RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02657 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. He be reinstated into the Air Force in the pay grade of Senior Airman (SrA) effective 2 Aug 13, with immediate promotion to the grade of Staff Sergeant (SSgt) with back pay and active duty benefits. 3. His Non-judicial Punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) imposed on 28 Jun 13, and his Letter of Reprimand (LOR), dated 21 Jun 12, be declared void and removed from his records. 4. In the alternative, his DD Form 214, Certificate of Release or Discharge from Active Duty, Block 24, Character of Service be changed as noted: From “General (Under Honorable Conditions)” to “Honorable;” Separation Code “JKN” which denotes “Misconduct (Minor Infractions)” be changed to “KBK;” which denotes “Expiration of Term of Service;” His Reentry (RE) Code of “2B which denotes separated with a general or under other than honorable conditions discharge be changed to “1;” which denotes “Eligible to Reenlist but Elects Separation and; He receive back pay from 2 Aug 13 to his contractual end of obligated service date of 5 Jan 15. APPLICANT CONTENDS THAT: In a 12-page legal brief, through counsel, the applicant makes the following contentions: He received a LOR based on unreliable information for three separate incidents. He was found guilty at an Article 15 NJP hearing despite the state of North Carolina dismissing the charges and expunging the arrest from his record. He was erroneously discharged from the Air Force due to minor disciplinary infractions. In support of his requests, the applicant provides copies of his DD Form 214, AF Form 910, Enlisted Performance Report (AB thru TSgt); AF Form 3070A, Record of NJP Proceedings (AB thru TSgt); memorandums, AOC-CR-264, Petition and Order of Expunction Under G.S.15A-145(a) and G.S.15a-46, and various other documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 6 Jan 09, the applicant enlisted in the Regular Air Force. According to a letter dated 17 Jul 13, on or about 6 Jun 12 through 12 Jun 12, the applicant failed to follow team accountability instructions by not signing the unit in/out board; reported to a commander’s debrief in the wrong uniform; and missed movement for a joint training exercise. For this misconduct, he received a LOR. According to a letter dated 17 Jul 13, on or about 3 Jun 13, the applicant assaulted a police officer, who then was known by him to be a person in the execution of civilian law enforcement duties, by approaching him from behind and, with an open hand, pushing him to the ground. In addition, he was drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces. For this misconduct, he received NJP under Article 15, UCMJ, reduction in grade to airman first class, forfeiture of $1,007.00 pay per month for two months, 30 days extra duty and a reprimand. In a letter dated 11 Jul 13, the applicant was notified of his commander’s intent to recommend his discharge from the Air Force for Misconduct: Minor Disciplinary Infractions under the provision of AFI 36-3208, Administrative Separation of Airmen. Before recommending discharge, the commander noted the applicant was given multiple opportunities to correct his behavior; he had not taken the administrative actions to heart and continued to fall below the Air Force standard of acceptable behavior; therefore, he did not recommend probation and rehabilitation. The applicant acknowledged receipt of the notification of discharge. After consulting with legal counsel, the applicant elected to submit a statement in his own behalf. According to the DD Form 214, on 2 Aug 13, the applicant was discharged for Misconduct (Minor Infractions) with service characterized as general (under honorable conditions) in the grade of airman first class. He served 4 years, 6 months and 27 days of total active service. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial of the applicant’s requests to change his character of service, separation code and narrative reason for separation. Based on a review of the applicant’s master personnel records, the discharge to include the separation code, narrative reason for separation, and character of service was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. In addition, there was no evidence of any errors or injustices in the discharge processing. In accordance with AFI 36-3208, paragraph 1.18.2, a general discharge is appropriate when “significant negative aspects of the airman’s conduct or performance of duty outweighs positive aspects of the airman’s military record.” The discharge authority concluded that the applicant’s misconduct outweighed the positive aspects of his military service and directed a general discharge. The complete DPSOR evaluation is at Exhibit B. AFPC/DPSOA recommends denial of the applicant’s requests to change his RE code to 1# indicating the applicant does not provide any proof of an error or injustice in reference to his RE code 2B, but states he was unjustly discharged. RE code 2B is required based on the applicant’s involuntary discharge with a general (under honorable conditions) character of service. On 1 Aug 14, AFPC/DPSOR validated the applicant’s discharge processing and recommended denial. The applicant is specifically asking for a 1# RE code; however, per AFI 36-2606, Reenlistments in the United States Air Force, table 5.1, the only 1# RE code a Regular component member can separate with is RE code 1J, which denotes “eligible to reenlist, but elects separation;” the applicant was not eligible to reenlist and did not elect to separate but was involuntary separated which is more in line with being denied reenlistment by his commander. The complete DPSOA evaluation is at Exhibit C. AFPC/DPSOE has no equity in the decision regarding removal of the NJP and therefore, defers to AFLOA/JAJMs recommendation. However, should the Article 15 be removed, the applicant’s grade would be SrA with a date of rank of 6 Jul 11. If the applicant is returned to active duty in the grade of SrA DPSOE recommends denial of the applicant’s requests for immediate promotion to SSgt indicating he was never selected for promotion prior to discharge and Air Force policy does not allow for automatic promotion. The complete DPSOE evaluation is at Exhibit D. AFLOA/JAJM recommends denial of the applicant’s requests to void and remove his NJP. 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 applicant argues that there is not enough evidence to support a finding that he committed the offenses. His basis for the argument is that the local authorities dismissed the assault charge and never charged him with drunk and disorderly. As standards of proof and considerations for good order and discipline in the military are different from those in a civilian setting, the argument that it was dismissed in civilian court does not mean that there was not enough evidence or reason to offer NJP. The applicant had the opportunity to turn down the NJP and demand a trial by court- martial, but he accepted the NJP forum and did not appeal the commander’s findings. In addition, the punishment decision was well within the limits of the commander’s authority and discretion. The NJP action by the applicant’s leadership was fitting, appropriate, and just. The applicant was provided due process and provided an opportunity to consult with counsel before accepting the NJP. After consulting with counsel, he accepted the NJP and submitted a letter to his commander. After carefully reviewing the record, JAJM finds no clear injustice, error or good cause to reverse or otherwise change the commander’s decisions with respect to the NJP. The complete JAJM evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 30 Apr 15, for review and comment within 30 days (Exhibit F). 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 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 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 of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-02657 in Executive Session on 9 Jun 15, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-02657 was considered: Exhibit A. DD Form 149, dated 23 Jun 14, w/atchs. Exhibit B. Letter, AFPC/DPSOR, dated 1 Aug 14. Exhibit C. Letter, AFPC/DPSOA, dated 25 Sep 14. Exhibit D. Letter, AFPC/DPSOE, dated 16 Oct 14. Exhibit E. Letter, AFLOA/JAJM, dated 4 Mar 15. Exhibit F. Letter, SAF/MRBR, dated 30 Apr 15.