RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02296 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The Article 15 she received on 10 Apr 03 be removed from her records. ________________________________________________________________ APPLICANT CONTENDS THAT: She was accused of something that she did not do by an upset ex- girlfriend. Because of the “Don’t Ask, Don’t Tell” policy, she was unable to disclose their relationship and completely defend herself. As a result, she received an Article 15. She forfeited 50 percent of her pay for two months, the punishment was entered into her promotion and permanent records and, as a result, she was not selected for promotion to the grade of, Major. She was under the impression that the Article 15 would be removed in April 2010 but it was not removed. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 15 Mar 94. On 10 Apr 03, the applicant received an Article 15 for intent to defraud by falsely pretending to own household goods that belonged to someone else and wrongfully obtaining from the Air Force services of shipment of household goods from Murray, Utah to Upper Marlboro, Maryland, in violation of Article 134, Uniform Code of Military Justice (UCMJ). Her punishment consisted of forfeiture of $1,500 pay per month for two months ($750.00 suspended) and a reprimand. On 10 Apr 03, the applicant acknowledged receipt of the Article 15 punishment and, on the same date, elected not to appeal the punishment or submit statements on her behalf. The Article 15 was reviewed and determined to be legally sufficient on that same date. On 30 Sep 03, the applicant voluntarily separated from the Air Force under Honorable conditions and was credited with 10 years, 9 months, and 16 days of total active service. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to set aside the nonjudicial punishment, indicating the applicant has not shown a clear error or injustice. The applicant alleges an injustice that she was falsely accused and her commander punished her because of his prejudice toward her lifestyle and she was unable to disclose her homosexual relationship in any effort to defend the allegations. However, she does not allege error in how the Article 15 was processed. Nonjudicial punishment is authorized under Article 15, UCMJ and governed by the Manuel for Court-Martial (MCM) and AFI 51-202, Nonjudicial Punishment. This procedure permits commanders to dispose of certain offenses without trial by court-martial, unless the member objects. Service members are notified by their commander of the nature of the charged offenses, the supporting evidence and the commander’s intent to impose nonjudicial punishment. The member may consult with a defense counsel to determine whether to accept the nonjudicial punishment or demand trial by court-martial. Acceptance of nonjudicial punishment is not and admission of guilt, it is simply a choice of forum. It is also not, when imposed, a criminal conviction. A member accepting Article 15 proceedings may submit written matters and have a hearing with the imposing commander. The commander considers any submitted information offered by the member and must be convinced by reliable evidence the member committed the offense before imposing punishment. Members who wish to appeal the commander’s determination or the severity of the imposed punishment may appeal to the next higher commander. The appeal authority may deny the appeal, remove or modify the Article 15 if he or she disagrees in whole or in part with the action. A commander considering a case for disposition under Article 15 exercises discretion in evaluation the case, both as to whether punishment is warranted and, if so, the nature and extent of the punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal by the Board absent good cause. The applicant fails to make a compelling argument that the Board should overturn the commander’s original nonjudicial punishment decision on the basis of injustice. Except for a blanket denial, the applicant offers no evidence in her submission that she did not, in fact, commit the criminal activity of defrauding the government with which she was charged. She simply offers the proposition that she believes she was discriminated against based on her homosexuality and that she was not permitted to raise that issue in her own defense. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOR recommends denial of the applicant’s request to remove the Article 15 from her military record, addressing only the reason for the applicant’s separation. The discharge was consistent with the procedural and substantive requirements of the discharge regulation and the applicant did not submit any evidence or identify any errors or injustices that occurred in the separation process. The applicant’s approved separation was based solely on her request and had nothing to do with her receipt of an Article 15. A complete copy of the AFPC/DPSOR evaluation is at Exhibit D. AFPC/PB recommends that AFPC/DPSIPR comment on the appropriateness of having the NJP removed from her Master Personnel Record (MPR), indicating they are the OPR for MPRs. However, at the time of the applicant’s promotion board, her Officer Selection Record (OSR) contained the Article 15 punishment and the decision to file paperwork. In accordance with AFI 36-3208, Military Personnel Records System, the Article 15 remained in her OSR at the time of her separation from active duty and in conjunction with her separation from active duty, her OSR was transferred to the Air Reserve Personnel Center. A complete copy of the AFPC/PB evaluation is at Exhibit E. AFPC/DPSIRP recommends denial of the applicant’s request to remove the Article 15 from her permanent military records, indicating IAW AFI 36-2608, Chapter 8, paragraph 8.11.2.3, the Article 15 is permanently retained in the MPerRGp (Correspondence and Miscellaneous Group) unless set aside in its entirety IAW AFI 51-202, or its removal is directed by the Air Force Board for Correction of Military Records (AFBCMR). A complete copy of the AFPC/DPSIRP evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 17 Sep 12, for review and comment within 30 days (Exhibit G). As of this date, this office has received no response. ________________________________________________________________ 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took careful 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. 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 and other pertinent advisories. We are not persuaded by the evidence that the actions taken by her commander were beyond his scope of authority, inappropriate, or arbitrary and capricious. Therefore we do not find a basis to recommend granting the relief sought. ________________________________________________________________ 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-2012-02296 in Executive Session on 28 February 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-02296 was considered: Exhibit A. DD Form 149, dated 22 May 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 3 Jul 12. Exhibit D. Letter, AFPC/DPSOR, dated 13 Jul 12. Exhibit E. Letter, AFPC/PB, dated 20 Aug 12. Exhibit F. Letter, AFPC/DPSIRP, dated 30 Aug 12. Exhibit G. Letter, SAF/MRBR, dated 17 Sep 12.