RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04697 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: The punishment imposed upon him under Article 15, Uniform Code of Military Justice (UCMJ), dated 25 September 2002 be set aside. ________________________________________________________________ _ APPLICANT CONTENDS THAT: In 2005, the Air Force Discharge Review Board upgraded his character of service from general (under honorable conditions) to honorable. However, the Article 15 he received in 2002 was reported to the FBI and has prevented him from being hired as a teacher in New Jersey. The Article 15 is being viewed by State authorities as a criminal arrest and conviction rather than nonjudicial punishment. In support of the applicant’s appeal, he provides a personal statement. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 15 December 1999. The applicant was notified by his commander of his intent to recommend that he be discharged from the Air Force under the provisions of AFPD 36-32 and AFI 36-3208. The specific reasons are as follows: a. On or about 19 July 2001, the applicant failed to report to work at the designated time and stated that he had overslept. For this misconduct the applicant received a Letter of Counseling (LOC). b. On or about 28 November 2001, the applicant failed to report on time to his assigned duty location. For this misconduct the applicant received an LOC. c. Between on or about 1 October 2001 and 28 February 2002, the applicant wrongfully possessed marijuana and on 31 July 2002 he signed an official AF Form 1168, Statement of Suspect, which he knew to be false. For this misconduct the applicant received an Article 15. d. On or about 17 October 2002, the applicant failed to report on time to his assigned duty location. For this misconduct, the applicant received a Letter of Reprimand (LOR). He was advised of his rights in this matter and elected to submit a statement on his own behalf. In a legal review of the case file, the chief military justice found the case legally sufficient and recommended discharge. The discharge authority concurred with the recommendation and directed a general discharge. The applicant was discharged on 17 January 2003. He served 3 years, 1 month and 3 days on active duty. On 6 October 2005, the Air Force Discharge Review Board (AFDRB) considered and approved the applicant’s request that his general (under honorable conditions) discharge be upgraded to honorable, to change his narrative reason for separation from drug abuse to misconduct and his reentry code changed to 3K (Exhibit B). ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. AFLOA states the applicant does not allege an error in the processing of his nonjudicial punishment. The applicant also does not allege any injustice, rather the applicant asks for his nonjudicial punishment to be taken off his record so he can become a teacher. Currently this nonjudicial punishment is listed as a “Criminal Arrest and Conviction” on his FBI Criminal History report and this prevents him from being hired as a professional educator. There is no evidence that the applicant has addressed this issue with HQ AFOSI. The applicant does not make a compelling argument that the Board should overturn the commander’s original, nonjudicial punishment decision. 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 with the limits of the commander’s authority and discretion and the applicant elected not to appeal the punishment decision. In addition, the applicant has not brought this complaint to HQ AFOSI and thus has not exhausted all of his available avenues to correct the record. The applicant has not shown a clear error or injustice The JAJM complete evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 21 December 2012, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days (Exhibit D). As of this date, no response has been received by this office. ________________________________________________________________ _ 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 notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Chief, Military Justice Division and adopt their rationale as the basis for our conclusion that the nonjudicial punishment imposed on 25 September 2012 was proper and the applicant has not been the victim of an injustice. However, we encourage the applicant to contact HQ AFOSI at 27130 Telegraph Road, RKB, Quantico, Virginia 22134 since it is this office within the Air Force that enters violations of the UCMJ into the database which feeds into the FBI Criminal History Report. Therefore, in the absence of evidence to the contrary, 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 an 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-2012-04697 in Executive Session on 23 July 2013, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 October 2012, w/atch. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 5 December 2012. Exhibit D. Letter, AFBCMR, dated 21 December 2012.