RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02798 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The Record of Nonjudicial Punishment (NJP), imposed on 16 Dec 2011, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), be set aside. ________________________________________________________________ APPLICANT CONTENDS THAT: He received an Article 15 for wrongfully grabbing a civilian co-worker around the neck. The civilian was coerced into making a statement against her will. She recanted her original statement and in Apr 2013, she provided a memorandum in support of setting aside the Article 15. In support of his request, the applicant provides copies of his AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt); electronic communiqué, memorandums, character letters, AF IMT 1168, Statement of Suspect/Witness/Complainant and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 16 December 2011, the applicant was offered nonjudicial punishment under Article 15, UCMJ. He was charged with one specification of assault consummated by a battery for grabbing a civilian around the neck with his arm, in violation of Article 128, UCMJ. The applicant consulted with defense counsel, accepted the Article 15, and waived his right to demand trial by court-martial. He elected to make a personal appearance before his commander. On 21 Dec 2011, the commander decided that the applicant committed the charged offense and imposed punishment consisting of a reduction to the grade of Airman First Class (A1C, E-3), forfeitures of $400.00 pay, and a reprimand. The applicant did not appeal his commander's decision. On 22 Dec 2011, the Article 15 action was reviewed and determined to be legally sufficient. On 7 May 2013, the applicant, through his Area Dense Counsel, submitted a request to his new commander to set aside his Article 15. The request included a memorandum from the civilian who states the entire incident was blown out of proportion. She did not support the Article 15 because she did not feel threatened by the applicant and she does not believe she was a victim of assault. On 13 May 2013 the commander did not support the set aside. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that the applicant does not make a compelling argument that the Board should overturn the commander's original, nonjudicial punishment on the basis of injustice. The commander at the time of the Article 15 had the best opportunity to evaluate the evidence for this action. In addition, while the civilian now states that she did not feel as if she was a victim, there were other witnesses to the misconduct who intervened when the incident occurred. With that perspective, the commander exercised the discretion that the applicant granted him when the applicant accepted the Article 15 and found nonjudicial punishment appropriate. The legal review process showed that the commander did not act arbitrarily or capriciously in making this decision. The Manual for Courts-Martial (MCM) and AFI 51-202, Nonjudicial Punishment; provide for certain relief from nonjudicial punishment, specifically, mitigation, remission, suspension, and set aside. A set aside of an Article 15 is the removal of the punishment from the record and the restoration of the service member's rights, privileges, pay, or property affected by the punishment. Setting aside an Article 15 action restores the member to the position held before imposition of the punishment, as if the action had never been initiated. The power to set aside a punishment should ordinarily be exercised within four months of the imposition of the nonjudicial punishment. 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 complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 5 Aug 2013, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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 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 the recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has failed to sustain his burden of proof of the existence 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 this application in Executive Session on 13 Mar 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC-2013-02798: Exhibit A. DD Form 149, dated 6 Jun 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 18 Jul 2013. Exhibit D. Letter, SAF/MRBR, dated 5 Aug 2013. 4 5