RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03537 INDEX CODE: 126.03 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His Article 15 be removed from his military records. _________________________________________________________________ APPLICANT CONTENDS THAT: He was placed on the Roll Back list which projected him to be separated two years prior to his original Date of Separation (DOS). His DOS was April 2006; however, it was moved up to September 2004 due to the Roll Back Program. On 20 May 2004, he sent a request for assistance to his Congressman; he requested the Article 15 be removed from his records and that he be continued in the Air Force. He was told that the Article 15 was removed and he was no longer on the Roll Back List and would be continued in the Air Force. He received two different copies of the Article 15 in a folder. On 27 August 2008, he applied with the Evaluation Report Appeals Board (ERAB) to have two Enlisted Performance Reports (EPRs) removed from his records that contained unjust comments concerning the Article 15 he received in 2003. The ERAB informed him the Article 15 was still on record. When he received the Article 15, he did not have legal counsel; however, he received a telephone call from a lawyer at another base who told him he had nothing to worry about. His base legal office was unable to provide legal consult due to a conflict of interest; he had an open case against another Air Force airman. In support of his request, the applicant provides personal statements, copies of the Article 15, a copy of a letter from 314 AETC Vice Commander, a copy of a letter from 314 LRS/CC, a copy of the State Police Report, a copy of a letter from 314 MDOS/SGOHF, a copy of a Family Advocacy Record, and his response to the Article 15 punishment. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of staff sergeant (E-5) having assumed that grade effective and with a date of rank (DOR) of 1 September 2000. His Total Active Federal Military Service Date (TAFMSD) is 6 August 1991. On 8 January 2003, he received notification that his commander was considering imposing punishment for wrongfully communicating a threat to injure another Airman. He was advised of his rights in this matter, consulted counsel, and prepared a written statement in his own behalf. On 21 January 2003, the commander determined he committed the offense alleged and imposed punishment consisting of reduction to the grade of senior airman, forfeiture of $912.00 pay per month for two months and 45 days of extra duty. Any amount in excess of $200.00 pay per month for two months and the reduction of grade were suspended until 20 July 2003, after which time it was remitted without further action. On 21 January 2003, the applicant elected not to appeal the commander’s decision. On 21 January 2003, the applicant acknowledged that the Article 15 would be filed in his Unfavorable Information File (UIF). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that the applicant’s request is without merit and untimely. He received an Article 15 for communicating threats to injure another airman. His accusation that he did not have counsel is contradicted by his statement concerning the telephone call he received from a lawyer in Wyoming that said he would have nothing to worry about. The applicant points out that he received two different copies of the Article 15; receiving two different copies is not unusual due to the processing of an Article 15. There are several different stages in which copies of an Article 15 are more than likely placed in a folder due to having to obtain signatures at different times, such as; offering the UCMJ punishment, acknowledging receipt (twice), the commander’s decision, and the applicant’s acceptance and appeal process. The applicant was erroneously placed on the Roll Back Program list which targeted airmen serving suspended Article 15 punishments for early separation from the Air Force. Due to the Article 15 not being removed after his punishment was completed, he was placed on the list to be separated early; however, once he requested assistance through his Congressman, the error was corrected and he was taken off the list enabling him to continue his Air Force career. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 22 January 2009, the applicant submitted a rebuttal which included personal statements and an Office of Special Investigations (OSI) report. His contention is that the entire investigation is an error on the part of his chain of command and the Air Force. His 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. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. While we find no evidence of an error with respect to the administration of Article 15 punishment and aside from the applicant's apparent misunderstanding of the congressional assistance he received, it is our opinion based on the evidence provided that the applicant has established reasonable doubt as to whether or not corrective action is warranted. In this regard, taking into consideration the precarious situation the applicant found himself in and the resultant conduct, which ultimately led to his commander's decision to administer punishment; we believe that reasonable doubt exists as to whether or not punishment under Article 15 was excessively harsh in this case. Accordingly, we believe the benefit of doubt in this matter should be resolved in his favor and that it would be an injustice for the applicant to continue to suffer the adverse impacts of the Article 15 punishment and recommend his records be corrected to the extent indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the non-judicial punishment imposed on January 21, 2003, under the provisions of Article 15, Uniform Code of Military Justice, be declared void and expunged from his records, and all rights, privileges and property of which he may have been deprived be restored. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2008-03537 in Executive Session on 29 January 2009, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 23 September 2008, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 20 November 2008. Exhibit D. Letter, SAF/MRBR, dated 23 December 2008.