RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04128 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ 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. His rank of staff sergeant (SSgt/E-5) be restored with his original date of rank (DOR). 3. His referral Enlisted Performance Report (EPR) be declared void and removed from his records. 4. His promotion test results for cycle 10E6 be published, and he be awarded the appropriate line number to the rank of technical sergeant (TSgt/E-6). ________________________________________________________________ APPLICANT CONTENDS THAT: 1. The accusations that formed the basis of the action came to light during an unprofessionally led Human Relations class where the instructor told the trainees that nothing would leave the room in order to coerce information, which gave the trainees license to stretch the truth. Once one trainee spoke up about an incident, others followed suit, regardless of whether or not there was actual evidence of misconduct. Most of the original trainee statements were hearsay and not actual fact. 2. The specifications listed in the NJP are not supported by the evidence. Any contact with the trainees was unintentional and certain statements that indicate otherwise were authored by individuals who were not of the utmost character as evidenced by their repeated violations of integrity and other standards as cited in their training records. Furthermore, the statements of other trainees call into question the character of his accusers and support the fact that he never intentionally poked, grabbed, or placed hands on other trainees. 3. He was not given due process. He was charged and then demoted. He was offered NJP on 15 Mar 11, which would lead a casual observer to believe he had already been found guilty before the investigation was even completed. 4. Given the evidence, the contested actions were extremely harsh and unwarranted as AFI 51-202, paragraph 3.4, indicates that proof beyond a reasonable doubt of each element of every offense by legal and competent evidence is a prerequisite to conviction. Whether such proof is available should be considered before initiation of action under Article 15. 5. His subsequent referral EPR should be expunged from his record as it was a by-product of the unsubstantiated NJP action. Additionally, while NJP was imposed and he was relieved from his military training instructor (MTI) duties, the “1” rating issued is not reflective of his duty performance over the course of the reporting period as evidenced by the character statement of the supervisor to which he was assigned subsequent to being relieved of his MTI duties. 6. Finally, the punishment was disproportionate to the circumstances as his demotion will unfairly result in the end of his career. While NJP is intended as a rehabilitative tool, his demotion to senior airman will result in his separation at ten years of service under high year tenure (HYT) rules. In support of his appeal, the applicant provides copies of his AF Form 3070A, Record of Nonjudicial Punishment Proceeding, multiple witness statements from trainees and coworkers, excerpts from the training records of several trainees who reported him, documentation of his success as a Military Training Instructor, and documentation related to the administration of his NJP and referral EPR. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 30 Mar 11, the applicant’s commander notified him that he was considering punishing the applicant under Article 15 of the UCMJ. The reasons for the action were as follows: Violation of Article 93 of the UCMJ 1. He did, at or near Lackland Air Force Base (AFB), TX, between on or about 1 Feb 11 and on or about 4 Mar 11, maltreat basic trainees, persons subject to his orders, by ordering trainees to use offensive and demeaning language while on the telephone by using profanity in violation of Article 93 of the UCMJ. Violation of Article 128 of the UCMJ 2. He did, at or near Lackland AFB, TX, between on or about 1 Feb 11 and on or about 4 Mar 11, unlawfully push an Airman on the chest with his forearm. 3. He did, at or near Lackland AFB, TX, between on or about 1 Feb 11 and on or about 4 Mar 11, unlawfully push four Airmen’s glasses against their faces using his hands. 4. He did, at or near Lackland AFB, TX, between on or about 1 Feb 11 and on or about 4 Mar 11, unlawfully grab and Airman on the face with his hand. On 24 Mar 11, after consulting with legal counsel, the applicant acknowledged receipt of the action and elected to waive his right to court-martial and accept NJP proceedings, submit statements on his behalf, and appear before the commander. On 30 Mar 11, the commander determined the applicant committed one or more of the allegations, with the exception of the specification related to Article 93 of the UCMJ, and imposed punishment of a reprimand and a reduction to the grade of Senior Airman (E-4), with a new date of rank of 30 Mar 11. On 1 Apr 11, the applicant appealed the NJP to the issuer’s commander. His appeal was denied on 4 Apr 11, his commander subsequently directed an Unfavorable Information File (UIF) be established. The applicant acknowledged receipt of the action on 6 Apr 11. On 16 May 11, the contested EPR was referred to the applicant due to comments related to the NJP. The applicant submitted a written response on 24 May 11. On 25 Jun 12, he was honorably discharged and credited with ten years and one day of active service. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility which are included at Exhibits C, D, E, and F. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to remove the NJP, indicating there is no evidence of an error or injustice. Setting aside an Article 15 action restores the member to the position held before imposition of the punishment, as if the action had never been initiated and should not routinely be granted. Rather, set aside is to be used strictly in the unusual case where a genuine question about the service member’s guilt arises or where the best interest of the Air Force would be served. The applicant alleges injustice in that the evidence was insufficient to meet the legal standards of beyond a reasonable doubt. He argues that young trainees typically do not like their training instructors and will blow events out of proportion in an attempt to excuse their own behavior. He argues that some of the trainees making accusations against him had reputations for their lack of veracity as to the truthfulness and the forum of non- attribution, where these accusations were originally made, was unprofessional and conducive to false claims of abuse. The applicant, however, does not allege error in how the Article 15 was processed. The applicant’s rights were observed throughout the process of the Article 15. The commander, at the time of the Article 15, had the best opportunity to evaluate the evidence in the case, as evidenced by the fact the commander was persuaded by the applicant to withdraw the specification alleging maltreatment. With that perspective, the commander exercised the discretion the applicant granted him when he accepted NJP proceeding in lieu of his right to be tried by a court-martial. Moreover, the commander’s decision was scrutinized by the applicant’s exercise of his right of appeal to higher authorities. The legal review process showed that the commander did not act arbitrarily or capriciously in making his decision. The applicant does not make a compelling argument that the Board should overturn the contested action on the basis of injustice. The commander’s ultimate decision on the Article 15 action, while arguably harsh, is firmly based on the evidence of the case and the punishment rendered was well within the limits of the commander’s authority and discretion. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to remove the contested referral EPR, indicating there is no evidence of an error or injustice. The applicant contends that his EPR was extremely harsh and unwarranted due to his belief that he is innocent of the offenses as reported on the referral EPR. Specifically, he contends there was insufficient proof beyond a reasonable doubt to the specifications. As proof, the applicant provides numerous witness/victim statements which indicate that though he engaged in the accused behavior, it was neither intentional nor meant to be harmful, and that a number of witnesses were untruthful. Ultimately, he did accept NJP, waiving his right to a court-martial and in accordance with AFI 36-2406, evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions, such as NJP, letters of reprimand, admonishment, or counseling have been taken. In this case, the applicant’s rating chain chose to comment on the contested report. The applicant also contends the action was disproportionate to the offense in that his complete record of service was not appropriately weighed against the circumstances of his mistakes. However, his rating chain was in the best position to evaluate duty performance, both on and off-duty, during the contested rating period. The Air Force places great trust in this process and only by a preponderance of the evidence could a case be made that this trust was violated in this specific circumstance. The applicant has attempted to make a sympathetic appeal to fairness, but ultimately has not proven in any way that the evaluation made by the rating chain was inappropriate, unfair or biased. The fact remains that he received an Article 15 during the contested rating period for “maltreatment/maltraining of basic trainees entrusted to his care,” and had the opportunity to appeal this action, but the appeal was denied. The applicant’s evaluators chose to document this behavior on his EPR as the behavior is unacceptable performance of an Airman. An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants corrective action or removal from and individual’s record. The applicant has not provided compelling evidence to show the report is unjust or inaccurate as written. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. AFPC/DPSOE defers to the recommendations of AFLOA/JAJM and AFPC/DPSID. The applicant requests reinstatement of his rank to SSgt, and that his test results for cycle 11E6 (TSgt) be published with any applicable line number awarded to him. (he is likely referring to cycle 10E6 as he has never tested for 11E6). Based on his SSgt DOR, the first time he was eligible for promotion consideration to TSgt was cycle 10E6. He tested for promotion on 16 Mar 10. Should the Board remove his Article 15 and referral EPR, they could direct reinstatement of the rank of SSgt and direct the applicant be provided supplemental promotion consideration beginning with cycle 10E6. A complete copy of the AFPC/DPSOE evaluation is at Exhibit E. AFPC/DPSIMC recommends denial concerning the applicant’s request to void and remove this Unfavorable Information File (UIF). The applicant was charged with violating Article 28 of the UCMJ, and was reprimanded by receipt of NJP. The UIF was established correctly IAW AFI 36-2907, Unfavorable Information File Program. A complete copy of the AFPC/DPSIMC evaluation is at Exhibit F. ________________________________________________________________ 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 G). ________________________________________________________________ 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 opinions and recommendations of the Air Force offices of primary responsibility, and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Notwithstanding the applicant’s assertions that the evidence was insufficient to support the specifications for which the applicant was punished, 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, which would have required a different standard for determining whether he committed the alleged offenses or not. 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, we believe the NJP action was proper and we do not find the commander’s actions to be arbitrary or capricious. Moreover, we note that although the punishment may have ultimately resulted in the applicant’s eventual separation due to high year of tenure (HYT) rules, he has presented no evidence to indicate the commander did not fully consider this was an outcome of the punishment. Therefore, in absence of evidence the applicant was denied rights to which he was entitled, appropriate standards were not applied, or that his commander abused his discretionary authority, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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-2011-04128 in Executive Session on 19 Jul 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 13 Oct 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 2 Dec 11. Exhibit D. Letter, AFPC/DPSID, dated 9 Apr 12. Exhibit E. Letter, AFPC/DPSOE, dated 27 Apr 12. Exhibit F. Letter, AFPC/DPSIMC, dated 29 Feb 12. Exhibit G. Letter, SAF/MRBR, dated 11 May 12.