RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03325 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The non-judicial punishment (NJP), imposed on 23 Feb 11 under Article 15 of the Uniform Code of Military Justice (UCMJ), be declared void and removed from her records. 2. She be reinstated to the rank of Senior Airman (E-4) with a date of rank (DOR) of 2 Feb 11. ________________________________________________________________ APPLICANT CONTENDS THAT: She had inadequate legal representation. Her Area Defense Counsel (ADC) was located in a different country, making it difficult to receive proper legal advice. In fact, her ADC indicated that she was too busy to research her concerns and provide appropriate legal advice. The contested NJP was inappropriate as evidenced by the subsequent recommendation of the Administrative Discharge Board which determined she did not commit two of the three offenses which formed its basis. In support of her appeal, the applicant provides copies of her AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt), her personal presentation and appeal to her commander concerning the contested Article 15, two character references, the Administrative Discharge Board findings, her records review listing, and several Enlisted Performance Reports (EPRs). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The following facts were extracted from the Air Force Advisories: On Nov 10, the applicant was a staff sergeant (E-5) deployed to Afghanistan and assigned to the Combined Security Transition Command-Afghanistan (CSTC-A). On 2 Feb 11, the applicant received an Article 15 (nonjudicial punishment) for wrongfully allowing a person of the opposite gender to visit her quarters on diverse occasions between on or about 1 Nov 10 and on or about 23 Jan 11. The punishment was a reduction in rank from staff sergeant (E-5) to senior airman (E-4). On 23 Feb 11, the applicant’s commander offered her nonjudical punishment a second time when additional allegations came to light. The charges were: 1. Failure to obey a lawful order, in violation of Article 92 of the UCMJ, to have no contact with a Private First Class (PFC), who had previously shared quarters with her, by contacting the PFC through a third party. 2. Violation of a lawful order, in violation of Article 92 of the UCMJ, by wrongfully allowing a person of the opposite gender to visit her quarters between on or about 1 Oct 10 and on or about 31 Oct 10. 3. Retaliating against the PFC after she provided a witness statement in the investigation of the applicant in violation of Article 134 of the UCMJ by distributing a photograph of the PFC standing in front of a naked man lying on her barracks room bed. On 26 Feb 11, the applicant acknowledged receipt of the action and indicated that she had consulted legal counsel. She waived her right to a court-martial and accepted nonjudicial punishment proceedings, submitted a written statement in her behalf, and requested a personal appearance before the commander. On 1 Mar 11, her commander administered nonjudical punishment consisting of a reprimand and a reduction to the grade of Airman (E-2) with a date of rank of 26 Feb 11, with reduction below Airman First Class (E-3) suspended until 15 Aug 11. On 5 Mar 11, the applicant submitted an appeal of the punishment of reduction in grade, but her appeal was denied. On 14 Jul 11, an Administrative Discharge Board was convened to consider the applicant’s involuntary discharge from the Air Force. After considering all the evidence in the case, a majority of the voting members made the following findings: * a. The applicant did, between on or about 1 Nov 10, and on or about 23 Jan 11, violate a lawful general order, to wit: paragraph 2.n., General Order Number 1B, dated 14 Jul 10, by wrongfully allowing a person of the opposite gender to visit her quarters. **b. The applicant did not, on or about 2 Feb 11, having knowledge of a lawful order issued by her squadron commander not to have contact with a certain PFC, to include contact through a third party, failed to obey that order by wrongfully telling a third party to contact the PFC to let her know the applicant had a certain picture of the PFC that the applicant was going to take to the Inspector General’s office. **c. The applicant did not, between on or about 1 Oct 10, and on or about 31 Oct 10, violate a lawful general order, to wit: paragraph 2.n., General order Number 1B, dated 14 Jul 10, by wrongfully allowing a person of the opposite gender to visit her quarters. **d. The applicant did, between on or about 1 Feb 11, and on or about 9 Feb 11, retaliate against the aforementioned PFC after the PFC provided a witness statement in a law enforcement investigation of which the applicant was the subject, by distributing a photograph of the PFC standing in front of a naked male lying on the PFC’s barracks room bed, which conduct was prejudicial to good order and discipline in the Armed Forces and is of a nature to bring discredit upon the armed Forces. * Basis of the first Article 15 ** Basis of the second, contested, Article 15 On 2 Aug 11, the discharge authority concurred with the recommendation of the Administrative Discharge Board and directed the applicant’s retention. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or injustice. An examination of the Article 15 in question shows no error in processing. There is no evidence to support the applicant’s claim that she received less than adequate legal counsel or advice. It is not uncommon for an Airman facing nonjudicial punishment to consult with an area defense counsel over the phone when one is not available in the same location as the Airman. The applicant also says her defense counsel said she was too busy to provide legal advice to the applicant or to research her concerns. However, this allegation is undermined by the fact the applicant initialed block 3a of the Form 3070, Record of Nonjudicial Punishment Proceedings, which indicated that she had consulted with a lawyer before making her decision to accept the Article 15. It appears the discharge board found that the applicant did not commit two of the three offenses with which the applicant was charged. The relevance of the discharge board’s findings with regard to the commander’s decision on the Article 15 is questionable. It is important to point out, though, that the commander can impose the full range of nonjudicial punishment based on only one charge and specification. In this case, even if more weight is given to the discharge board’s determination than the commander’s, the discharge board still found that the applicant had committed the third offense on the Article 15-- retaliation against a fellow military member by distributing a photograph of that military member standing in front of a naked male lying on her barracks room bed. Based on only this offense, the commander could still have given the applicant an Article 15 and could still have imposed the punishment that the applicant ended up receiving. The applicant’s guilt as to at least one of the offenses remains firmly established on the basis that the applicant offered the Board, as a guide,the determination of her discharge board. In the end, resolution of the allegations against the applicant required an evaluation of the available evidence and a determination of whether or not it was sufficient to establish the applicants’ guilt. In this case, the applicant’s commander was in the best position to evaluate the evidence available and to weigh that against the applicant’s version of events. The exercise of that discretion should generally not be reversed or otherwise changed by the Board absent good cause. Based upon the evidence presented in the case and considering the other factors mentioned by the applicant, the commander was clearly not acting in an arbitrary or capricious manner when he found nonjudicial punishment appropriate to the offense and not unfairly harsh. A complete copy of the AFLOA/JAJM advisory is at Exhibit C. AFPC/DPSOE defers to AFLOA/JAJM’s recommendation on dispensation of the Article 15. Her new DOR to A1C is 26 Feb 11. She also received a referral EPR for the period 16 Jul 10 – 15 Jul 11. Based on her DOR, she will not be eligible for promotion to SrA until 26 Oct 12 (20 months time-in-grade), provided she receives a nonreferral EPR with a close out date on or before 26 Oct 12. A complete copy of the AFPC/DPSOE advisory is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 4 Dec 11 for review and comment within 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 not timely filed; however it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant is requesting her nonjudicial punishment (Article 15), dated 23 Feb 11, be removed from her record. While the Board would normally give great deference to the decision of the commander, the unique characteristics of this case merit granting the request. We took particular note of the fact that the applicant’s Administrative Discharge Board determined she did not commit two of the three charges upon which the Article 15 was based. Furthermore, the remaining charge the discharge board determined she was guilty of was an action she undertook only after first seeking advice from a field grade officer and a security forces NCOIC, and then following the advice she received. We gave great credence to the memos from the Security Police Navy Lieutenant Commander and Army NCOIC, each of whom admitted to providing the applicant with advice that directly contributed to her receiving this Article 15. Finally, her otherwise superlative military record appears to be a mitigating factor in her behalf. Therefore, we recommend her records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt) (Article 15), dated 23 Feb 11, be declared void and expunged from her records, and all rights, privileges and property of which she may have been deprived be restored. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-03325 in Executive Session on 12 Apr 12, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-03325 was considered: Exhibit A. DD Form 149, dated 20 Aug 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 5 Oct 11. Exhibit D. Letter, AFPC/DPSOE, dated 17 Oct 11. Exhibit E. Letter, SAF/MRBR, dated 4 Nov 11.