RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-02714

	COUNSEL: NONE

	HEARING: NO

APPLICANT’S REQUEST.  That his non-judicial punishment (NJP) be set-aside.

APPLICANT’S CONTENTION.  His commander imposed NJP based on a personal animus by his supervisory chain, which was based on misleading and selective evidence.  His due process rights were violated because his counsel was not permitted to accompany him to his personal appearance before the commander and his counsel was denied access to all of the evidence upon which the NJP was based.   The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS.  The applicant is a retired Air Force Colonel.  The applicant was charged with violation of Article 89, Uniformed Code of Military Justice (UCMJ), one charge and one specification of cruelty and maltreatment in violation of Article 93, UCMJ, and one charge and two specifications of conduct unbecoming an officer and gentleman in violation of Article 133, UCMJ. 

The commander found the applicant had committed the offenses alleged and imposed a punishment of forfeiture of $4,769 pay for one month and rendered a reprimand; the applicant did not appeal the findings or punishment.  Legal reviews completed found the NJP was legally sufficient.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION.  AFLOA/JAJM recommends denying the application.  The applicant claims he was denied the opportunity to have his attorney accompany him to his personal appearance before his commander; he provides an affidavit from his then Area Defense Counsel (ADC) stating his counsel recalled asking to accompany the applicant to the personal appearance, but was denied.  He also argues the NJP was based on a flawed Unit Climate Assessment (UCA) that was a ploy designed to specifically target him; however, JAJM cannot determine whether if the commander relied on the UCA in administering the NJP and do not recommend any relief.  And finally, he claims his ADC was not provided a copy of the Commander-Directed Inspection (CDI) upon which the NJP was based.  Nevertheless, it is not clear as to whether and to what extent the CDI was relied upon in administering the NJP; JAJM has no basis to question the integrity of the evidence upon which the commander relied.  Only so much of the applicant's requested relief that calls into question the legal sufficiency of his NJP is within JAJM’s purview, and they find no evidence to suggest the NJP was unsupported in law.  In his request to the commander that the NJP not be placed in his record, the applicant, stated “I have accepted full responsibility for my actions that adversely affected my command.”  In light of this admission, and considering all of the information available, the NJP appears well within the commander's discretion, and they find no basis to set aside the commander's action in this case.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION.  The Board sent a copy of the Air Force evaluation to the applicant on 7 Feb 18 for comment (Exhibit E), and the applicant replied on 21 Jan 17 [sic].  In his response, the applicant reiterates some of his original contentions, but also provides a detailed account of the events that led to his NJP.  He requests that the statute of limitations provisions be waived.  The applicant’s complete response is at Exhibit E.

THE BOARD CONCLUDES:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.  

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with AFLOA/JAJM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  Therefore, the Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.

THE BOARD RECOMMENDS:  The APPLICANT be informed that the application was not timely filed; that it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION: The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered AFBCMR Docket Number BC-2016-02714 in Executive Session on 28 Mar 18:

, Panel Chair
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A: Applicant’s application, DD Form 149, dated 4 Jul 16, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, AFLOC/JAJM, dated 5 Feb 18.
Exhibit D: Notification of Advisory, SAF/MRBR to applicant, dated 8 Feb 18.
Exhibit E: Applicant’s response to Exhibit C, dated 21 Jan 17 [sic].

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.