RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00944 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His nonjudicial punishment (NJP) action received on 19 Oct 10, under Article 15, Uniform Code of Military Justice (UCMJ) be set aside and removed from his records. _________________________________________________________________ APPLICANT CONTENDS THAT: The evidence supporting the allegations against him is all circumstantial and the video surveillance tapes do not actually show him removing or replacing any stickers. He was advised by his Area Defense Counsel (ADC) to accept the Article 15 punishment instead of court martial. He did not know this would establish a Federal Bureau of Investigations (FBI) file. He worked directly for his newly appointed group commander for six months, and they did not get along. He retires on 1 Apr 11, and if future employers run a background check, an FBI file will be present. This will disqualify him for employment. He has not been in any trouble for the past 20 years. In support of his request, the applicant provides documents pertaining to his Article 15. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 4 Sep 10, while serving on active duty the applicant purchased two items from the Base Exchange (BX). When the applicant presented one of the items, a barbeque grill, to the cashier it bore several BX stickers indicating it was reduced in price, one of them yielding a 75 percent discount. Store surveillance cameras showed the applicant putting the grill in his shopping cart and then proceeding to another area of the store, where he picked up a printer ink cartridge that bore a 75 percent discount sticker. The applicant progressed through other aisles in the store and later placed the printer cartridge box on a shelf in an aisle of toys. The tape showed the applicant making his purchase and then leaving the store. Although he left the grill’s box behind when he loaded it into his car, the discount stickers present on it at the time of checkout were no longer there. On 5 Sep 10, the applicant was contacted by a security forces investigator and asked about his BX purchase. The applicant declined to exercise his rights to remain silent and provided a written statement in which he admitted to purchasing the grill for a 75 percent discount and picking up, but discarding without purchasing, an ink cartridge. He specifically denied removing or replacing any discount stickers. He also claimed that an unnamed BX employee said they had just reduced the price on the item that day. On 19 Oct 10, the applicant’s commander offered the applicant NJP for making a false official statement in violation of Article 107, UCMJ, and for larceny of the unpaid discounted portion of the grill in violation of Article 121, UCMJ. After consulting with counsel, the applicant accepted the Article 15 proceedings and waived his right to demand trial by court-martial. He presented written matters to the commander, but did not make a personal appearance. On 26 Oct 10, the commander decided he committed the alleged offense and imposed punishment consisting of a suspended reduction to the grade of technical sergeant, forfeiture of $500.00 pay, and a reprimand. The applicant appealed the commander’s decision and provided matters in writing. Both his commander and the appellate authority denied his appeal, and his commander decided the action would not be filed in his SNCOSR. A legal review of the Article 15 determined it was legally sufficient. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of applicant’s request to remove the Article 15 from his records. The applicant has not shown a clear error or injustice. The applicant was given all of his rights throughout the process. He was able to present matters (with the assistance of legal counsel) to the commander for consideration before imposition of punishment. He was able to appeal the decision of his commander. The commander was in the best position to carefully weigh all of the evidence, make informed findings of fact, and arrive at a suitable punishment. The punishment imposed was appropriate to the offense and not unfairly harsh. The applicant is in error in stating that the absence of direct video evidence showing his alleged sticker-swapping offenses is proof that they were not committed at all. Circumstantial evidence of an offense is still evidence, and in the applicant’s case there appears to be little question as to the reliability of the circumstantial evidence pointing to his guilt. A commander in considering a case for disposition under Article 15 exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extent of punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause. He has not raised any genuine doubt as to his guilt of the offense for which he was punished or established any error or injustice in his Article 15 such that a set aside would be in the best interests of the Air Force. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The alleged incident occurred on 4 Sep 10 at 15:14:39 and security forces was not notified until 5 Sep 10 at 15:50, by telephone, over 24 hours later. The Security Forces Squadron has not produced the video showing that he swapped the sticker as they claimed. He was charged with lying which established an FBI record. If a potential employer should run a background check a record will be present, which will disqualify him and this is unfairly harsh. If he is accused of lying to the security forces; they should have to produce the video showing he swapped the sticker. He is retired and cannot find work to feed his family because of his FBI record. His security clearance is also in jeopardy. His integrity has always been unquestionable and the fact is, he did not commit this crime. He was told that the AFBCMR could review the video tape and check if it had been altered; however, he does not have a copy of it. He picked up a grill and ink cartridge and later placed the ink cartridge on another shelf because he could not remember the printer model number. The security manager said he stayed in aisle B34 for approximately one minute on surveillance video; but he neglected to mention the distance between both aisles, and the fact he was pushing a cart with a 50 pound grill in it. The security manager stated there was a 75 percent discount sticker on the ink cartridge, but the cashier said that a 25, 50 and 75 percent sticker was on the grill. The cartridge he picked up did not have a discount sticker, so he could not have swapped the sticker. He did not tell the cashier that a lady told him the grill was on sale; rather he said a lady over the intercom said the grill was on sale. He asked the cashier to verify the price on the grill, and the cashier said “no I believe you.” The grill would not fit in his car, so he had to rip the box to get the grill out. The discount sticker must have been removed in the process. He discarded the box in front of the BX next to a trash can. The applicant’s complete response 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After thoroughly reviewing the documentation submitted in support of his appeal, we do not believe he has suffered from an injustice. Evidence has not been presented which would lead us to believe that the nonjudicial punishment, imposed on 26 Oct 10 was improper. In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority. We have no such showing here. The evidence indicates that, during the processing of this Article 15 action, the applicant was offered every right to which he was entitled. He was represented by counsel, waived his right to demand trial by court-martial, and submitted written matters for review by the imposing commander. After considering the matters raised by the applicant, the commander determined that the applicant had committed the offense alleged and imposed punishment on the applicant. The applicant has not provided any evidence showing that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of the Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ. Additionally, the applicant requests the Board review a video tape to see if it has been altered; however, he has not provided a copy of the video tape. The Board by law is a function of the Secretary of the Air Force acting through panels of Civilians of the Department to correct an error or injustice; when necessary; however, the Board is not an investigative body and this request is not within the purview of the Board. AFI 36-2603, Air Force Board for Correction of Military Records which governs the AFBCMR process states “the applicant has the burden of providing sufficient evidence of probable material error or injustice.” Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application. _________________________________________________________________ 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-2011-00944 in Executive Session on 21 Jul 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Feb 11, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 11 Apr 11. Exhibit C. Letter, SAF/MRBR, dated 22 Apr 11. Exhibit D. Letter, Applicant, dated 9 May 11, w/atch. Panel Chair