RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01549 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Article 15s for adultery and assault and all punishment related to the record be removed from his military records. 2. The action vacating the suspended punishment for the second Article 15 and all punishment related to the record be removed from his military records. 3. All records of military protective orders for incidents between he and his spouse, as well as, the letter stating his entrance into the Department of Defense (DoD) Central Registry for emotional abuse be removed from his military records. 4. He be reinstated back into the Air Force, if the Board grants his requests. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. His Article 15 for adultery was unjust because the adulterous conduct did not meet all elements to constitute an offense of crime under the Uniform Code of Military Justice (UCMJ). 2. The vacation action was unjust because he believed his supervisor had excused him from work. 3. Prior to being discharged, he was attending counseling for domestic abuse in a program offered through the Family Advocacy Program at Dover AFB, DE. He successfully completed 17 of the 26 required classes. In support of his request, the applicant provides a personal statement, copies of letters of argument on his behalf, a doctor’s note, certificate of completion for domestic abuse classes, an excerpt of Article 134, Uniform Code of Military Justice (UCMJ) and other documentation in support of his request. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 22 Oct 07, the applicant enlisted in the Regular Air Force. On 23 Feb 11, the applicant was notified of his commander’s intent to recommend he be discharged from the Air Force under the provisions of AFPD 36-32, Air Force Military Training and AFI 36-3208, Administrative Separation of Airmen, paragraph 5.50.2, A Pattern of Misconduct, specifically, Conduct Prejudicial to Good Order and Discipline. The specific reasons for this action were: On or about 1 Jan 09 and on or about 31 Mar 09, the applicant wrongfully had sexual intercourse with XX. X, a woman not his wife in violation of Article 134, UCMJ. For this misconduct, he received a reduction to the grade of airman first class (E-3), forfeiture of $250 pay per month for two months, and 20 days extra duty. The reduction was suspended until 22 Feb 11, at which time it was to be remitted without further action, unless sooner vacated. On or about 4 Dec 10, the applicant violated Article 128, UCMJ when he unlawfully shoved airman first class O in the chest with his hand, punched her in the face and unlawfully threw her to the ground by pulling on her hair. Also, he violated Article 134, UCMJ by being disorderly, which conduct was of a nature to bring discredit upon the armed forces. For this misconduct, he received reduction to the grade of airman (E-2) with a reduction below E-3 suspended until 21 Jun 11 and forfeiture of $500 pay per month for two months. On or about 19 Jan 11, the applicant violated Article 86, UCMJ when he without authority, failed to go at the time prescribed time to his appointed place of duty. For this misconduct, the suspension of his reduction in rank to E-2 was vacated on 3 Feb 11. On 4 Mar 11, the Staff Judge Advocate recommended to the Wing Commander that the applicant be discharged and issued a general discharge without probation and rehabilitation. On 8 Mar 11, the discharge authority approved the applicant’s discharge. On 22 Mar 11, the applicant was discharged from the Air Force with a general (under honorable conditions) discharge in the grade of airman. He served three years, five months and 1 day of total active service. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of his request to remove the military justice actions from his records. JAJM states the applicant claims injustice in the 23 Aug 10 Article 15 action because he says his conduct did not meet all of the elements to constitute an offense under the UCMJ. The elements of the offense are: 1) the accused wrongfully had sexual intercourse with a certain person; 2) at the time, the accused or the other person was married to someone else; 3) under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. The applicant does not dispute the first two elements, but says his conduct does not rise to the level of being prejudicial to good order and discipline or service discrediting. In the applicant’s case, he had an affair while he was still married to his wife and a child was born of that affair. Both the applicant’s wife and members of the applicant’s unit knew about the affair and child, since the applicant signed a voluntary acknowledgement of paternity. An actual paternity test later showed that the applicant is the father of the child. Furthermore, the applicant’s wife later took evidence of the applicant’s continuing relationship with the woman to the applicant’s first sergeant. The applicant was afforded all his procedural rights during the Article 15 action. Most importantly, the applicant had the opportunity to turn down the Article 15 and demand court- martial. By not doing so, the applicant agreed that the commander would be the one to decide whether he committed the offense and, if so, what would be the appropriate punishment. The evidence in the applicant’s case is sufficient to find either prejudice to good order and discipline or discredit to the service. By so finding, the applicant’s commander did not act in an arbitrary or capricious manner. The Board should not overturn the commander’s decision since the commander was the one in the best position to evaluate the applicant’s offense against the good order and discipline of the applicant’s unit. The applicant claims injustice in regard to the 22 Dec 10 Article 15 action and the action that served to vacate the suspended punishment from that Article 15 action. The applicant did not provide any justification for why there was error or injustice in the 22 Dec 10 Article 15 action and a review of the Article 15 does not show any error or injustice. The applicant was afforded all his procedural rights during the proceedings. He took advantage of his rights to counsel and provide a written response to his commander. He also made a personal presentation to his commander in the Article 15 action. The commander considered the applicant’s submissions and properly informed the applicant of his decision. The applicant had the opportunity to appeal the Article 15 action and the action underwent legal review at two different levels, as required by AFI 51-202, Nonjudicial Punishment. The applicant alleges injustice in the underlying offense which resulted in the vacation of his suspended punishment from the 22 Dec 10 Article 15 action. The applicant was accused of failure to go to his place of duty on 19 Dec 10. The applicant relies on a statement from his supervisor to show that he was excused for the day in question. A review of the supervisor’s statement shows, though, that: 1) the applicant missed all or part of both 19 and 20 Dec 10; and 2) that the applicant was not excused for at least one of those days. The supervisor seems to indicate that the applicant may have been excused from work on 19 Dec 10 for a sick child, but not for a trip to the courthouse which is what he actually did that day according to his own admission. When the applicant did not go to work on 20 Dec 10 (also for a sick child), the supervisor called the applicant back into work for an explanation. The evidence presented is sufficient for the commander to have found that the applicant committed the offense. Just as with the two Article 15 actions, the commander was in the best position to evaluate all of the evidence before making a decision and the Board should not overturn that decision lightly, especially considering that a little over a month ago, the applicant was making the same argument to his commander that he is now making to the Board. The complete JAJM evaluation is at Exhibit C. HQ AFPC/DPSOS recommends denial of his request for reinstatement. DPSOS states based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. There was no error or injustice in the applicant’s discharge from the Air Force, nor did the applicant submit any evidence or identify any error or injustices in the discharge processing. The complete DPSOS evaluation is at Exhibit D. ________________________________________________________________ AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 19 Aug 11 for review and comment within 30 days (Exhibit E). As of this date, this office has not received a 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. 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 the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has failed to sustain his burden of proof of the existence of an error or injustice. Absent evidence the applicant was denied rights to which entitled, appropriate regulations were not followed, or appropriate standards were not applied, we find no basis to disturb the existing record. In view of the above, and absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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 involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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-2011-01549 in Executive Session on 4 October 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-01549 was considered: Exhibit A. DD Form 149, dated 27 March 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. AFLOA/JAJM, Letter, dated 23 May 2011 Exhibit D. AFPC/DPSOS, Letter, dated 1 August 2011. Exhibit E. SAF/MRBR, Letter, dated 19 August 2011.