RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01482

 						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His Article 15 and corresponding punishment be removed from his record.

APPLICANT CONTENDS THAT:

He had an approved separation date of 3 August 2015 but was involuntarily extended on active duty through 31 March 2016 as a result of an investigation by the Air Force Office of Special Investigations (AFOSI) and for the AFOSI/CC to issue punishment.  

On 20 January 2016, he was offered an Article 15.  On 25 [sic] January 2016, he submitted a rebuttal response and accepted the Article 15.  The only reason to involuntarily extend him would have been for court-martial per AFI 36-3207, Separating Commissioned Officers, paragraph 1.11, which states “You are to be processed for separation when advised by the Staff Judge Advocate (SJA) that charges will not be preferred.”  

On 30 March 2016, he was involuntarily extended again through 30 April 2016.  The administrative hold was lifted when he submitted an Inspector General (IG) and Congressional complaint against his chain of command.  

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

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 16 June 2008.

On 16 December 2015, the 96th Test Wing Judge Advocate (96 TW/JA) requested AFPC/DPSOS place the applicant on administrative hold through 1 May 2016 for reason of court-martial.  

According to AF Form 3070C, Record of Nonjudicial Punishment Proceedings (Officer), dated 12 January 2016, the applicant received an Article 15 for assault consummated by a battery (three specifications) and conduct unbecoming an officer.  Punishment included a reprimand and forfeiture of pay in the amount of $2,770 per month for two months.  On 1 April 2016, the Air Force District of Washington Commander (AFDW/CC) determined the Article 15 would be filed in the applicant’s Officer Selection Record (OSR).  On 5 April 2016, the general court-martial authority staff judge advocate determined the Article 15 record was in compliance with AFI 51-202, Nonjudicial Punishment, and Part V of the Manual of Military Court-Martial (MCM).  

On 29 January 2016, the 96 TW/JA requested AFPC/DPSOS place the applicant on administrative hold through 30 March 2016 for reason of court-martial.

On 28 March 2016, the 96 TW/JA requested AFPC/DPSOS place the applicant on administrative hold through 30 April 2016 for reason of court-martial.

On 29 April 2016, the applicant was honorably discharged with a narrative reason for separation of “Completion of Required Active Service.”   He was credited with 7 years, 10 months and 14 days of active duty service.  

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

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  There is no evidence of a legal error in the applicant’s Nonjudicial Punishment (NJP) action, nor does he make such an allegation.  AFLOA/JAJM defers to AFPC as to whether the applicant’s extension on active duty beyond 30 January 2016 was improper based on the requirements of AFI 36-3207.  

During the relevant timeframe, the applicant was an AFOSI agent.  An investigation was initiated into whether he had been involved in physical altercations with his girlfriend on three occasions in the fall of 2014 and whether he wrongfully failed to disclose certain information about his past behavior and cohabitation with this girlfriend during a Federal Bureau of Investigation (FBI) Personal Security Interview (PSI).   Based on the investigation, the applicant was notified by his commander on 20 January 2016 of his intent to impose NJP for assault consummated by a battery (three specifications) in violation of Article 128, Uniform Code of Military Justice (UCMJ), and conduct unbecoming an officer for the PSI issue in violation of Article 133, UCMJ.  On 27 January 2016, the applicant accepted the NJP, had the opportunity to consult with legal counsel, submitted written matters in his own behalf and declined to request an in-person hearing before his commander.  The applicant’s appeal was denied by both the commander who served the NJP and the appellate authority.  On 4 and 5 April 2016, respectively, judge advocates from the 96 TW and Air Education and Training Command (AETC) determined the NJP was legally sufficient.  Also, the reviewing authority determined the NJP should be filed in his OSR.  

The applicant is not contesting the underlying misconduct that led to the NJP.  Instead, he argues he was improperly held past his separation date while the NJP was being processed and therefore the NJP should be removed from his record.  AFI 36-3207 states an officer’s Date of Separation (DOS) can be extended when the staff judge advocate advises AFPC that “action has been taken against the officer with a view to trial by court-martial.”  This provision stems from 10 U.S.C. § 639 which states, when an action has been commenced against an officer with a view towards court-martial and such officer is to be separated, the military department may delay the separation of the officer until completion of the action.  Such action can include the initiation of a military investigation into alleged criminal conduct by the officer.  In this case, the Air Force was on notice regarding the significant allegations of misconduct involving the applicant.  The applicant contends the Air Force no longer had a view towards trial by court-martial once he was served and accepted the NJP; however, the applicant’s NJP was not finalized as the reviewing authority had not yet made a decision regarding whether the NJP action should be filed in his OSR and the legal reviews of the NJP had not been conducted.  Those events were completed on 5 April 2016, within the time frame covered by the 60 day extension request, and he left active duty on 29 April 2016.    

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

AFPC/DP2STM-SEP provides their advisory for informational purposes and makes no recommendation.  On 29 January 2016, the Separations Office received a letter from the 96 TW/JA dated 29 January 2016 requesting a 60 day extension of the applicant’s DOS in order to complete court-martial action.  However, no action was taken because the requested DOS was 30 March 2016 and they had already processed the 16 December 2015 request extending his DOS to 1 May 2016.  On 28 March 2016, the Separations Office received a letter from the 96 TW/JA dated 28 March 2016 requesting an involuntary 30 day DOS extension for the purpose of completing court martial action.  However, once again, no action was taken because the DOS was for 30 April 2016 and his DOS had previously already been extended to 1 May 2016.  On 6 April 2016, the 96 TW/JA requested release of the applicant from involuntary hold.  After coordinating with the base to determine an appropriate separation date to allow the applicant time to out-process, a DOS of 29 April 2016 was established.  The applicant was subsequently honorably separated on 29 April 2016.

AFI 36-3207, paragraph 1.11, allows for AFPC to extend an officer’s DOS when advised by the SJA that action has been taken against the officer with a view to trial by court martial.  The 96 TW/JA provided letters requesting to extend the applicant’s DOS based on the provisions of this Air Force instruction.  Therefore, the extension of the applicant’s DOS was done in accordance with established procedures and guidance.

The errors with the two letters prepared by 96 TW/JA on 26 January 2016 and 29 March 2016 did not result in an injustice to the applicant with regards to the applicant’s DOS.  The letters were not needed as the applicant’s DOS was already extended to 1 May 2016 based on the 16 December 2015 letter advising them the applicant was facing potential court martial action.  

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit D.  

AFPC/JA recommends denial.  The applicant has failed to prove any material error or injustice warranting relief.  The applicant applied for voluntary separation in February 2015 and on 6 April 2015, he received orders to separate on 3 August 2015.  Shortly after receiving his orders, the AFOSI received notice the applicant had allegedly assaulted his then-girlfriend on several occasions during the fall of 2014.  An investigation was initiated on 2 June 2015 and the Report of Investigation (ROI) was completed on 16 October 2015.  Because of the seriousness of the charges, a court-martial was likely to occur.  The applicant challenges the Article 15 claiming he should have been released from active duty upon acceptance of the Article 15 because at that point there was no longer a view towards court-martial.  In this case, the applicant’s commander contemplated preferring court-martial charges against the applicant; thus, it was proper to involuntarily extend him.  The commander ultimately opted to offer the applicant an Article 15 instead.  Had the applicant not accepted the Article 15, his commander would have preferred charges.  Furthermore, had additional incriminating evidence surfaced during the Article 15 proceedings, his commander would have preferred charges.  Thus, until the Article 15 was finalized on 4 [sic] April 2016, the SJA could not be certain charges would not be preferred.  Moreover, contrary to his claim that he was twice involuntarily extended after accepting the Article 15, AFPC processed the final extension request on 16 December 2015, more than a month before he accepted the Article 15.  His DOS was set at that time for 1 May 2016.  Once the Article 15 was finalized, the SJA advised AFPC to release the applicant, almost a month prior to his established DOS, as required by the AFI.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He rebuts the conclusion of the Air Force evaluations.  The military investigation concluded on 16 October 2015.  His commander then took three months to decide whether or not to prefer charges against him.  On 20 January 2016, he elected not to charge him and he was offered NJP.  On 27 January 2016, he accepted the Article 15 but provided a rebuttal in which he submitted evidence that should have sufficiently dismissed all of the specifications in the Article 15; especially given the “victim’s” lack of credibility and rampant lies that were discovered during the course of the investigation.  At this point, there was no view towards court- martial.  When an Article 15 is offered and accepted, regardless of whether there is a rebuttal or appeal, there is no longer a view towards court-martial.

An Article 15 is not a court-martial.  It is bewildering that he has to explain what court-martial actions are to senior level judge advocates.  The basis for allowing the involuntary extensions is flawed and illegal.  He was legally allowed to separate the day the involuntary extension expired on 29 January 2016 and as a result, the Article 15 should not have been entered into his records since he should not have been on active duty after this point.

The extension of his DOS to 1 May 2016 on 16 December 2015 is a further violation of the AFI to extend him under the umbrella of two separate involuntary extension letters to ensure it was covered.  His DOS was extended to 1 May 2016 because there was a potential for court-martial and that a decision had not been reached as to whether he was going to be charged or not, although at this point, his commander had the report of investigation for two months, ample time to make a decision.  Once he accepted the Article 15, there was no longer a potential for a court martial.  There was no reason to believe additional allegations would arise during the Article 15 proceedings and there is no regulation allowing for an involuntary extension based on the possibility of random allegations surfacing. 

If his appeal is overlooked or denied, he intends to invoke a Congressional action to ensure justice and fairness in his case.  Any reasonable person who understands the military justice system knows that NJP is not a court-martial action and once accepted, cannot be utilized as a premise toward court martial.  

The applicant’s complete submission is at Exhibit G.  

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 injustice.  The applicant contends his NJP action should be removed from his records because he was unjustly involuntarily extended until his separation on 29 April 2016 although he had accepted NJP on 27 January 2016.   The applicant by his own admittance states he was involuntarily extended as a result of an AFOSI investigation and determination as to his punishment but asks the Board to void the action because he should have been separated prior to the finalization of the NJP. As pointed out by the Air Force offices of primary responsibility (OPR), AFI 36-3207 permits officers to be extended on active duty when an action has been commenced with a view towards trying such officer by court-martial.  In this respect, the applicant should be advised that NJP action is not considered final solely based on a member’s acceptance of the punishment and AFI 51-202 requires appropriate levels of review by higher level commanders and staff judge advocates to ensure due process and legal sufficiency.  In the applicant’s case, the NJP was finalized on 5 April 2016.  He was then released from the involuntary extension on the following day (6 April 2016) and a separation date of 29 April 2016 was established to permit completion of all out-processing actions.   Given the seriousness of the applicant’s misconduct and the required levels of review of the NJP action, we find the applicant’s contention he was unjustly extended on active duty without merit.  Furthermore, we find the retention of his NJP action in his OSR proper and fitting given the nature of his misconduct which included assault and failure to disclose information during a FBI PSI while serving as an AFOSI officer and we find no reason it should be removed from his records.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) 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 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 RECOMMENDS 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-2016-01482 in Executive Session on 1 June 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
      , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 7 April 2016, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 22 Sep 16,

			  w/atchs.
	Exhibit D.  Memorandum, AFPC/DP2STM-SEP, dated 18 November 
			  2016.
	Exhibit E.  Memorandum, AFPC/JA, dated 30 November 2016.
	Exhibit F.  Letter, AFBCMR, dated 7 December 2016.  
	Exhibit G.  Letter, Applicant, dated 22 December 2016.  

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.