RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02000 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), dated 26 April 2011, be removed. 2. He be reinstated to the grade of Staff Sergeant (E-5) rather than Senior Airman (E-4) and receive all back pay and allowances associated with that grade. ________________________________________________________________ APPLICANT CONTENDS THAT: The Article 15 punishment is unjust because he did not receive a “no contact” order according to paragraph 4 of Air Force Instruction (AFI) 36-2909, Professional and Unprofessional Relationships. There was also a lack of evidence and investigation. He would have submitted his report but he was never interviewed. In support of his request, the applicant provides a personal statement, copies of AF Form 1168s with witness statements and copies of his AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt). His complete submission, with attachments, is at Exhibit A. His Records of Nonjudicial Punishment Proceedings are at Exhibit B. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the Regular Air Force in the grade of Senior Airman. Additional relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant was charged with one specification of dereliction of duty, in violation of Article 92, UCMJ. The specification stated that the applicant was derelict in the performance of his duties in that he negligently failed to refrain from engaging in an unprofessional relationship with a junior enlisted member, in violation of AFI 36-2909, paragraphs 2.2, 3.1, and 3.4. The applicant accepted the Article 15 and waived his right to demand trial by court-martial after consulting with counsel. He did not submit written matters to the commander but requested a personal appearance before the commander. On 26 April 2011, the commander decided the applicant had committed the charged offense and imposed punishment consisting of a reduction to the grade of Senior Airman (E-4) and a reprimand. The applicant appealed the commander’s decision and submitted matters in writing, but the commander and the appellate authority denied the appeal. The Article 15 action was reviewed and determined to be legally sufficient. The applicant highlighted the fact that there was no official investigation conducted into his offense. Such an investigation is not required as a prerequisite to military justice action. The applicant also argued that the charge against him does not state an offense. The applicant misinterpreted the language in AFI 36-2909, paragraph 4. The only language in the paragraph which applies to the applicant’s case is the first line of the introductory paragraph which says “The policy set out in this instruction applies to all active duty members….” A violation of Article 92, UCMJ, can be charged as failure to obey a lawful general order or regulation; failure to obey a lawful order; or dereliction in the performance of duties. The applicant was charged with negligent dereliction of duty. There was no error or injustice in the course of the processing of the Article 15 action. The applicant made these same arguments to the commander before his decision and also to the commander and the appellate authority on appeal. The applicant’s rights were observed throughout the process. He accepted the forum of the Article 15 and made a personal appearance before the commander. He gave a written presentation on appeal. The article 15 was reviewed at two levels for legal sufficiency. The applicant 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 action such that a removal of the Article 15 would be in the best interests of the Air Force. The punishment imposed in the Article 15 was appropriate and not unfairly harsh. The commander was in the best position to carefully weigh all the evidence and make an informed decision. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE defers to the JAJM recommendation. DPSOE states that AFLOA/JAJM has reviewed this case, found no error or injustice, and recommends denial. The complete DPSOE evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 5 October 2011 for review and comment within 30 days. 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 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 opinion and recommendation of the Military Justice Division and adopt its 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 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 this application BC-2011-02000 in Executive Session on 2 February 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 24 May 2011, w/atchs. Exhibit B. Applicant’s Master Personnel Records Exhibit C. Letter, AFLOA/JAJM, dated 6 September 2011. Exhibit D. Letter, AFPC/DPSOE, dated 13 September 2011. Exhibit E. Letter, SAF/MRBR, dated 30 September 2011.