RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03895 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1 The nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), imposed on 21 May 10, be removed from his records. 2. His reentry (RE) code of 2C (Entry-level separation) be removed. ________________________________________________________________ APPLICANT CONTENDS THAT: The event which led to his separation was unjustly dealt with. His wingman came to him with a problem concerning school and, against his better judgment, he loaned his academic materials to him. He was taught never to leave a wingman behind which clouded his actions. He regrets what he has done and will never do it again. The punishment rendered was unjust. In support of his request, the applicant provides an expanded statement. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 28 Dec 09 in the grade of airman basic (E-1). On 13 May 10, the applicant was notified by his commander of his intent to impose NJP under Article 15 of the UCMJ. The reason for the action was his dereliction in the performance of duty in that he willfully failed to refrain from giving the answers to the Block VI test on the Materials Management Course to a fellow airman. On 18 May 10, after consulting with legal counsel, the applicant acknowledged receipt of the action, waived his right to court- martial, and elected to submit a written presentation in his behalf. On 21 May 10, the commander determined the member committed the alleged offenses and imposed punishment consisting of forfeiture of $337.00 pay, 14 days of extra duty (suspended through 19 Nov 10), and a reprimand. On 16 Jun 10, the applicant’s commander notified him of his intent to recommend his entry-level separation for entry-level performance or conduct in accordance with AFI 36-3208, Administrative Separation of Airmen. The reasons for the action were the applicant’s failure to attain a passing score on the Block VI, Unit 4 test and his willful failure to refrain from giving the answers to the Block VI test to a fellow airman. On 21 Jun 10, after consulting with legal counsel, the applicant elected to submit statements in his behalf. On 25 Jun 10, the case was found legally sufficient and the discharge authority approved the commander’s recommendation on 30 Jun 10. On 1 Jul 10, the applicant was furnished an entry- level separation with uncharacterized service for entry-level performance and conduct and was credited with six months and four days of total active service. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice with respect to the NJP. The applicant’s only allegation of error or injustice is that he believes the punishment was unjust. However, an examination of the NJP action shows no error or injustice. The applicant was afforded all of his rights under the UCMJ, beginning with his choice to waive his right to a court-martial in favor of NJP proceedings. The commander took all the necessary steps in handling the action and did not act in an arbitrary or capricious manner. Furthermore, the commander was in the best position to decide whether an Article 15 was appropriate for the offense and he was also best placed to evaluate all of the evidence in the case, the applicant’s submission, and the effect his offense had on the unit’s morale, good order, and discipline. Setting aside the applicant’s NJP is not in the best interests of the Air Force and should not be granted. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOS recommends denial of the applicant’s request to change his RE code, indicating there is no evidence of an error or injustice with respect to the discharge process. Airmen are given entry-level separation with uncharacterized service when separation is initiated within the first 180 days of continuous active service. The department of Defense (DoD) determined that it would be unfair to the member or the department to characterize a member’s limited service when such service is 180 days or less. Based on the documentation on file in the master personnel records, the discharge, to include the service characterization, was appropriately administered and within the discretion of the discharge authority. The applicant has not provided any evidence that an error or injustice occurred in the processing of his discharge warranting a change to his RE code or character of service. A complete copy of the AFPC/DPSOS evaluation is at exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 13 May 11 for review and response within 30 days. As of this date, no response has been received by this office (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 error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of AFLOA/JAJM and the Air Force office of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Based on the available evidence of record, it appears the applicant’s nonjudicial punishment (NJP) and subsequent entry-level separation was consistent with the substantive requirements of the prescribing directives and within the commander’s discretionary authority. Other than his own assertions, the applicant has provided no evidence which would lead us to believe his NJP or entry-level separation, to include the assigned Reentry (RE) code, were improper or contrary to the provisions of the governing directives. Therefore, absent persuasive evidence that appropriate directives were not followed, there was an abuse of discretionary authority, or the applicant was denied rights to which he was entitled, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES 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-2010-03895 in Executive Session on 6 Jul 11, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Oct 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 13 Jan 11. Exhibit D. Letter, AFPC/DPSOS, dated 23 Mar 11. Exhibit E. Letter, SAF/MRBR, dated 13 May 11.