punishment under Article 15 for wrongful possession.  

On 26 Apr 11, the applicant requested the Commander, 48 Rescue Squadron, set aside the Article 15, Non-Judicial Punishment he received in May 10. 

On 6 Jun 11, the Commander, 48 Rescue Squadron, set aside the applicant’s Article 15, Non-Judicial Punishment action.   

On 31 Oct 11, the applicant was discharged with an honorable discharge, and was credited with 9 years, 11 months, and 4 days of active service.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C, D, and E.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to remove the Article 15 non-judicial punishment and subsequent set aside actions from the member’s military personnel record.  This recommendation is based on the requirements of AFI 51-202, paragraph 5.9 which provides that all requests to suspend, mitigate, remit, or set aside punishment and any actions taken in response should be processed and filed with the original Article 15 and any other official file copies. Maintaining these records is to the benefit of the Air Force and applicant because it ensures the applicant’s military record is accurate and complete.  Anyone accessing the applicant’s record would be informed of the set aside action and that the original action was unjust and unwarranted. 

A complete copy of AFLOA/JAJM evaluation is at Exhibit C.

AFPC/JA concurs with the AFLOA/JA recommendation to deny the applicant’s request to remove the NJP and set aside action from his military record.  As pointed out, there are reasons to retain the complete record of the entire NJP proceedings.  From a legal perspective, a set-aside means that the member does not have an NJP in the official record.  If the Air Force were asked if this member had an NJP in his/her record, the correct and required answer would be no.  Legally speaking, it does not exist.  However, it is a historical fact that the applicant did receive NJP that was later set-aside.  It is not error or unjust for the Air Force to maintain these records as from time to time demonstrating that history may be required.  As to the applicant’s enlisted performance evaluation, AFPC/JA recommends it be expunged from the member’s record because it contains direct reference to the NJP action.

A complete copy of the AFPC/JA evaluation is at Exhibit D.

AFPC/DP2SPE recommends granting the applicant’s request to void the AF Form 910, Enlisted Performance Report (EPR) with closeout date of 8 Jul 10.  Voiding the report which references the NJP action is consistent with the evidence presented to set aside the NJP.  

A complete copy of the AFPC/DP2SPE evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant’s counsel on 6 Sep 16 for review and comment within 30 days (Exhibit F).  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 is timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error of injustice to warrant removing the record of NJP and the applicable set aside action from the applicant’s military record.  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 AFLOA/JAJM and AFPC/JA and adopt the rationale expressed as the basis for our conclusion 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 this portion of the applicant’s request.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant voiding and removing the applicant’s AF Form 910, Enlisted Performance Report with closeout date of 8 Jul 10. We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of AFPC/DP2SPE and adopt its rationale as the basis for our conclusion that voiding and removing this report is consistent with the NJP set aside action. Therefore, we recommend the applicant's records be corrected as indicated below.

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the AF Form 910, Enlisted Performance Report (AB thru TSgt) rendered for the period from 11 May 2009 through 8 July 2010 is declared void and removed from his records.

The following members of the Board considered AFBCMR Docket Number BC-2015-05333 in Executive Session on 16 February 2017 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 8 Dec 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 13 Jun 16.
	Exhibit D.  Memorandum, AFPC/JA, dated 21 Jun 16.
	Exhibit E.  Memorandum, AFPC/DP2SPE, dated 5 Aug 16.
     Exhibit F.  Letter, SAF/MRBR, dated 6 Sep 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter pertaining to AFBCMR Docket Number BC-2015-05333.