RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-02803 INDEX CODE: 111.02, 126.04 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. The Article 15 punishment imposed on him on 28 Aug 06 be removed from his record. 2. The AF IMT 910, Enlisted Performance Report (EPR) (AB thru TSgt), for the period 4 Jul 06 to 20 Apr 07 (Referral Report) be removed from his records. 3. The Unfavorable Information File (UIF) be removed from his military personnel file. 4. He be refunded the $400 fine imposed as punishment in the Article 15 action. ________________________________________________________________ _ APPLICANT CONTENDS THAT: The applicant makes his arguments in a four-page statement with six attachments. He disputes he was in a restricted area, also that he willfully disobeyed a lawful order issued by his First Sergeant. If he was given an order to return to Osan AB, or go to a hotel, he would have obeyed it. The only direction he was given by his First Sergeant was to listen to Town Patrol Security Forces. No one told him he was not permitted to return to his friend’s house. It was late, the United States Forces Korea (USFK) curfew hours were about to come into effect within three hours, there was no transportation available that late in the evening, and he needed to retrieve his personal belongings from his friend’s house; therefore, he would not have time to arrange for transportation to the base, a local hotel, or even to Osan AB, without violating USFK curfew hours. In order to conceal an unlawful arrest of enforcing instructions other than outlined in 8 FWI 90-501, paragraph 4.4, and leaving their area of patrol (American Town) to arrest him at his friend’s private residence in the Kunsan City limits, the Town Patrol Security Forces achieved their primary objective through the First Sergeant. The First Sergeant stated “I directed him to leave immediately, to Kunsan AB or to Osan AB.” He followed Town Patrol Security Forces direction and departed the American Town area. Security Forces personnel issued him a temporary one day pass, permitting him to return to his friend’s private residence to pack his things and prepare for departure the next day. Since he had been previously assigned to Kunsan AB and resided off base for three years during his assignment at Kunsan AB, there are no details of the off-limit areas in American Town or Kunsan City limits that he was not aware of. While assigned at Osan AB he visited and resided with friends on the weekends in the Kunsan City limits for nine years. Due to his First Sergeant being new, his unfamiliarity of the area, his unwillingness to take care of his own, his disregard to gather all of the pertinent facts, and his unclear guidance, he feels he was treated unfairly and received an Article 15, a $400 fine, restriction to base for 45 days, a reprimand, an Unfavorable Information File, and a referral EPR. Due to fear of reprisal and harsh repercussions on his part for challenging the Article 15, he decided not to appeal it at the time. In support of his appeal, applicant submits a personal statement, with six attachments, 1) an Excerpt from 8 FWI 90- 501, Kunsan Air Base Community Standards, 2) a copy of the Referral EPR and his response, w/ a copy of the 20 Apr 07 EPR, 3) his response to the Non-judicial Punishment, 4) Security Forces documentation, 5) His account of the incident, and 6) his leave request authorization. Applicant’s complete submission, with attachments, is attached at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: Applicant is currently serving in the Regular Air Force in the grade of technical sergeant. On 28 Aug 06, the applicant was notified of his commander’s intent to impose nonjudicial punishment upon him for allegedly disobeying a lawful order issued by the First Sergeant, to leave the restricted area near Kunsan Air Base (AB), on 14 Jul 06, in violation of Article 92, Uniform Code of Military Justice (UCMJ). At the time of the incident, the applicant was stationed in Osan AB, Korea, and was familiar with the area, having been stationed in Korea for lengthy periods of time over the years. He had friends who lived on the economy, near Kunsan AB, but in and around restricted areas pursuant to 8 FWI 90-501. Security Forces detained the applicant approximately three times in an off-limits civilian area and informed the applicant the area was off-limits. The third time the applicant was stopped in a restricted area, he was taken to the Security Forces office in the restricted area, since he continued to dispute the Security Forces interpretation of which areas were restricted. At this time the Security Forces personnel contacted the applicant’s First Sergeant by telephone. The First Sergeant later provided a statement indicating he ordered the applicant to listen to the Security Forces and to either go to Kunsan AB or return to Osan AB. A Security Forces troop also provided a statement indicating he reiterated the First Sergeant’s order, telling the applicant to either go to Kunsan AB or a hotel for the night before returning to Osan AB in the morning. While on patrol, Security Forces had been tipped off by a taxi driver that he had given the applicant a ride to a residence in an off limits area. After consulting with his defense attorney, he accepted the nonjudicial punishment and waived his right to trial by court- martial. He presented matters to the commander in writing. On 6 Sep 06, after having considered the evidence and the defense matters, the commander concluded the applicant committed the offense alleged and imposed punishment consisting of forfeiture of $200 pay per month for two months, restriction to Osan AB for 45 days, and a reprimand. Applicant was also informed of the commander’s decision to file the Article 15 in an Unfavorable Information File. Applicant did not appeal the punishment. The nonjudicial punishment action underwent legal review at two separate levels and was found to be legally sufficient. Applicant’s last five EPR ratings are as follows: 4, 4, 5, *4, and 4. * Contested Report The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force. ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request. The applicant does not provide any evidence of an error or injustice, nor does the record reveal any. When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended to second-guess the appropriateness of the judgment of field commanders. While the applicant muddies the waters over the question of whether the area he was in was or was not truly restricted, the actual issue is whether or not he received a lawful order which he disobeyed. On the question of truthfulness, he states that it is his word against the First Sergeant’s. He forgets or blurs the fact that the Security Forces personnel, present at the time the order was issued, also made statements which support the First Sergeant’s version of the events. In the case of nonjudicial punishment, Congress (and the Secretary via AFI 51-202) has designated only two officials with the responsibility for determining the appropriateness of an otherwise lawful punishment; the commander and the appeal authority. So long as they are lawfully acting within the scope of authority granted them by law, their judgment should not be disturbed just because others might disagree. Commanders “on the scene” have first-hand access to facts and a unique appreciation for the needs of morale and discipline in their command that even the best-intentioned higher headquarters cannot match. With respect to the Referral EPR, AFI 36-2401, paragraphs 3.7.7 and 3.7.8 detail what is permissible to consider and comment upon in an EPR with respect to derogatory information related to misconduct. In this case, the decision to consider and comment upon the applicant’s misconduct, thus making it a Referral EPR, was appropriate. The evidence of misconduct was substantial and reliable, and it occurred during the rating period. Rater’s are “strongly encouraged to comment in performance reports…on misconduct that reflects a disregard of the law, whether civil law or the UCMJ.” The complete JAJM evaluation is at Exhibit B. HQ AFPC/DPSI recommends denial. As directed by AFI 36-2907, the UIF is an official record of unfavorable information on a member that is initiated by a member’s commander. It is a file for documenting administrative, judicial or nonjudicial censures concerning negative aspects of the member’s performance, responsibility or behavior. An Article 15 is a mandatory UIF entry. The Article 15 with the established UIF was administered accordingly. The UIF entry does exist in the Military Personnel Data System (MilPDS) with a 5 Sep 08 expiration date. The complete DPSI evaluation is at Exhibit C. HQ AFPC/DPSIDEP recommends denial of applicant’s request to remove the contested EPR. They found no procedural error or injustice with the contested report. The applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB). However, it was forwarded to the ERAB for review, and they recommended denial. The ERAB was not convinced that the EPR is in error because the applicant did in fact receive an Article 15 for disobeying a lawful order. The report was referred by his rater, he submitted a rebuttal and it was carefully considered by the additional rater. The complete DPSIDEP evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 15 Feb 08, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. To date, a response has not been received. ________________________________________________________________ _ 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 an injustice. After a thorough review of the evidence and the applicant’s submission, we are not persuaded the requested relief should be granted. His contentions are duly noted, however, we do not find these assertions, in and of themselves, sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility. The evidence reflects that the commander initiated the Article 15 action based on information he determined to be reliable and the action was properly accomplished and applicant was afforded all rights granted by statute and regulation. We have not been convinced, by his submission, that his commander abused his discretionary authority when he issued the Article 15 and establishing the UIF, and since we find no abuse of that authority, we find no reason to overturn the commander’s decision. Therefore, in absence of evidence to the contrary, we find no basis to recommend granting the relief sought. ________________________________________________________________ _ 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. ________________________________________________________________ _ The following members of the Board considered Docket Number BC-2007-02803 in Executive Session on 1 Apr 08, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2007-02803 was considered: Exhibit A. DD Form 149, dated 24 Aug 07, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 19 Nov 07. Exhibit C. Letter, AFPC/DPSI, dated 21 Dec 07. Exhibit D. Letter, AFPC/DPSIDEP, dated 4 Feb 08. Exhibit E. Letter, SAF/MRBR, dated 15 Feb 08.