RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01841 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His non-judicial punishment (NJP), imposed under Article 15 of the Uniform Code of Military Justice (UCMJ), be declared void and removed from his records. 2. His referral Enlisted Performance Report (EPR) rendered for the period 15 Aug 06 through 15 Mar 07, be declared void and removed from his record. 3. He be reinstated to the rank of Technical Sergeant (TSgt) with back pay and an adjusted date of rank (DOR). 4. The period of performance of his referral EPR be corrected. (Administratively corrected) ________________________________________________________________ APPLICANT CONTENDS THAT: He met an Administrative Discharge Board (ADB) which found he did not commit the two acts he was punished for under the Article 15. Therefore, the Article 15, reduction in rank, and resulting referral EPR are unjust. In support of his appeal, the applicant provides copies of the ABD Record of Board Proceedings, and his referral EPR package. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant initially entered the Air Force on 26 Aug 92 and was progressively promoted to the rank of TSgt. On 28 Feb 07, the applicant’s commander issued him nonjudicial punishment under Article 15 of the UCMJ for violation of UCMJ, Article 134, based upon: 1. He did, on or about 22 Apr 06, commit an indecent assault upon a female staff sergeant, a person who was not his wife, by grabbing her hand and rubbing it on his genitals and by pulling down her shorts and underwear and attempting to place his penis inside her vagina with intent to gratify his sexual desires. 2. He did, on or about 22 Apr 06, unlawfully enter the dwelling house of the same female staff sergeant. For these acts, the applicant was punished by a reduction in grade to staff sergeant, with a date of rank of 7 Mar 07, and a reprimand. The applicant was rendered a referral EPR for the period 15 Aug 06 through 15 Mar 06 (sic), which included the following statements: “During this period member indecently assaulted a female Airman for which he received an Article 15/demotion,” and “Vast potential—demonstrated poor judgment unbecoming of an Air Force NCO—consider for promotion.” On 18 Mar 09, the applicant’s commander issued him nonjudicial punishment under Article 15 of the UCMJ for violation of UCMJ, Article 111: the applicant did, on or about 2 Feb 09, physically control a vehicle, to wit: a passenger car, while drunk. For this act, the applicant was punished by reduction to the grade of Senior Airman, with a new date of rank of 18 Mar 09; forfeiture of $1,109 pay per month for two months, suspended through 17 Sep 09, after which time it was to be remitted without further action, unless sooner vacated; and, a reprimand. On 22 Oct 09, an ADB 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 not, on or about 22 Apr 06, commit an indecent assault upon the female staff sergeant, a person who was not his wife. b. *The applicant did not, on or about 22 Apr 06, unlawfully enter the dwelling house of the same female staff sergeant. c. **The applicant did, on or about 2 Feb 09, on Ramstein Air Base, Germany, physically control a vehicle while drunk. * Basis of the first Article 15 (contested) ** Basis of the second Article 15 (uncontested) The ABD elected to retain the applicant on active duty. On 31 Aug 12, the applicant was relieved from active duty and retired from active duty, effective 1 Sep 12, due to attaining his high year of tenure in the rank of staff sergeant. The remaining relevant facts pertaining to this application are contained in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C, D, and E. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial with regard to applicant’s request to void his Article 15, and defers to other Air Force offices for recommendations on the referral EPR and reduction in rank. The applicant alleges injustice in that an ADB, in 2009, made the determination that he did not commit the crimes for which he received nonjudicial punishment in 2007. However, what the applicant fails to understand is that the ADB was only making determinations with regard to what it would consider in the course of making a retention decision. The commander at the time of the Article 15 had the best opportunity to evaluate the evidence in the case. With that perspective, the commander exercised the discretion that the applicant granted him when the applicant accepted the Article 15 and found nonjudicial punishment appropriate in the case. The legal review process showed 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 commander’s original nonjudicial punishment decision as the basis of injustice. A complete copy of the AFLOA/JAJM advisory is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to remove his referral EPR. AFI 36-2406, Officer and Enlisted Evaluation System, states that evaluators are strongly encouraged to comment on performance reports on misconduct that reflects a disregard of the law, whether civil law or the Uniform Code of Military Justice (UCMJ), or when adverse actions such as Article 15s, Letters of Reprimand, Admonishment, Counseling, or placement on the Control Roster have occurred. The applicant’s chain of command did choose to enter comments in the applicant’s EPR, making it a referral. The applicant was given the opportunity to rebut the administrative actions as well as the referral EPR, and declined to do so. No evidence has been provided to indicate any of the administrative actions commented on in the report have been rescinded or otherwise invalidated. Based upon the presumed sufficiency of the Article 15, its mention in the applicant’s contested report was appropriate. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The applicant has not provided compelling evidence to show his referral EPR is unjust or inaccurate as written. However, administrative relief has been granted to correct the period of performance reflected on the referral EPR and associated referral memorandum. A complete copy of the AFPC/DPSID advisory, with attachments, is at Exhibit D. AFPC/DPSOE does not make a specific recommendation concerning the applicant’s request to restore his rank of TSgt, but provides background information on the applicant’s promotion history. The applicant was selected for promotion to TSgt during cycle 02E6 with a 1 Jun 03 DOR. He was tentatively selected for promotion to Master Sergeant (MSgt) during cycle 06E7 with PSN 3886.0, which would have incremented 1 Jun 07. However, on 28 Feb 07, he received an Article 15. His punishment consisted of a reduction to the rank of SSgt and a reprimand. The applicant also received the contested referral EPR. On 10 Mar 09, the applicant received another Article 15 for driving under the influence. His punishment included a reduction to the grade of Senior Airman (SrA). Should the Board grant the relief requested, they could direct the restoration of rank to TSgt with a DOR and effective date of 1 Jun 03. Since the member was already tentatively selected for promotion to MSgt during the cycle 06E7, the Board could reinstate his promotion to MSgt with a DOR of 1 Jun 07. If these corrections are made, the Mar 09 Article 15 would need to be corrected to reflect a reduction from MSgt to TSgt versus from SSgt to SrA. The applicant’s DOR to TSgt would then become 18 Mar 09, rendering him eligible for supplemental promotion consideration to MSgt beginning with cycle 11E7 (provided he is otherwise eligible and recommended by his commander). A complete copy of the AFPC/DPSOE advisory is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 7 Aug 12 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 timely filed 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We find no evidence of error in this case and after thoroughly reviewing the documentation the applicant submitted in support of his appeal, we do not believe he has suffered from an injustice. Evidence has not been presented which would lead us to believe his nonjudicial punishment, referral EPR, or discharge were improper. The Board notes the Administrative Discharge Board (ADB) found the applicant did not commit the two offenses for which he received an Article 15 on 5 Mar 07. However, while arriving at its findings, an ADB may or may not have considered the same set of facts which were available to the original commander responsible for determining whether or not to issue nonjudicial punishment. Thus, an ADB does not have the authority to nullify an earlier nonjudicial punishment, reviewed and determined to be legally sufficient. The commander at the time of the Article 15 had the best opportunity to evaluate the evidence in the case. In cases of this nature, we are not inclined to disturb the judgments of the commanding officers absent a strong showing of abuse of their discretionary authority. We have no such showing here. The evidence indicates that, during the entire process, the applicant was offered every right to which he was entitled. The applicant has not provided any evidence showing the responsible commander or the higher authorities abused their discretionary authority; that his substantial rights were violated; or that any actions taken exceeded the maximum authorized by the UCMJ. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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-2012-01841 in Executive Session on 29 Jan 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-01841 was considered: Exhibit A. DD Form 149, dated 21 Mar 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 15 Jun 12. Exhibit D. Letter, AFPC/DPSID, dated 6 Jul 12. Exhibit E. Letter, AFPC/DPSOE, dated 18 Jul 12 Exhibit F. Letter, SAF/MRBR, dated 7 Aug 12. Exhibit G. Letter, Applicant, undated. Panel Chair X