RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02911 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Record of Nonjudicial Punishment (NJP), imposed on 2 Oct 08, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), be set aside and all associated documentation be removed from her records. 2. The AF IMT 707B, Company Grade Officer Performance Report (OPR) (2LT Thru Capt), rendered for the period 2 Mar 08 through 15 Nov 08, be declared void and removed from her records. 3. Adverse information associated to the Article 15 be removed from her Officer Selection Record (OSR). 4. She be considered for a Special Selection Board (SSB) for promotion to the grade of major (0-4). 5. She be considered for an Intermediate Development Education (IDE) slot. ________________________________________________________________ APPLICANT CONTENDS THAT: The issuing authority of the Article 15 did not anticipate the consequences and supports a set aside of the Article 15. Had she known the General would have supported a set aside while she was on active duty, she would have appealed to him in writing and stayed on active duty; however, he previously made it clear in their Jan 09 meeting that he would not set aside the Article 15 while Lt Gen XXX was still his commander. Therefore, she did not appeal to him in writing for a set aside, nor did she appeal to have the Article 15 removed from her OSR once he informed her that she had not been promoted. Had she been aware the General would have supported a set aside, despite what he told her in their meeting, she would have appealed and the Article 15 would not have remained in her OSR; she would have remained on active duty and been given fair consideration for promotion and IDE. The NJP resulted in her nonselection to promotion and transfer from active duty to the Reserves. The Article 15 and related adverse documentation in her records and the resulting negative impact on her Air Force career is erroneous and an injustice. She understands that she does not have an automatic right to appear before the Air Force Board for Correction of Military Records (AFBCMR), however, she believes a review of her submitted documentation and a personal appearance will clearly establish the merits of her claim. In support of her request, the applicant provides copies of her DD Form 214, Certificate of Release or Discharge from Active Duty; AF Form 3070C, Record Of Nonjudicial Punishment Proceedings, Memo of Mitigation, a letter from her attorney, Referral OPR and her response, requests to void OPR, non- selection to 0-4, Evaluation Reports Appeal Board’s (ERAB) decision, online posting of non-selection to 0-4, Divorce Agreement, numerous electronic communiqués, character references, Letters of Appreciation, her OSR, to include OPRs, decorations, and school evaluations. The applicant's complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Air Force Reserves in the grade of captain, having assumed the grade effective with a date of rank of 30 May 05. She was considered and not selected for promotion by the P0409A (2 Nov 09) major central selection board. On 2 Oct 08, the applicant's commander offered her nonjudicial punishment for fraternizing with an enlisted person in violation of Article 134, UCMJ. She accepted the Article 15 and presented matters to her commander. On 17 Oct 08, the commander decided she committed the alleged offense and imposed punishment. The applicant appealed the commander's decision and provided matters in writing; she also asked the commander not to place the Article 15 in her OSR. Both her commander and the appellate reviewing authority denied the applicant's appeal and decided that the action should be filed in the applicant's OSR. On 22 Oct 08, the applicant appealed the action to the imposing commander and to the appeal authority. She also submitted written matters to the commander regarding his decision about her OSR. The applicant's civilian defense counsel submitted a memorandum in support of the applicant's appeal. The defense counsel argued that the Article 15 was not legally supported by the evidence. Her appeals were denied. On 31 Oct 08, the Article 15 action was found to be legally sufficient. The following is a resume of the applicant’s performance profile: Period Ending Performance Factor 6 Jul 10 Meets Standards 11 Jan 10 Meets Standards 21 Jun 09 Meets Standards * 15 Nov 08 Does Not Meet Standards 1 Mar 08 Meets Standards 1 Mar 07 Meets Standards 17 Apr 06 Meets Standards 29 Apr 05 Meets Standards 7 May 04 Meets Standards 7 May 03 Meets Standards 31 May 02 Meets Standards *Contested Report The applicant separated from the Regular Air Force on 13 Aug 10, and transferred to the Air Force Reserves on 14 Aug 10. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C, D, E, F, and G. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of her request to remove the Article 15 and states, in part, nonjudicial punishment is authorized by Article 15, UCMJ (10 U.S.C. § 815), and governed by the Manual for Courts-Martial (Part V) and AFI 51-202, Nonjudicial Punishment. A commander considering a case for disposition under Article 15 exercises personal discretion in evaluating the case, both as to whether nonjudicial punishment is appropriate, and, if so, as to the nature and amount of punishment. This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. Service members first must be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander's intent to impose the punishment. The member may consult with a defense counsel to determine whether to accept the nonjudicial punishment or demand trial by court-martial. Accepting the proceedings is simply a choice of forum; it is not an admission of guilt. Nonjudicial punishment is also not, when imposed, a criminal conviction. The applicant's argument that lesser administrative action would have been more appropriate is not supported by her application. A commander may dispose of allegations against a service member in a number of ways, including no action, administrative action, nonjudicial punishment or trial by court-martial. The commander's decision to deal with the applicant's offense in an Article 15 was clearly within the scope of his authority. Furthermore, the imposing commander, Major General XXX, said in his memorandum to the Board that, even in hindsight, he would still offer the applicant an Article 15. The applicant also argues that a set aside of her Article 15 is appropriate because of the extenuating and mitigating circumstances surrounding the incident, as well as the extreme and far-reaching nature of the collateral consequences of the Article 15. A set aside of nonjudicial punishment restores the member to the position held before imposition of the punishment, as if the action had never been initiated and should be used strictly in the rare and unusual case where a genuine question about the service member's guilt arises or where the best interests of the Air Force would be served. The applicant's admits that she engaged in an inappropriate email and phone relationship with an enlisted member and that she kissed him goodbye at the airport. The interests of the Air Force are not served by setting aside an Article 15 which properly documents the misconduct committed by the applicant. The applicant's case, although compelling, is not strong enough to support a set aside of her Article 15. The complete AFLOA/JAJM evaluation is at Exhibit C. HQ AFPC/DPSID recommends denial to remove the contested report. DPSID states the applicant did file an appeal through the ERAB under the provisions of AFI 36-240l, Correcting Officer and Enlisted Evaluation Reports; however, the ERAB was not convinced that the report was unjust or inaccurate and denied the applicant’s request for relief. The complete AFPC/DPSID evaluation is at Exhibit D. HQ AFPC/DPAPFE makes no recommendation and states the member will not be competitive for IDE with derogatory data in her records. If the applicant’s request is approved, she will have to seek developmental education through the US Reserves Component in accordance with AFMAN 36-8001, Reserve Personnel Participation and. Training Procedures. The applicant may also earn “IDE Select” status if she is given an opportunity to meet a SSB. The complete AFPC/DPAPFE evaluation is at Exhibit E. HQ AFPC/DPSOO recommends denial of the applicant’s request for SSB consideration. DPSOO states their evaluation of the applicant’s request requires they rely on the advisory opinions from the Air Force Office of Primary Responsibility (Exhibits C and E). As such, based on their recommendations to deny removing the Article 15 and OPR, they recommend denial for SSB consideration. The complete AFPC/DPSOO evaluation is at Exhibit F. HQ AFPC/PB recommends denial of her request to remove her Article 15 retroactively from her OSR. PB states that AFI 36-2608, Article 15, Record of Nonjudicial Punishment Procedures, Chapter 8 establishes procedures for filing the Article 15 into the OSR as well as removal/early removal procedures. Paragraph 8.2., specifically states the decision to file the NJP is subject to review by the next senior Air Force commander. The review authority may either concur or nonconcur with the commander imposing the NJP and this decision is final. The AFI also states, the NJP will not be removed until receipt of an approved request for its removal or early removal is approved by the appropriate authority. Unless requested under the early removal as an exception to policy the removal will not be processed until the officer is afforded one In the Promotion Zone (IPZ) or Above the Promotion Zone (APZ) consideration. The complete AFPC/PB evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states the purpose of her appeal is to first establish the appropriate authority to determine the best interest of the Air Force and the opinion of that authority, which was not addressed in any advisory. Second, to establish the arbitrary nature of the punishment, as deemed by the issuing authority. Finally, to provide additional supporting evidence generated since the initial submission of her request. She further expounds on the aforementioned statements in her rebuttal (Exhibit I). The applicant refers to the JAJM advisory, dated 8 Sep 11, and states JAJM asserts that "claims of error or injustice are not compelling enough to warrant action by the Board with regard to Article 15 action" because the commander was within the scope of his authority. She argues that the scope of the commander’s authority also allows him to set aside the punishment. JAJM focuses on the second paragraph of his 11 Apr 11 letter and ignores the third paragraph where Major General XXX clearly states his support of a set aside of his punishment for the good of the Air Force. He states, "More than anyone I ever met in my 32 years in the Air Force (Capt XXX) deserves another chance ... do what I think is the right thing by recognizing that the system is not perfect and set aside the Article 15." JAJM further states that a set aside is to be used "where the best interests of the Air Force would be served." The applicant asks, “Who better to determine whether or not a set aside is in the best interest of the Air Force than the imposing commander?” She states the same commander has submitted a second letter to the AFBCMR in support of granting her appeal. She states that her level of commitment, personal character and strong work ethic should outweigh a onetime lapse in judgment during a very difficult personal situation. AFI 51-202 states the purpose of NJP is to provide commanders "with an essential and prompt means to promote positive behavior changes in the service member." In his reprimand, Major General XXX told her she had to work hard and win back the trust of her superiors. She refers the Board to her actions as reflected in the four OPRs following the Article 15, as well as the recent Letter of Evaluation (LOE) from Afghanistan where she was recommended for a Bronze Star Medal. She understands she made a mistake but mistakes allow people to grow in character, which makes them better Air Force officers. In his March 2012 letter, Major General XXX clearly supports her retention in the Air Force. The only way she will be retained in the Air Force is with the removal of the Article 15 from her record so she can be promoted. In support of her rebuttal she includes a Memorandums from the issuing commander and the 45th Space Wing Commander, a Character reference letter, her Letter of Evaluation from Deployed Task Force and her OPR ending 6 Jul 11. The applicant's complete response, with attachments, is at Exhibit I. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After careful consideration of the applicant’s complete submission we believe it to be in the interest of justice to grant the requested relief. In reaching our decision, we were greatly influenced by the support the applicant has presented from her rating chain at the time of the alleged offenses and from her current rating chain. In cases of this type that seek to overturn the action of a commander, it is the normal practice of the Board to accord great deference to a commander’s actions unless evidence of abuse of discretionary authority is presented or we are led to conclude the commander’s actions were arbitrary and capricious. In our view, the circumstances of the instant case make it reasonable to accord a degree of deference to the recommendations of the applicant’s commanders to grant her relief. We note the recommendations of the Air Force offices of primary responsibility to deny the requested relief. However, their recommendations appear to be based primarily on the fact the actions taken against the applicant were properly executed in accordance with governing policy. We too fail to find that any of the actions taken were improper at the time of execution or were not done in accordance with pertinent policy. Nevertheless, we must note that this Board may base its decisions on matters of equity and justice, rather than simply on whether rules and regulations were followed. After considering the impact of the Article 15 on the applicant’s Air Force career, we believe it would be appropriate to grant relief. In fact, based on the unequivocal support of her rating chain, we believe that to grant relief in this instance may also be in the best interest of the Air Force. While the Article 15 and other actions were proper at the time of their execution, the applicant has shown through her performance and actions since that her misconduct during the period in question was an aberration and that the Article 15 has served its rehabilitative purpose. Therefore, we believe it would be in the interest of justice to set aside the Article 15, remove the contested OPR ending 15 Nov 08, and for her corrected record be considered for promotion to the grade of major by SSB for the CY11 Central Selection Board. We note that DPSIP states if the applicant is considered for SSB she will be afforded an opportunity to earn an IDE slot. Accordingly, we recommend her record be corrected as indicated below. 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 issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. The nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, initiated on 3 October 2008 and imposed on 9 December 2008, be declared void and expunged from her records, and all rights, privileges and property of which she may have been deprived be restored. b. The Company Grade Officer Performance Report, AF IMT 707B, rendered for the period 2 March 2008 through 15 November 2008, be declared void and removed from her records It is further recommended that her record be considered for promotion to the grade of major by a Special Selection Board for the Calendar Year 2011 Major Central Selection Board. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 20 Mar 12, under the provisions of AFI 36-2603: The following documentary evidence was considered in AFBCMR BC- 2011-02911: Exhibit A. DD Form 149, dated 20 Jul 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 8 Sep 11. Exhibit D. Letter, AFPC/DPSID, dated 17 Nov 11. Exhibit E. Letter, AFPC/DPAPFE, dated 16 Dec 11. Exhibit F. Letter, HQ AFPC/DPSOO, dated 10 Jan 12. Exhibit G. Letter, AFPC/PB, w/atchs, dated 1 Feb 12. Exhibit H. Letter, SAF/MRBR, dated 10 Feb 12. Exhibit I. Rebuttal, Applicant, dated 1 Mar 12, w/atchs. AFBCMR BC-2011-02911 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code, it is directed that: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. The nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, initiated on 3 October 2008 and imposed on 9 December 2008, be, and hereby is, declared void and expunged from her records, and all rights, privileges and property of which she may have been deprived be restored. b. The AF IMT 707B, Company Grade Officer Performance Report, rendered for the period 2 March 2008 through 15 November 2008, be, and hereby is, declared void and removed from her records It is further directed that her record be considered for promotion to the grade of major by a Special Selection Board for the Calendar Year 2011 Major Central Selection Board.