RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03139 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Article 15 she received on 14 May 08 be set aside. 2. Her Enlisted Performance Reports (EPR), rendered for the periods of 1 Jun 07 through 31 May 08 and 1 Jun 08 through 31 May 09, be declared void and removed from her military personnel records. 3. She receives supplemental promotion consideration for all relevant cycles. ________________________________________________________________ APPLICANT CONTENDS THAT: Her Article 15 should be set aside because she was later diagnosed with Grave’s disease. This condition was never taken into consideration and it significantly contributed to her behavior that led to the Article 15 and subsequent EPRs. Her supervisor and commander created a hostile work environment after her Article 15 punishment that denied her a fair opportunity to move beyond her mistakes and rehabilitate. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 25 Feb 97. On 14 May 08, the applicant received an Article 15 for disobeying a lawful order of a superior commissioned officer, three specifications of dereliction of duty, and adultery, in violation of Articles 90, 92, and 134 of the Uniform Code of Military Justice (UCMJ), respectively. As a result, her punishment consisted of reduction to the grade of Staff Sergeant (E-5), forfeiture of $2,705.40 pay per month for two months (suspended), and a reprimand. On 14 May 08, the applicant acknowledged receipt of the Article 15 punishment and, on 19 May 08, elected to appeal the punishment and submit statements on her behalf. On 19 May 08, the applicant’s commander denied her appeal and on 21 May 08, the appellate authority denied the appeal. On 22 May 08, the Article 15 was reviewed and determined to be legally sufficient. The following is a summary of her most recent EPR ratings: RATING PERIOD PROMOTION RECOMMENDATION 10 Jan 11 5 31 May 10 5 *31 May 09 3 *31 May 08 2 (referral) 31 May 07 5 * Contested Reports The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C, D, and E. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to set aside her non-judicial punishment (NJP), indicating the applicant has not shown a clear error or injustice. The applicant alleges an injustice that punishment was rendered without considering her undiagnosed medical condition, which can result in behavioral and personality problems. However, she does not allege error in how the Article 15 was processed. There is no indication that the subsequent diagnosis of Grave’s disease was a contributing factor, causing the applicant to commit adultery, engage in unprofessional relationships with mental health patients, or violate a “no contact” order. 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 her contention of her undiagnosed medical condition, the applicant offers no evidence in her submission that she did not, in fact, commit the criminal activity of adultery, engaging in unprofessional relationships, or violating a “no contact” order with which she was charged. She simply offers the proposition that she believes her medical condition contributed to her committing these offenses. 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 EPRs from her military record, indicating there is a lack of corroborating evidence provided by the applicant. The applicant has not provided compelling evidence to show that the reports were unjust or inaccurate as written. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. AFPC/DPSOE indicates that in view of the fact AFLOA/JAJM found no error or injustice requiring correction and AFPC/DPSID determined the EPRs are accurate as written, supplemental promotion consideration should not be awarded. A complete copy of the AFPC/DPSOE evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates her request to have the Article 15 set aside and her EPRs rendered for the periods of 1 Jun 07 through 31 May 08 and 1 Jun 08 through 31 May 09 be voided. In addition, she would like for her issues with her EPRs to be viewed as separate from the Article 15 issue. She alleges that her leadership during the reporting period of 1 Jun 08 through 31 May 09, demonstrated blatant bias and showed no consideration to her behavior associated with an undiagnosed medical condition during that period. She goes on to elaborate on specific circumstances surrounding the events leading up to her contested performance reports as well as her Article 15 punishment. She accepts responsibility for her actions, but believes she was continuously punished for the same incident and her undiagnosed medical condition contributed to her behavior issues in which she had no control over. She requests the board consider all the factors surrounding her Article 15 and contested EPRs as well as the second, third, and fourth degree effects these incidents have had on her especially with her EPRs for promotion testing. ________________________________________________________________ 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, including her rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its 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-2012-03139 in Executive Sessions on 2 May 2013 and 9 May 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Jul 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 15 Oct 12. Exhibit D. Letter, AFPC/DPSID, dated 11 Feb 13. Exhibit E. Letter, AFPC/DPSOE, dated 8 Mar 13. Exhibit F. Letter, SAF/MRBR, dated 31 Mar 13. Panel Chair