RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01280 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her nonjudicial punishment (NJP) action received on 19 Nov 10, under Article 15, Uniform Code of Military Justice (UCMJ) be set aside and removed from her records. _________________________________________________________________ APPLICANT CONTENDS THAT: She was punished via an Article 15, UCMJ, for allegedly being drunk on duty on or about 16 Oct 10, in violation of Article 112 of the UCMJ. The evidence attached to her Article 15 alleges at the time of the offense, she was “on-call” and that, while on-call, she was arrested upon suspicion of driving under the influence (DUI). There was no evidence to suggest that she was ever recalled from on-call status. The facts, as the government has alleged them, make it impossible for her to be guilty of violating Article 112. Specifically, one of the elements of Article 112 is that the accused be “on-duty.” The President specifically limited the scope of Article 112 to not include those periods where a member is not on the installation or on detail being tasked to perform actual military duties. Therefore, as a matter of law, it is impossible for her, who was merely on-call, to be considered “on- duty.” She could not have been considered “on-duty” for Article 112 purposes unless she was actually recalled and tasked. In support of her request, the applicant provides documents pertaining to her Article 15. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant was accused of driving under the influence (DUI) during a time period when she had been placed on the On-Call Military Dog Handler schedule. As a result, on 15 Nov 10, the applicant’s commander offered the applicant NJP under Article 15, UCMJ. She was charged with one specification of being found drunk while on duty as an on-call military working dog handler, in violation of Article 112, UCMJ. After consulting with counsel, the applicant accepted the Article 15, and waived her right to demand trial by court-martial. She opted not to present written matters or to make a personal appearance before the commander. On 18 Nov 10, the commander decided she committed the alleged offense and imposed punishment consisting of a reduction to the grade of senior airman (E-4) and 15 days of extra duty. The applicant appealed the commander’s decision, but her appeal was denied by the commander and the appellate authority. 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 her records. The applicant has not shown a clear error or injustice. The applicant was under an order from a superior authority to execute a military duty – being on-call in case she was needed for military working dog duties. The fact the unit allowed the applicant to spend her on-call time away from the base does not take away from the fact of her duty. The applicant was not in a status of leisure where she could be considered “off-duty” or “on liberty.” Quite logically, if the applicant’s status is not entirely “off duty” or “on liberty,” it must be “on-duty.” There are two things of importance with regard to the applicant’s Article 15. First, the applicant chose to have her commander evaluate the evidence and the charged offense. She could have made the case that she’s now making to the Board to the commander before he decided to impose punishment. Instead, she opted not to submit written matters and she did not make a personal appearance. Based on the attachments to the application, it appears the first mention of this issue to the commander was in the submission of the applicant’s defense counsel upon appeal of the commander’s decision. Second, the applicant has not contested the fact of being drunk, which is the other element to the offense with which she was charged. It does not appear there is any question that the applicant was drinking the night in question. It is not uncommon in units such as the applicant’s to have a written policy regarding drinking while on-call. Additionally, many specialties in the Air Force (such as aircrew) have written policies about drinking within a certain number of hours of duty. There is no evidence whether this is the case here, but in such a case, the applicant’s commander could also have charged the applicant with dereliction of duty or violation of a lawful order, in violation of Article 92, UCMJ. The commander was in the best position to weigh the facts of the applicant’s case against the elements of the offense and come up with an appropriate decision in the case. The applicant has not raised any genuine doubt as to her guilt of the offense for which she was punished or established any error or injustice in her Article 15 action such that a set aside would be in the best interests of the Air Force. Based on the evidence presented in the case, the commander was clearly not acting in an arbitrary or capricious manner when he found NJP appropriate in this case. The punishment imposed was appropriate to the offense and not unfairly harsh. The complete JAJM evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 27 May 11, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received (Exhibit C). _________________________________________________________________ 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 the applicant’s appeal, we do not believe she has suffered from an injustice. Evidence has not been presented which would lead us to believe that the nonjudicial punishment, imposed on 18 Nov 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 she was entitled. She was represented by counsel, waived her right to demand trial by court-martial, and opted not to submit 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 her substantial rights were violated during the processing of the Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ. 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-2011-01280 in Executive Session on 5 Jan 12, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, undated, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 18 May 11. Exhibit C. Letter, SAF/MRBR, dated 27 May 11. Chair