RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00489 COUNSEL: None HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His nonjudicial punishment received under Article 15, Uniform Code of Military Justice (UCMJ) be removed from his record. _________________________________________________________________ APPLICANT CONTENDS THAT: His three previous commanders were prejudiced against him due to an ongoing investigation that took over four years to complete. Between December 2006 and March 2010, his commanders indicated they wished to demote and discharge him based on false information they were provided. His record, prior to his Article 15, was flawless. He was poorly advised by the acting First Sergeant on whether or not to accept nonjudicial punishment proceedings. In support of his appeal, the applicant provides copies of a witness statement, his Article 15, an excerpt of a news article, a memorandum of record, his appeal of nonjudicial punishment, and a letter of support. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving as a member of the Regular Air Force in the grade of staff sergeant (E-5). On 20 January 2010, the applicant’s commander preferred court- martial charges against the applicant. The offenses included larceny, in violation of Article 121 UCMJ; and solicitation, obstruction of justice, and other offenses, all in violation of Article 134, UCMJ. The charges and specifications were referred to a general court-martial on 25 February 2010. The trial took place on 23-26 August 2010. A panel of officers found the applicant not guilty of all charges and specifications. The investigation which led to the applicant’s court-martial began at Hurlburt Field, Florida. Personnel from the Air Force Office of Special Investigation informed authorities at Davis-Monthan Air Force Base about the investigation involving the applicant in July 2008. As a result of that investigation, the applicant’s security clearance was suspended. In October 2008, the applicant’s commander offered the applicant an Article 15 for dereliction of duty for willfully failing to refrain from attending a classified training briefing while his security clearance was suspended. After consulting with counsel, the applicant accepted the nonjudicial punishment proceedings and waived his right to demand a trial by court-martial. He presented written matters to and requested a public appearance before the commander. On 23 October 2008, the commander concluded the applicant had committed the alleged offenses and imposed punishment consisting of a suspended reduction to the grade of senior airman, 30 days extra duty, and a reprimand. The applicant appealed, but the appeal was denied. A legal review of the Article 15 action determined it was legally sufficient. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant has failed to demonstrate a material error or injustice in his Article 15 action such that a set-aside would be in the best interest of the Air Force. The applicant implies that his commanders used the pretext of his attendance at the classified briefing as a way to impose punishment on him for the investigation that was ongoing against him in 2008. However, there is no evidence in the record or in the application to support this implication. An examination of the process of the Article 15 shows the commander observed the applicant’s rights throughout the process. He was given the opportunity to turn down the proceeding and demand court-martial. He had opportunities to present any extenuating or mitigating evidence to his commander as part of the Article 15 proceeding. Once the commander found the applicant had committed the offense and imposed punishment, the applicant had the opportunity to have those decisions reviewed by a higher commander. In addition, once the process was complete, the Article 15 underwent two levels of legal review. By accepting the offer of non-judicial punishment, the applicant accepted the fact that the commander would make a determination as to whether the applicant committed the offense and, if so, what would be the appropriate punishment for the offense. Ultimately, the commander was in the best position to weigh the information provided by the applicant and, also the other evidence in the case, and make informed findings of fact and arrive at a suitable punishment. Based on the evidence in this case, it was not an abuse of the commander’s authority to find the applicant had committed the offense and that nonjudicial punishment was appropriate for the offense. The applicant says he is not guilty of the offense because he did not know the briefing was classified. He also included in his application statements from others who attended the briefing and said they did not know it was classified. This is the same argument the applicant made to his commander and, seemingly, also in his appeal to the higher commander. In addition the applicant states he received bad advice from an acting First Sergeant with regard to his decision to accept the Article 15. However, he clearly indicated on the Article 15 form (AF Form 3070) that he had the opportunity to consult with a defense counsel before he made his decision to accept the Article 15. There is no evidence of any advice given to the applicant by an acting First Sergeant; therefore, his argument is not persuasive. The complete JAJM evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was provided to the applicant on 8 April 2011 for review and comment within 30 days. To this date, this office has received no response. _________________________________________________________________ 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 error or injustice. We note the applicant’s commander offered him Article 15 punishment for dereliction of duty for willfully failing to refrain from attending a classified training briefing while his security clearance was suspended. The applicant contends he was unaware the briefing was classified and provides supporting witness statements indicating there were no classified signs posted, nor did the briefer notify the audience that the briefing was classified. The provided witness statements indicate there were numerous security violations in their organization in regard to classified briefings, i.e., allowing cell phones in classified briefings, briefers not verifying that only those members with the requisite access were allowed in the briefing, loss of control of Special Access Program (Top Secret) material, etc. While we believe the applicant bears responsibility for ensuring he did not violate any security standards while his security clearance was suspended, we believe the evidence he has provided establishes reasonable doubt that he did not willfully violate security standards and that he may not be solely at fault for the breach. As such, we elect to resolve any doubt in favor of the applicant. While we normally accord great deference to the actions of commanders unless clear evidence is provided that they exceeded their discretionary authority or their actions were arbitrary or capricious, in this instance we believe it is in the interest of equity and justice to remove the Article 15 from the applicant’s record. Therefore, in an effort to offset any possibility of an injustice, we recommend the applicant’s record be corrected to the extent indicated below. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to reflect that the nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice, initiated on 21 October 2008, and imposed on 23 October 2008, 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-2011-00489 in Executive Session on 12 October 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence for AFBCMR Docket Number BC-2011- 00489 was considered: Exhibit A. DD Form 149, dated 24 Jan 11, with atchs. Exhibit B. Letter, AFLOA/JAJM, dated 21 Mar 11, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 8 Apr 11. Panel Chair