RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01312 COUNSEL: NO HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Article 15 be expunged from his record and the resulting negative information be expunged from his security background. _________________________________________________________________ APPLICANT CONTENDS THAT: He was told that his Article 15 would not follow him or hurt his career. He recently lost his job because of a damaging background report indicating he committed fraud. To his knowledge, this information has never appeared in his background up to this point. He believes this information is unjust because he is still being punished 15 years after the event that led to this Article 15. The applicant does not provide any evidence in support of his appeal. The applicant’s complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served on active duty from 5 October 1993 to 29 October 1996. He was trained and served as a Medical Assistant Apprentice and was progressively promoted to the grade of airman first class (E-3). On 27 February 1995, the applicant’s commander offered the applicant non-judicial punishment for wrongfully going from his place of duty in violation of Article 86, Uniform Code of Military Justice (UCMJ). After consulting with counsel, the applicant accepted the Article 15 and waived his right to demand a trial by court-martial. He presented written matters to and personally appeared before the commander, who, on 9 March 1995, decided the applicant committed the alleged offense. The resulting punishment consisted of a suspended reduction to the grade of airman (E-2) and forfeiture of $184 pay. The applicant did not appeal. A legal review of the Article 15 found the case legally sufficient. On 29 October 1996, the applicant was separated from the Air Force as an airman basic (E-1) with a general (under honorable conditions) characterization of service. He served 3 years and 24 days on active duty. The remaining relevant facts, extracted from the applicant’s military service record, are contained in the evaluation by the Air Force office of primary responsibility at Exhibit C. On 19 April 2011, SAF/MRBR requested the applicant provide copies of his Article 15s as the microfiche copies in his record were unreadable. To this date, the applicant has not responded. On 22 August 2011, SAF/MRBR, notified the applicant that he could submit a request to the Air Force Office of Special Investigations (AFOSI) to expunge or correct information concerning his Air Force service as reflected in the National Crime Information Center (NCIC). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the reason for the applicant’s reduction in grade from airman first class to airman basic is not entirely clear from the applicant’s record of military justice actions. The Air Force Automated Military Justice Analysis and Management System (AMJAMS) does not show a vacation action relating to the suspended punishment the applicant received in the 9 March 1995 Article 15 action. However, it does show he was offered non-judicial punishment on 4 April 1994 for failure to obey a lawful general order, in violation of Article 92, UCMJ, but that Article 15 action was dropped by the commander on 7 April 1994. It also shows the applicant was offered non-judicial punishment on 10 September 1996 for forgery, in violation of Article 123a, UCMJ. That Article 15 action indicates the applicant accepted the Article 15 on 25 September 1996, that he consulted a lawyer, and requested a personal hearing before the commander. The AMJAMS indicates that the punishment imposed was reduction from airman first class to airman basic. However, the AMJAMS entries on that Article 15 are incomplete and do not indicate whether the applicant had the opportunity to appeal the decision, nor is there any indication that the Article 15 action received legal review. JAJM states that in this case, the applicant’s issue appears to be with the fact that he may have an arrest on his record. It is possible his issue has arisen from how the Article 15 charge(s) were reported to the national criminal databases. With regard to the 9 March 1995 Article 15 action, the applicant has not raised any genuine doubt as to his guilt of the actual offense. A review of the non-judicial punishment action shows no error in the processing of the action. 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 in the Article 15 was appropriate to the offense and not unfairly harsh. JAJM indicates that it is unlikely that the 9 March 1995 Article 15 action for wrongfully going from his place of duty would have resulted in a negative report to the national criminal databases. Since the applicant notes that his background check came back with a notation of “fraud,” it is likely the negative report in his background is tied to his 25 September 1996 Article 15 for forgery. While the AMJAMS record on this military justice action is incomplete, there is sufficient information in AMJAMS and the applicant’s military personnel record to assume the Article 15 was completed and found to be legally sufficient. The coincidence of the timing of the Article 15 (September 1996) and the applicant’s administrative discharge (October 1996) suggest a tie between the two. An incomplete and legally sufficient Article 15 could not be used as the basis for an administrative discharge. In addition, the fact that the applicant was separated as an airman basic supports the fact that the 25 September 1996 Article 15 was found to be legally sufficient. Finally, the applicant’s claim of “fraud” showing up in his background check is consistent with the offense charged on the 25 September 1996 Article 15 – forgery. All of these factors and the presumption of regularity given to military justice actions such as this Article 15, weigh in favor of finding no error or injustice in the applicant’s 25 September 1996 Article 15. As such a set aside of the Article 15 is not in the best interest of the Air Force. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 26 August 2011 for review and comment within 30 days (Exhibit D). As of 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 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 opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in 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 AFBCMR Docket Number BC-2011-01312 in Executive Session on 14 December 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2011-01312: Exhibit A. DD Forms 149, dated 8 Apr 11. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 8 Aug 11. Exhibit D. Letter, SAF/MRBR, dated 26 Aug 11. Panel Chair