RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01293 
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

The AF Form 3212, Record of Supplementary Action Under Article 15, UCMJ, in his Senior Noncommissioned Officer Selection Record (SNCOSR) and located in the “Derogatory” sub-folder in the Personnel Records Display Application (PRDA) be removed.

APPLICANT CONTENDS THAT:

The AF Form 3212, which remitted his suspended reduction in rank earlier than initially adjudged, is contained in his derogatory information file which, in turn, will show up in his SNCOSR despite the fact that the issuing commander determined the original Article 15, nonjudicial punishment (NJP) would not be filed in his SNCOSR.

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

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of Master Sergeant (E-7).

On 20 May 14, the applicant was notified of his commander’s intent to impose Article 15, NJP for one charge and one specification of violating a lawful general order in violation of Article 92, Uniform Code of Military Justice (UCMJ), and one charge and one specification of making a false official statement in violation of Article 107, UCMJ, as indicated on AF Form 3070B, Record of Nonjudicial Punishment Proceedings (MSgt thru CMSgt).

On 27 May 14, the applicant acknowledged receipt of the action, his right to appeal, and the SNCOSR notification.

On 31 May 14, the applicant submitted an appeal of the Article 15, NJP.

On 3 and 4 Jun 14, the applicant’s commander and the appellate authority, respectively, denied the applicant’s appeal; the commander indicated the action would not be filed in his SNCOSR as evidenced by AF Form 3070B, blocks 7, 8 and 9.  The applicant was reduced to the grade of Technical Sergeant (TSgt), suspended through 26 Nov 14, ordered to forfeit $493 pay per month for 2 months and reprimanded.

On 7 and 9 Jun 14, the applicant’s NJP was found legally sufficient as indicated on AF Form 3070B, blocks 12 and 13.

On 11 Sep 14, the applicant’s home station commander executed a supplementary action via AF Form 3212 remitting the grade suspension two months early.

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 granting the applicant’s request, indicating there is evidence of an error or injustice.  AFI 51-202, Nonjudicial Punishment, paragraph 4.8, states that the commander determines what gets filed in a member’s Selection Record and to follow the procedures in AFI 36-2608 for filing supplemental proceedings such as an AF Form 3212.  AFI 36-2608, Military Personnel Records System, Chapter 7, confirms that it is the commander who makes the decision of whether to file the action in a Selection Record, and that once the decision is made to exclude or include the records in the Selection Record that decision “may not be revoked”, paragraph 7.9.  Table A2.1, Item 162 specifically addresses the disposition of AF Form 3212s and indicates that supplemental actions should be filed in the record as an attachment to the NJP action “if the commander or review authority’s determination….results in a decision to file this document in these record groups.”  This is interpreted to mean, in plain language, that a supplementary action is only filed in the Selection Record if the original action to which it is attached has been filed in the record as well.

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

AFPC/JA recommends granting the applicant’s request, indicating there is evidence of an error or injustice.  AFI 36-2608, dated 30 Aug 06 and certified current as of 17 Sep 10, paragraph 8.4.1, states that when a commander decides not to file the record of NJP in the selection record, such decision is recorded by initialing the appropriate block in the AF Form 3070.  According to Table A2.1, Item 158, for the Field Record Group (FRGp), the AF Form 3212 is to be filed as an attachment to the AF Form 3070.  While the management and disposition instructions for filing of the AF Form 3212 in the SNCOSR are silent, the Table specifies for an Officer Selection Record (OSR) to “file as an attachment to AF Form 3070 if the commander or review authority’s determination under AFI 36-2608, Chapter 8, results in decision to file this document in these record groups.”  The Table then specifies for SCNOSRs that the AF Form 3212 should be removed and destroyed two years after effective date of punishment or after one SNCO evaluation board.  Thus, it is agreed with JAJM’s interpretation that a supplementary action is only filed in the selection record if the original action to which it is attached has been filed in the record as well.

In accordance with AFI 36-2608, paragraph 8.9, the decision to include or exclude the NJP in a selection record may not be revoked once it is filed in the Master Personnel Record Group (MPerRGp).  However, in this instance it is believed the supplemental NJP action was placed in the applicant’s selection record in error.  Still, per paragraph 8.11.6, the Article 15 is permanently retained in the MPerRGp (Correspondence and Miscellaneous Group) unless set aside in its entirety in accordance with AFI 51-202 or its removal is directed by the AFBCMR.

Based on the commander’s elections on the original AF Form 3070B, dated 27 May 14, not to file the NJP action in the applicant’s SNCOSR, it is recommended to grant the requested relief and direct that the AF Form 3212 be removed from the applicant’s SNCOSR.  However, both the AF Form 3070B and AF Form 3212 should remain filed permanently in the MPerRGp (Miscellaneous and Correspondence Group), and maintained in the Automated Records Management System (ARMS).

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 10 May 17 for review and comment within 30 days (Exhibit E).  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 timely filed.

3.  Sufficient 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 and agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt their rationale as the basis for our conclusion the applicant has been the victim of an error.  Therefore, we recommend the applicant's records be corrected as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected and remove the AF Form 3212, Record of Supplementary Action Under Article 15, UCMJ, dated 11 Sep 14, be removed from his Senior Noncommissioned Officer Selection Record.

The following members of the Board considered AFBCMR Docket Number BC-2016-01293 in Executive Session on 27 Jun 17 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records::

	 Panel Chair
	 Member
	 Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 22 Aug 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 28 Mar 17.
	Exhibit D.  Memorandum, AFPC/JA, dated 6 Apr 17
	Exhibit E.  Letter, AFBCMR, dated 10 May 17, w/atchs.

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.