RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00281
		INDEX CODE:  131.05, 126.04

	 	COUNSEL:  NONE

	 	HEARING DESIRED: YES

MANDATORY CASE COMPLETION DATE:  25 MAY 2006

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APPLICANT REQUESTS THAT:

His rank of staff sergeant (E-5) be reinstated to the original date of rank (DOR) and his Article 15 (3 Feb 02) which the reduction in grade was based on be set aside.

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APPLICANT CONTENDS THAT:

His commander made untruthful statements on the AF Form 3070 (Record of Nonjudicial Punishment Proceedings) and there are legal and equitable issues noted in his attorney’s appeal letter.

In support of his appeal, applicant submitted his personal statement; a copy of his Area Defense Counsel’s (ADC) appeal letter, dated 6 Feb 02; Security Police OI 31-202; his civilian counsel’s statement, dated 28 May 02, and other supporting documents.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Based on available records, applicant served in the Regular Air Force from 12 Jun 75 until he was released from active duty and transferred to the Air Force Reserve on 22 May 78.  Prior to the events under review, applicant was promoted to the grade of staff sergeant with an effective date and date of rank of 29 Sep 87.

On 28 Oct 01, applicant was recalled to active duty.  On 31 Jan 02, applicant received non-judicial punishment for willfully failing to follow proper turn-in and clearance procedures for a loaded M-16 rifle, on or about 12 Jan 02.  On 3 Feb 02, after consulting with counsel, applicant waived his right to demand trial by court-martial and accepted the nonjudicial punishment.  He submitted a written presentation and made a personal appearance before his commander.  His commander determined he had committed the offense alleged and imposed punishment consisting of reduction to the grade of senior airman, with a new date of rank of 3 Feb 02.  He appealed the punishment; however, the appeal was denied.

On 28 Apr 03, applicant was demobilized and returned to his Reserve unit.  He is currently serving in the grade of staff sergeant, having been promoted to that grade on 1 Mar 03.

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AIR FORCE EVALUATION:

AFLSA/JAJM addressed the applicant’s request in regards to the 31 Jan 02 Article 15 and recommended no relief be granted.  The applicant was accused of dereliction of duty in violation of Article 92, UCMJ.  After consulting with defense counsel, applicant accepted non-judicial punishment rather than demanding trial by court-martial.  Following consideration of the evidence, applicant’s commander determined that he committed the offense alleged and imposed punishment of reduction to the grade of senior airman (E-4).  Applicant appealed the decision, and his civilian defense attorney wrote an appeal memorandum on behalf of the applicant.  The appeal was denied and the record was found legally sufficient.

JAJM indicates that nonjudicial punishment is authorized by Article 15, UCMJ, and governed by the Manual for Courts-Martial and Air Force Instruction 51-202.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Service members first must be notified by their commanders of the nature of the charged offense, the evidence supporting the offense, and of the commander’s intent to impose nonjudicial punishment.  Commanders may recommend that a superior commander make findings and impose punishment under Article 15, UCMJ.  The service member may then consult with a defense counsel to determine whether to accept nonjudicial punishment proceedings or demand trial by court-martial.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.

JAJM states by electing to resolve the allegation in the nonjudicial forum, applicant vested his commander with the responsibility to decide whether he had committed the offenses.  The commander had to weigh all the evidence, including the applicant’s assertions, and make his decision.  In this case, the commander concluded that applicant was derelict in the performance of his duties.  There was sufficient evidence for the commander to determine the offense had been committed.  Applicant contends then, as he does now, that he was not properly trained and certified to perform armorer duties.  However, when he responded to the offer of nonjudicial punishment the applicant admitted in writing that he was derelict and there was no excuse for his action.  Applicant indicates he did not know specialized training was required nor was he aware of any certification until after the accident.

A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicated in his response that the position of armorer is an additional duty and requires additional training.  He further explained the circumstances surrounding the incident which subsequently led to his Article 15 and reduction in grade.

Applicant’s complete response is at Exhibit E.

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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 error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions or his supporting documentation sufficiently persuasive to override the rationale provided by the Air Force Legal Services Agency.  The commander had the discretionary authority to impose nonjudicial punishment under Article 15, UCMJ, when he concluded that reliable evidence existed to indicate an offense was committed.  When offered the Article 15, applicant had an opportunity to establish his innocence by demanding trial by court-martial.  However, he chose not to pursue this avenue and accepted the Article 15 instead.  By electing to resolve the allegation in the nonjudicial forum, the applicant placed the responsibility to decide whether he had committed the offense with his commander.  Applicant has not provided any evidence to sufficiently convince the Board that the commander abused his discretionary authority in imposing the Article 15 punishment or that the Article 15 action was contrary to the governing instruction.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2005-00281 in Executive Session on 26 May 2005, under the provisions of AFI 36-2603:

				 , Chair
				 , Member
				 , Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Jan 05, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 11 Apr 05.
    Exhibit D.  Letter, SAF/MRBR, dated 22 Apr 05.
    Exhibit E.  Letter, Applicant, dated 19 May 05.

 
                                   Chair