RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2017-00938

 						COUNSEL:   

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His Article 15 issued to him on 16 Apr 08 be removed from his records.  

APPLICANT CONTENDS THAT:

In accordance with AFI 36-2907, Unfavorable Information File (UIF), Article 15 actions and UIFs are removed from the records of enlisted personnel after two years.  However, this Article 15 has been lingering in his record for nine years.  Additionally the verbiage in the Article 15 paints a different picture than what actually happened.  The event occurred when he was young, immature and impressionable.  The Article 15 has served its intended purpose.

It was determined in his Article 15 hearing by his commander that the event between him and his co-worker was consensual.  After the Article 15, he made a conscious decision that this would never happen again.  He has grown immensely as a person and as a leader.  He received the Article 15 nine years ago while in the Air Force and it was the only one he has received in his entire career.  

After his discharge from the Air Force, he became a warrant officer in the Army.  He has deployed to Iraq in support of Operation INHERENT RESOLVE (OIR) and has received outstanding officer evaluation reports.  

This was an isolated incident.  There have been no other complaints from his subordinates, peers or chain of command regarding his character or ability to lead soldiers.  He asks that the Article 15 be removed from his record and he be allowed to move forward.  

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

STATEMENT OF FACTS:

The applicant is in the Regular Army serving in the grade of Chief Warrant Officer 2 (CW2).  

On 2 Feb 05, the applicant entered a period of active duty in the Regular Air Force and was honorably discharged on 2 Feb 09.  He was credited with 3 years, 6 months and 1 day of active duty service.  

The applicant received a referral enlisted performance report (EPR) for the reporting period ending 1 Apr 08.  The reason for the referral report was an inappropriate relationship with a co-worker which led to his removal as the shift leader.  

According to AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt), dated 2 Apr 08, the applicant received an Article 15 for committing an indecent act with a female co-worker in the female restroom at the dining facility.  He was reduced to the grade of airman first class (A1C), with a new date of rank of 16 Apr 08. 

AFI 36-2907, Unfavorable Information File, Table 2.2, states the disposition of a UIF upon completion of punishment, suspension or vacated judgment is two years from the date the commander signs AF Form 3070.  

AFI 51-202, Nonjudicial Punishment, paragraph 6.8, states the Staff Judge Advocate (SJA) will forward Article 15 actions on Technical Sergeants (TSgt) and below to AFPC/DPSIRR for filing of the original record of NJP in records.  

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 C.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  There is insufficient evidence or allegation of an error or injustice that undermines the Nonjudicial Punishment (NJP) action the applicant received.  The applicant also does not provide any explanation why the request to correct his records was not made within three years of the action.  His application could be denied on the basis of any legal error in his NJP action for timeliness alone.  Whether clemency is warranted due to the applicant’s record of service in the Army is a matter within the discretion of the BCMR.

A commander considering a case for disposition under Article 15 exercises discretion whether punishment is warrant and if so, the nature and extent of the punishment.  The exercise of that discretion should generally not be reversed or changed on appeal by the Board absent good cause.  The commander at the time of the NJP had the best opportunity to evaluate the evidence and determine what action would best maintain good order and discipline and promote a positive behavior in the applicant.  The commander’s ultimate decision to impose NJP was firmly based on the evidence of the case, including the extenuating and mitigating information provided by the applicant.  

There is no basis in law to suggest his NJP is an injustice warranting correction.  However, the BCMR is encouraged to assess his petition for clemency, including the consensual nature of the incident leading to the NJP, the character of his military service since receiving the NJP and the impact of the NJP on his Army career.  All these matters should be considered, along with other information submitted by the applicant in determining whether any form of clemency is warranted.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In regards to the issue of timeliness, he served the remainder of his commitment to the highest degree following the NJP and received commendable ratings despite the setback.  Therefore, he was afforded the privilege to serve in the Army as an Attack Pilot.  During the selection process, the Army was fully informed of his past NJP and it was not a factor in his proceeding with the aviator program.  It was not until the implementation of new Army promotion policies which stipulated a 10 year look back that the NJP came to light.  As a result, his promotion to CW3 is on hold.  It has been a long arduous journey and it is of utmost humility he requests removal of the NJP.

A lesser punishment would have had the same effect since he never received any prior negative counseling or reprimand.  He requests clemency.  After the event he continued to be an outstanding airman and was honorably discharged from the Air Force.  He transferred to the Army under the Warrant Officer Flight Program to pursue his dream of being a helicopter pilot.  He always strived to be the best and graduated as a Distinguished Honor Graduate.

He concluded a tour of duty in Korea for 36 months where he became a pilot in command and a maintenance test pilot as a junior officer.  He deployed to Iraq from 2014 to 2015 in support of OIH and participated in direct combat engagements.  He also recently completed a tour in the eastern European theater in support of Operation ATLANTIC RESOLVE.  He has surpassed 2,000 flying hours and has received nothing but outstanding officer evaluation reports (OERs) and performed in positions well beyond his pay grade.  His most recent accomplishment was his selection to the Army’s Experimental Test Pilot Program which will include a deployment to Afghanistan.   He has completed a bachelor’s degree in aeronautical science and a master’s of science degree in systems engineering.  

The NJP has caused an unfair, unjust and unwarranted action to his military career.  He has served his nation with the Air Force, conducted a tour of duty to South Korea and Pacific Countries, fought against the Islamic State in Iraq and Syria (ISIS), forward deployed to deter Russian aggression and continues to serve with an upcoming combat deployment to Afghanistan.  He does not know what else he can do to warrant clemency in his case.  He served the punishment and has moved on from the tribulation which occurred a decade ago.  He would like to be afforded the opportunity to continue moving forward without any lingering emotional and psychological trauma due to the NJP.  

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

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 comments; however, we do not find his assertions sufficiently convincing to override the evidence of record or the rationale provided by AFLOA/JAJM that there is insufficient evidence of an error or injustice that undermines the NJP action.  The applicant contends the Article 15 should have only remained in his record for two years; however, AFI 36-2907, Unfavorable Information File (UIF), which requires UIFs to be destroyed after two years does not pertain to the filing of NJP actions in the master personnel records.   We note AFLOA/JAJM indicates the Board can consider whether clemency is warranted.   However, given we find no error or injustice in the applicant’s NJP, we find no reason to grant relief on this basis.  Therefore, we agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale 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-2017-00938 in Executive Session on 24 Feb 18 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 24 Jan 17, w/atchs.
	Exhibit B.  Excerpts of Personnel Records
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 31 Oct 17.
	Exhibit D.  Letter, SAF/MRBC, dated 11 Dec 17.
	Exhibit E.  Letter, Applicant, dated 1 Jan 18, 
			  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.