RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-01848

						COUNSEL: 

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1.  His Article 15, with the resulting demotion to Staff Sergeant which caused his separation due to High Year of Tenure (HYT), be set aside/removed from his military record.

2.  He be returned to active duty as a Technical Sergeant, or alternatively, be allowed to continue his career in the Air National Guard or Air Force Reserve.

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, contends the applicant received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for a crime he did not commit.  The NJP action was based solely on memorandums for record provided by the applicant’s acting First Sergeant and an individual working at the fitness center at Travis Air Force Base, California.

None of the documents used to support the NJP action could be located by the Air Force when the applicant submitted a Congressional complaint regarding the irregularities in the NJP process.

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

STATEMENT OF FACTS:

On 24 Mar 99, the applicant initially entered the Regular Air Force.

On 29 Dec 14, the applicant received nonjudicial punishment under Article 15 of the UCMJ, for with the intent to deceive, altering an Air Force Form 422, Notification of Air Force Member’s Qualification Status, and his Air Force Fitness Management Report of Individual Fitness, to wit:  modifying both forms which modifications and additions were totally false, and were known by him to be false, in violation of Article 107 of the UCMJ.  He received a reprimand and was reduced to the rank of Staff Sergeant (E-5), with a date of rank of 29 Dec 14.

On 5 Jan 15, the applicant submitted an appeal to the NJP action.  The appeal was denied by the commander and Appellate Authority on 9 Jan 15 and 29 Jan 15, respectively.

On 29 Apr 15, the applicant was furnished an Honorable discharge, with Separation Code LCC, Reentry Code 4D, Narrative Reason of Reduction in Force, and credited with 16 years, 1 month, and 6 days active service.

On 17 Nov 15, according to documentation provided by the applicant, SAF/LL responded to the applicant’s request, through the office of his congressional representative, for records pertaining to the NJP action.

On 18 Mar 16, according to documentation provided by the applicant, SAF/LL responded to the applicant’s request, through the office of his congressional representative, for copies of his fitness assessments.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit D.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, indicating there is no evidence of error or injustice.

The applicant stated the documents used to support his NJP action—the actual fitness tests he is alleged to have altered—are unavailable.  Air Force Instruction (AFI) 51-202, Nonjudicial Punishment, paragraph 6.11, details what documents are retained in Air Force records, and paragraph 6.12 explicitly excludes such information from being retained in an individual’s personnel file.

Additionally, the applicant stated he was not served with copies of all the evidence the commander relied on as required, e.g. the fitness reports he is alleged to have altered.  AFI 51-202, paragraph 3.5, provides that after a member is notified of an NJP action “that member and his counsel have a right to examine all statements and other evidence that the commander has examined” and that “members are normally provided a copy of the documentary evidence.”  This paragraph merely requires the commander to provide to the member all evidence that they intend to rely on when arriving at a punishment decision.  It does not require the member to be provided all possible documents which may exist.

JAJM found no evidence to suggest the applicant’s conviction and sentence were unsupported in law or fact.  NJP was within the commander’s authority, as was the specific punishment imposed.  In accepting NJP, the applicant accepted a forum where his commander assessed the evidence and made a determination as to his guilt and appropriate punishment.

Whether clemency is warranted based on applicant’s personal statement and matters submitted is within the discretion of the BCMR.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel, on behalf of the applicant, reiterates his position that the Article 15 proceeding was flawed as the applicant was not provided copies of the fitness test documents he was purported to have altered to reflect a passing fit score, and removal of the Article 15 is the only remedy for that flaw.

A complete copy of the Counsel’s Response is at Exhibit G.

The applicant states he believes there were statements and evidence missing, and is confused by some points in the advisory opinion.  The applicant states he was never told he needed a written affidavit from his counsel stating he did not receive evidence presented in his case.  Further, the applicant lists those documents he did receive, and which he did not receive.  He did have copies of all documents he provided to the Noncommissioned Officer Academy.  Finally, he points out there is no mention of his AF Form 422, Notification of Air Force Member’s Qualification Status, which he was charged with falsifying, with no evidence provided.

A complete copy of the Applicant’s Rebuttal is at Exhibit H.

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, to include his rebuttal, in judging the merits of the case; however, we agree with the opinion and recommendation of the 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 or injustice.  After reviewing the evidence of record, it appears his NJP action, and subsequent separation due to HYT, were proper and in compliance with the appropriate guidance in effect at that time.  We also noted the comments of AFLOA/JAJM indicating relief should be denied as the conviction and sentence were supported in law.  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-2016-01848 in Executive Session on 5 Jun 18 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01848 was considered:

	Exhibit A.  DD Form 149, dated 7 May 16, w/atchs.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Letter, Applicant’s Counsel, dated 12 May 16,
	w/atch.
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 11 Jan 17.
	Exhibit E.  Letter, AFBCMR, dated 2 Jun 17, w/atch.
	Exhibit F.  Letter, Applicant’s Counsel, dated 24 Jun 17.
	Exhibit G.  Letter, Applicant’s Counsel, dated 9 Jul 17.
	Exhibit H.  Letter, Applicant’s Rebuttal, dated 27 Jul 17.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations regarding AFBCMR Docket Number BC-2016-01848, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.