RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012- 02078 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His 30 March 2009, non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), be set aside and removed from his records. 2. The Promotion Recommendation Form (PRF), prepared for the P0311C Captain Central Selection Board (CSB), be reaccomplished without reference to the nonjudicial punishment. 3. His corrected record be considered for on-time promotion by a Special Selection Board (SSB) for the P0311C Captain CSB. ________________________________________________________________ APPLICANT CONTENDS THAT: In a combined seven-page brief of counsel, with the applicant’s concurrence, the following contentions are made:: a. The applicant is an RC-135 Rivet Joint Navigator who began his career as an enlisted member of the Regular Air Force. As an enlisted member he was considered by his commander to be the top noncommissioned officer who was already performing the duties of a junior officer on a continuous basis. b. Following his commissioning, while at navigator training, the applicant and his wife were involved in a motor vehicle accident in the early morning hours on 25 April 2009. He rear ended a truck with his car. A witness indicated that the applicant appeared to be exiting the roadway but then veered back onto the roadway just before the accident. The airbags in the applicant’s car deployed impacting both he and his wife. Neither they nor the truck driver were injured in the collision. The responding police officers determined to arrest the applicant for driving while intoxicated (DWI). c. Upon his arrest the applicant was transported to the local hospital where two vials of his blood were drawn for testing. An alcohol analysis laboratory report, dated 29 May 2009, purported to reflect the result of the testing on one or both vials of blood indicated blood alcohol content (BAC) of 0.19 grams of alcohol per 100 milliliters of blood. d. On 9 June 2009, the alleged DWI case against the applicant was dismissed by the assistant criminal district attorney. The assistant criminal district attorney declined to prosecute the DWI intoxicated offense against the applicant because of insufficient evidence. e. Notwithstanding the assistant criminal district attorney’s decision that there was insufficient evidence to prosecute the case, the applicant’s command initiated nonjudicial punishment proceedings against him. On 24 June 2009, the wing commander formally notified the applicant that she was considering whether she should recommend to the numbered Air Force (AF) commander that he be punished under Article 15, UCMJ for violation of Article 111, Drunken or reckless operation of vehicle, aircraft or vessel. f. Notably the specification alleged the applicant controlled a vehicle while the alcohol concentration in his blood was, as shown by chemical analysis, equal to or exceeding .08 grams of alcohol per 100 milliliters of blood, which was the limit under the Texas Penal Code, section 49-04. The applicant consulted a lawyer, accepted the nonjudicial punishment proceedings, provided a written presentation and requested a non-public personal appearance. The numbered AF commander determined that the applicant had violated Article 111 as charged and forfeitures and a reprimand were imposed. The applicant appealed the decision against him but the appellate authority denied the appeal. The record of the nonjudicial punishment proceedings was placed in the applicant’s Officer Selection Record (OSR). g. The applicant was considered for promotion to the grade of captain during the “C” cycle in 2011, while in the promotion zone (Board PO311C). Prior to the board his senior rater gave him a “Do Not Promote This Board” overall recommendation as a direct result of the nonjudicial punishment actions. h. The applicant made mistakes on the evening in question but he did not violate the UCMJ by driving while intoxicated. He was neither impaired nor drunken, but most importantly, there is no reliable chemical analysis to establish that his BAC was over the required limit. The applicant’s clearly demonstrated potential to make continued significant contributions to the Air Force depends on the Board’s sense of justice and fairness. They urge that the error and injustice be recognized and the record be corrected as requested. In support of his request, the applicant provides his counsel’s brief with attachments. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of First Lieutenant, O-2. On 24 January 2009, the applicant’s commander offered him nonjudicial punishment proceedings (NJP) under Article 15 UCMJ for one specification of a violation of Article 111. The applicant accepted the NJP and waived his right to trial by court-martial. On 2 July 2009, the commander determined the applicant did commit the offense and imposed the Article 15. The applicant’s imposed punishment was a reprimand and forfeiture of $1,500.00 per month for two months. The applicant appealed the commander’s decision. The appeal was denied and the Article 15 proceedings were reviewed and determined to be legally sufficient. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant alleges injustice in that the evidence was insufficient to meet the legal standard of proof of beyond a reasonable doubt. He argues that the proper forensic protocol was not followed in the taking of his blood sample and, the results of that blood test are, therefore, unreliable. There is, however, no scientific evidence to support the proposition that an alcohol swab, used to clean an injection site prior to a blood draw, can impact the results of a blood alcohol test with any degree of significance. Additionally, the applicant does not allege error in how the Article 15 was processed. A review of the AF Form 3070C, Record of Nonjudicial Punishment (Officer), indicates that 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 in this case. The applicant raised this same argument in his defense of the Article 15 with his commander, and with the commander’s superior on appeal. With that perspective, the commander exercised the discretion that the applicant granted her when he accepted the Article 15 and found nonjudicial punishment appropriate. Moreover, the commander’s decision was scrutinized by the applicant’s exercise of his right to appeal. The legal review process showed that the commander did not act arbitrarily or capriciously in making her decision. The evidence that the commander based her decision on included the fact the applicant admits, and at least two additional witnesses all report, that he had consumed several alcoholic drinks before driving his vehicle. An eyewitness to the accident observed that the applicant was driving in a reckless manner and at a high rate of speed. The police officer who responded to the accident smelled the odor of alcohol on the applicant’s breath and the blood test, while not conducted by a laboratory technician qualified by the county, was conducted by a phlebotomist who, by all other indications, was professionally capable of taking a sample of the blood, revealed more than twice the legal limit of alcohol in the applicant’s blood stream. The mere fact the applicant argues an alcohol swab may have been used to clean the injection site prior to the taking of the blood, does not account for the excessive amount of alcohol detected in his system. Nor does it negate the other factors of impairment that were observed by witnesses and the arresting officer. Neither is it persuasive that the state of Texas elected not to prosecute the case against the applicant. There are a number of reasons why one jurisdiction might defer prosecution in any given case and a commander’s prerogative, to offer nonjudicial punishment in the maintenance of good order and discipline within the ranks of those under his command, is not subject to the discretion exercised by a current jurisdiction. The applicant does not make a compelling argument that the Board should overturn the commander’s original, nonjudicial punishment decision on the basis of injustice. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and the punishment decision was well within the limits of the commander’s authority and discretion. The applicant has not shown a clear error or injustice. The complete AFLOA/JAJM evaluation is at Exhibit B. AFPC/DPSID recommends denial. DPSID states based on a lack of corroborating evidence and documentation, and legal sufficiency pertaining to the issuance of Article 15 punishment, they recommend that the PRF not be substituted within the applicant’s permanent evaluation record. The applicant received a “Do Not Promote” PRF in conjunction with being found guilty of violating Article 111 of the UCMJ; specifically for physically controlling a vehicle with a blood alcohol level at or exceeding the legal limit. In accordance with (IAW) AFI 36-2406, Officer and Enlisted Evaluations Systems, paragraph 1.3.1., evaluators are strongly encouraged to comment in performance reports (and an officer’s next PRF) on misconduct that reflects a disregard of the law, whether civil or the UCMJ, or when adverse actions such as Article 15, Letters of Reprimand, Admonishment or Counseling, or placement on the Control roster have been taken.” In this case the senior rater did choose to comment on the contested PRF and elected to mark the PRF with “Do Not Promote this Board.” The applicant in his appeal seeks for this PRF to be substituted with a newly accomplished PRF which does not contain any reference to the Article 15 action or underlying arrest. However, the senior rater, as the author of the PRF has the sole discretion in deciding what accomplishments to include or not include in the document. IAW AFI 36-2401, Correcting Officer an Enlisted Evaluation Reports, changing any content present in section IV of the PRF requires not only a re-accomplished PRF, but also the written justification of the senior rater who completed the original PRF. The applicant, in this appeal, has provided none of these documents and only states in his request that he wishes a new PRF be accomplished. Without such critical documents, no basis is formed by the applicant to warrant consideration to substitute the contested PRF. The Article 15 action has not been set aside nor did the action of the applicant not exist. Therefore, their contention is that the comments referencing this fact on the contested PRF are fair, accurate and IAW AFI 36-2406 instructional guidance. An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. They contend that once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The burden of proof is on the applicant. He has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at the time. The applicant has not provided any compelling evidence to show the PRF is unjust or inaccurate as written. The complete AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOO recommends denial. DPSOO states based on AFLOA/JAJM’s and AFPC/DPSID’s denials to set aside and remove the Article 15 and substitute the PO311C PRF, they recommend the Board deny the applicant’s request for SSB consideration. The complete AFPC/DPSOO evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In their response, counsel and applicant indicate their objections to the JAJM and DPSID analysis and comments. They expand on their contention that it is not that the evidence was “insufficient” to prove that there was alcohol in the applicant’s blood stream, but that there was not reliable evidence to prove a prohibited level of alcohol concentration in his blood stream. They refer again to the specification which explicitly refers to an alcohol concentration in the applicant’s blood as shown by chemical analysis. Clearly evidence of consumption of some alcohol (whether by admission or witness observation) does not constitute chemical analysis or proof of any specific level of alcohol concentration as is required. It is also a flawed circular logic to rely upon the tests themselves to argue that those very results are reliable. They further contend that this is a case where a still promising officer made some mistakes by driving when he was exhausted, and getting into an accident. Though he had consumed alcohol earlier in the evening, the evidence shows that he had stopped drinking hours before he attempted to drive home, and that he did not display any discernable signs of intoxication or drunkenness. Because he got into an accident by falling asleep at the wheel, he had blood drawn for testing, voluntarily, and unfortunately, the entire process of the collection and testing of that blood was wholly unreliable for legal purposes. A prosecutor rejected it, as did a judge; nevertheless, the applicant was punished under Article 15. They request the Board correct the resulting error and injustice. The applicant’s complete response, with attachment, is at Exhibit F. ________________________________________________________________ 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 error or injustice. The applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the Air Force Legal Operations Agency. We are not persuaded by the evidence that the actions taken by his commander were beyond her scope of authority, inappropriate, or arbitrary and capricious. Further, while the applicant’s counsel contends the evidence was insufficient to meet the legal standard of proof of beyond a reasonable doubt, there is no such requirement in the NJP forum as there is during trial by court-martial. The applicant was provided an opportunity to request such a forum, with its higher standard of evidence but, after consulting with legal counsel, instead chose to accept the NJP Therefore we do not find a basis to recommend setting aside the Article 15 and removing it from his records. In view of this determination, there exist no bases upon which to recommend favorable consideration of the remainder of his requests. 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 that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 this application in Executive Session on 23 January 2013, under the provisions of AFI 36-2603: The following documentary evidence was considered in AFBCMR Docket Number BC-2012- 02078: Exhibit A. DD Form 149, dated 4 May 2012, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 25 June 2012. Exhibit C. Letter, AFPC/DPSID, dated 6 August 2012. Exhibit D. Letter, AFPC/DPSOO, dated 30 August 2012. Exhibit E. Letter, SAF/MRBR, dated 11 September 2012. Exhibit F. Letter, Counsel, dated 3 October 2012, w/atchs. Panel Chair , Panel Chair , Member , Member