RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00684 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Nonjudicial Punishment (NJP) action she received on 13 Oct 11, under Article 15, Uniform Code of Military Justice (UCMJ) be removed from her record. 2. The referral AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt), for the period 21 Sep 10 thru 20 Sep 12 be removed from her records. 3. If items one and two are granted, her original Date of Rank (DOR) to Airman First Class (A1C) be restored with all pay and allowances. ________________________________________________________________ APPLICANT CONTENDS THAT: The Article 15 punishment she received was unjust based on a lack of supporting evidence. It was inappropriately carried out and did not follow the proper protocol. On 13 Oct 11, her commander found her guilty of failure to go even though she notified her supervisor of the unforeseen occurrence. She was found guilty of falsifying an official statement during an interrogation that did not follow protocol, had witnesses removed, and did not completely uphold her rights under Article 31 of the UCMJ. Lastly, she was found guilty of cheating on an evaluation with no substantial evidence to support the claim. The applicant outlines her personal account of the events that transpired leading up to her Article 15 punishment and vacation action. She was accused of cheating during her Geospatial Analyst (GA) evaluation. Her failure to complete the task because of a processing error should not have been perceived as cheating, but as an area that she needed more practice. The evidence should have pointed-out that she did not fully know how to perform the task. Her evaluator’s allegation was not substantiated with any evidence to support cheating or punishment for dereliction of duty under Article 92 of the UCMJ. Regarding the Article 107, UCJM violation (False Official Statement), the Article 15, dated 13 Oct 11, states that she made an official statement “My friend T. W. helped me start my car,” or words to the effect, which statement was totally false, and was then known to be so false.” This is a false charge; the phrase “My friend T.W. helped me start my car” is not what was written on her AF Form 1168, Statement of Suspect/Witness/Complainant. During the investigation she was told that she was being investigated for cheating on her evaluation which is associated with Article 92. However, in section three of the AF Form 1168, it does not list Article 92, as the suspected offense. Article 107, is listed as the advised and suspected offense. This is not proper protocol, how can a member be suspected of falsifying an official statement before it is written. She was never advised that Article 107 or Article 86 were charges against her. However, was found guilty of them when presented with her Article 15 documents from her commander. Article 31 of the UCMJ states that no person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him or her of the nature of the accusation. Article 32, states that “the accused shall be advised of the charges against them during an investigation, both of these guidelines were not followed in her case. When an individual waives his/her rights and agrees to talk, when possible obtain the waiver in writing using AF Form 1168, and have a witness present.” In her case, she was not given that opportunity. The AF Form 1168 did not list all the charges preferred against her and her Article 31 rights were violated which is reason to question the entire investigation. There should have been a senior NCO present to oversee and ensure the proper procedures were followed. Since these proceedings a new first sergeant has been placed in this position. In conclusion, she and others in the unit agree that based on her record, the circumstances surrounding the allegations, and the interrogation method used, the entire ordeal should have been handled better. An Article 15 was not the right course of action. In support of her request, the applicant provides a personal statement, copies of a memorandum for record, statements from her supervisors, character letters, documents pertaining to her NJP, and various other documents associated with her request. 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 A1C. The applicant was offered NJP, under Article 15, UCMJ. She was charged with: 1) making a false official statement, to wit: “My friend T. W. helped me star my car,” which statement was totally false and was then known to be so false, in violation of Article 107, UCMJ; 2) being derelict in the performance of her duties as she willfully failed to refrain from cheating on her Advanced Geospatial Intelligence portion of her evaluation, in violation of Article 92, UCMJ; and 3) showing up late for work, in violation of Article 86, UCMJ. The applicant was afforded the opportunity to consult with defense counsel, accepted the Article 15 and waived her right to demand trial by court- martial. She elected to present written matters and elected to make a personal appearance before her commander. On 13 Oct 11, the commander decided that the applicant had committed the charged offenses and imposed punishment consisting of a reduction to the grade of airman (E-2), suspended for six months, forfeiture of $822 pay per month for two months, suspended for six months, 30 days extra duty, and a reprimand. The applicant was informed of the punishment as well as her right to appeal. The applicant did not appeal her commander’s decision. The Article 15 action was reviewed and determined to be legally sufficient. On 1 Dec 11, the applicant’s commander provided the applicant notice of vacation proceedings and charged her with showing up late to work, in violation of Article 86, UCMJ. The applicant consulted her Area Defense Counsel, provided a written response and requested a personal appearance before her commander. On 6 Dec 11, the commander decided the applicant had committed the charged offense and imposed punishment consisting of a reduction to the grade of airman (E-2). The vacation was reviewed and determined to be legally sufficient. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C, D and E. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to remove the Article 15 from her records. The applicant has not shown a clear error or injustice. A commander considering a case for disposition under Article 15 exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extent of punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause. A set aside of punishment should not routinely be granted. Rather, set aside is to be used strictly in the rare and unusual case where a genuine question about the service member’s guilt arises or where the best interests of the Air Force would be served. The applicant makes several allegations about the unjust processing of her NJP. First, she alleges there was a lack of creditable evidence and documentation to support: 1) a history of tardiness leading to the offense of being late to work, in violation of Article 86; and 2) cheating on her evaluation. Second, she alleges that due to a failure of protocol and violation of her Article 31, UCMJ rights, it is unjust to issue NJP for a false official statement. The applicant alleges that during her interview regarding why she was late to work and cheating on her evaluation, her rights were violated. The applicant was read her rights and what she was suspected of: cheating on her evaluation and being late to work. The applicant waived her right to remain silent and answered questions on those two allegations. Part of the questioning was done verbally and part was done in written question answer format. Besides TSgt P., the person asking the questions, and herself, there were no other individuals in the room. As to the lack of credible supporting evidence, by accepting the NJP, the burden of proof standard for proving a person is guilty of an offense is much lower than the court-martial standard of proof beyond a reasonable doubt. There is no specific standard that applies to NJP; however, a commander must feel there is enough evidence to prove more likely than not the applicant committed the offenses she was charged with. In this case, the commander looked at all the evidence, to include submissions from the applicant, and found she was guilty of the offenses she was charged with. As to the violation of Article 31, UCMJ rights allegation, there was no violation. The applicant was read her rights and she chose to waive her right to remain silent and answered questions. The applicant knowingly made this decision and her rights were not violated. The allegations about no witnesses in the room or how the questioning went are not violations of Article 31, UCMJ as there is no legal requirement to have a witness present and no legal requirement as to how the question and answering take place. There are suggested ways on how to conduct an investigation, but it is only guidance. The form on which the applicant acknowledged and waived her Article 31 rights only indicates she was suspected of a false official statement; however, TSgt P. provided a memorandum for record stating she did orally tell the applicant of each allegation and there is additional evidence supporting the applicant’s guilt besides her statement. Thus even if there was a violation, there is additional evidence that supports the applicant’s guilt. The applicant does not make a compelling argument that the Board should overturn the commander’s original NJP 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 was well within the limits of the commander’s authority and discretion. The complete JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to remove her referral EPR from her records. DPSID states based on the lack of corroborating evidence provided by the applicant, and the presumed sufficiency pertaining to the issuance of the Article 15, they recommend the report not be removed from her record. The applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB) under the provisions of AFI 36- 2401, Correcting Officer and Enlisted Evaluation Reports. In accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, Paragraph 1.3.1., evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions such as Article 15’s, Letters of Reprimand, Admonishment, Counseling, or placement on the Control Roster have been taken. The applicant did provide memorandums of support from individuals outside the rating chain of the contested EPR. While those individuals are entitled to their opinion of the applicant’s duty performance and the events occurring around the time of the punishment and when the referral EPR was rendered, they were not in a better position to evaluate her duty performance than those who were specifically assigned that responsibility. Therefore, their opinions are not germane to her appeal. Furthermore, statements from the additional rater and commander/reviewer during the contested period are conspicuously absent. In order to successfully challenge the validity of an evaluation report, it is important to hear from all the evaluators—not necessarily for support, but at least for clarification/explanation. The applicant has not provided such needed documentation for full substantiation of her claims. Without the benefits of these statements, DPSID must conclude that the EPR is accurate as written. An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. 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. In the absence of information from the evaluators of the contested report, official substantiation of an error or injustice from the Inspector General (IG) or Military Equal Opportunity is appropriate, but not provided in this case. The applicant has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at the time. The complete DPSID evaluation is at Exhibit D. AFPC/DPSOE recommends denial of the applicant’s request to reinstate her rank of A1C with her original DOR. DPSOE states that based on the recommendation of JAJM to deny setting aside the applicant’s Article 15, and DPSID’s that her EPR is accurate as written and should not be voided or removed, they do not recommend relief. DPSOE states that a review of the applicant’s Military Personnel Data System (MilPDS) file reflects that she was erroneously promoted to the rank of A1C on 13 Aug 12. Based on the 20 May 12 referral report, she was ineligible for promotion in accordance with AFI 36-2502, Airman Promotion/Demotion Programs, Table 1.1, Rule 22. The Enlisted Promotions section at AFPC has contacted the applicant’s servicing Military Personnel Section (MPS) regarding this erroneous promotion and directed they correct it, as well as, notify the applicant and her commander of the error. The complete DPSOE evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 6 Sep 13, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days (Exhibit F). 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took 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 that the applicant has not been the victim of an error or injustice. 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 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 Docket Number BC-2013-00684 in Executive Session on 5 Dec 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Jan 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 21 Mar 13. Exhibit D. Letter, AFPC/DPSID, dated 21 Jun 13. Exhibit E. Letter, AFPC/DPSOE, dated 10 Jul 13. Exhibit F. Letter, SAF/MRBR, dated 6 Sep 13. 1 2