RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03187 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The nonjudicial punishment (NJP), imposed under Article 15 of the Uniform Code of Military Justice (UCMJ), be declared void and removed from his records. 2. He be reimbursed the fine of $1,546.00 he forfeited as a result of the Article 15 action. 3. His dates of rank for senior airman (E-4) and staff sergeant (E-5) be adjusted accordingly. ________________________________________________________________ APPLICANT CONTENDS THAT: He unjustly received NJP, which included a fine of $1,546.00 and a suspended reduction to the rank of airman (E-2) for Dereliction of Duty for operating a motorcycle prior to completing the Motorcycle Safety Foundation Course. However, at the time he received NJP, the Motorcycle Safety Foundation Course was not a requirement in the relevant Air Force Instruction (AFI) and he had been approved to operate his motorcycle by his squadron safety officer. The reduction in rank delayed his promotion to E-4, and prevented him from being considered for E-5 in 2007. A Line of Duty (LOD) Determination completed in 2011 by his Wing Judge Advocate supports his contention that the injuries he suffered in the motorcycle accident were in the LOD. In support of his appeal, the applicant provides copies of his AF Form 3070A, Record of Nonjudicial Punishment Proceeding, an excerpt from AFI 91-207, The U.S. Air Force Traffic Safety Program, and a memo from his wing Judge Advocate concerning his LOD Determination. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered active duty on 29 Jul 03. On 28 Jan 12, he was relieved from active duty and permanently retired for physical disability and was credited with eight years and six months of honorable active duty service. The remaining relevant facts pertaining to this application, extracted from the applicant’s master personnel records, are described in the letters prepared by the Air Force offices of responsibility which are included at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. A commander considering a case for disposition under Article 15 exercises personal discretion in evaluating the case, both as to whether NJP is appropriate, and, if so, as to the nature and amount of punishment. A review of the process of the Article 15 shows that the applicant’s rights during the Article 15 process were observed without exception. The applicant’s evidence in support of his contention that he was not derelict in his duty is, in part, an opinion of the Wing Legal Office in the matter of the applicant’s LOD determination. A LOD determination for the applicant’s accident was accomplished in June 2011. The accident occurred in December 2004. The author of the legal office opinion noted that the LOD determination was most likely being accomplished almost 7 years after the accident because of the possibility of permanent disability. A LOD determination, though, has a different standard and perspective than a charge of dereliction of duty under the UCMJ. Ultimately, the applicant has the burden of providing evidence to show the error or injustice that he is alleging with regard to the Article 15 action and he has not done so. While the applicant appealed the commander’s decision at the time of the Article 15, he only asked for the commander to reduce the amount of his extra work, and did not contest the charge of dereliction of duty. Evidence in a case like the applicant’s is normally destroyed after three years. In a case where the evidence upon which the commander at the time of the action based his decision is not available, an evaluation of error in the action or the commander’s decision should give great weight to the presumption of regularity in the processing of the Article 15. Absent evidence to the contrary, the commander’s decision should be considered to be based on sufficient evidence of the applicant’s misconduct. The commander did not act in an arbitrary or capricious manner in imposing the punishment and a legal review of the action found it to be legally sufficient. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE recommends denial, deferring to the AFLOA/JAJM evaluation. The applicant was an A1C (E-3) with a Date of Rank (DOR) of 29 Jul 03 at the time the punishment was imposed. He would have been eligible for promotion to Senior Airman (E-4) effective 29 Nov 05 had it not been for his suspended reduction through 28 Feb 06. Should the Board remove the Article 15, the applicant’s DOR to E-3 would become 29 Nov 05, and he would be eligible for supplemental promotion consideration to staff sergeant (E-5) beginning with cycle 06E5. However, based upon comparing the applicant’s test scores and the scores required for promotion to staff sergeant at that time, the applicant would not have become a staff sergeant during any earlier promotion cycle than he actually did. Therefore, removing the Article 15 action would have no effect on his DOR to E-4. A complete copy of the AFPC/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 16 Dec 11 for review and comment with 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ 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 an 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 AFLOA/JAJM and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. The applicant’s contentions are duly noted; however, we do not find these assertions or the documentation provided, namely the LOD determination rendered years after the matter under review, sufficient to convince us the commander exceeded his discretionary authority or acted in an otherwise arbitrary or capricious manner. In this respect, we note the contested Article 15 was found legally sufficient and it appears the applicant was provided all of the rights to which he was entitled, including the right to refuse the Article 15 and demand trial by court martial. By waiving his right to trial by court-martial, he accepted the commander’s evaluation of the evidence and his judgment as to the applicant’s guilt or innocence and punishment. Therefore, in absence of evidence the applicant was denied rights to which he was entitled or appropriate standards were not applied, 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 issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2011-03187 in Executive Session on 1 March 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Aug 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 26 Oct 11. Exhibit D. Letter, AFPC/DPSOE, dated 5 Dec 11. Exhibit E. Letter, SAF/MRMR, dated 16 Dec 11.