RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03936 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His Nonjudicial Punishment (NJP) he received on 28 Jan 12 be removed. 2. His Reentry (RE) code of 2X--(First-term, second- term or career airman considered but not selected for reenlistment under the Selective Reenlistment Program [SRP]) be changed to a reenlistment code to reflect his eligibility for reenlistment without requiring a waiver. 3. His Referral Enlisted Performance Report (EPR) rendered for the period 14 Sep 10 through 13 May 12 be removed. 4. He receive all back pay and entitlements for the remainder of the six year enlistment from his Date of Separation (DOS), 29 Sep 12. APPLICANT CONTENDS THAT: Through counsel, while on leave visiting with a friend, the Boise Police was called regarding another individual. The applicant was detained as a witness but never arrested for or charged with a crime. As a result of this incident, the applicant was subject to a NJP for consuming alcohol. There was no mention of alcohol in the police report, and, therefore, no evidence existed relating to the charge. The recommendation for reenlistment was inaccurately based upon the same incident as the NJP. The recommendation takes the false allegations from the NJP and embellishing these allegations further claiming the applicant was involved in an altercation. The Referral EPR falsely states in Section III, 2, that “Airman failed to adhere to Air Force standards; member detained for underage drinking.” However, there is no mention in the police report that the applicant was drinking, and he was only detained as a potential witness to another individual's conduct. The applicant was discharged almost four years early from his six year enlistment. He was ultimately separated for something that someone else did. He lost the ability to take care of his family. He committed to the US Air Force the full six year term. It was an absolute injustice for him to be separated based upon false information. The counsel’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 14 Sep 10, the applicant initially entered active duty in the Regular Air Force. On 19 Jan 12, the applicant was offered NJP for drinking alcohol under the age of 21, in violation of Article 92, UCMJ. On 26 Jan 12, after having consulted with counsel, the applicant accepted the NJP, submitted a written presentation and requested a meeting with his commander. On 28 Jan 12, the commander found the applicant had committed the offense. The applicant was given a suspended reduction in grade from E-3 to E-2, seven days extra duties, and a reprimand. On 3 Feb 12, the applicant elected not to appeal the decision. On 9 May 12, the applicant's commander non-selected him for reenlistment on an AF Form 418, Selective Reenlistment Program Consideration. On 10 May 12, the applicant acknowledged his non- selection for reenlistment. On 14 May 12, the applicant received a Referral EPR, closing 13 May 12, and on that same date, he acknowledged receipt of the EPR. On 15 May 12, the applicant rendered his intent to appeal the commander’s decision to non-select him for reenlistment under SRP. On 25 May 12, the applicant submitted a rebuttal indicating he was sorry for the poor judgment he made for consuming alcoholic beverages while under the legal age of 21. On 1 Jun 12, the commander denied the applicant's appeal and on 5 Jun 12, he acknowledged denial of his appeal request. On 29 Sep 12, the applicant was honorably discharged, with a reason for separation of “completion of required active service and a RE code of 2X. He was credited with 2 years and 16 days of active service. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial for removal of the NJP. JAJM indicates there is no evidence of an error or an injustice. Additionally, JAJM notes the applicant was provided due process and he was provided an opportunity to consult with counsel before accepting the NJP. After consulting with counsel, he accepted the NJP. After carefully reviewing the record, JAJM cannot find any clear injustice, error, or good cause to reverse or otherwise change the commanders’ decisions with respect to the NJP. Further, JAJM notes 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 NJP action is firmly based on the evidence of the case, to include the applicant’s statement admitting his wrong- doing and his admissions to the Boise Police that he had a couple of alcoholic beverages. 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 complete JAJM evaluation is at Exhibit C. AFPC/DPSOA recommends denial of a change to the applicant’s RE code. DPSOA notes IAW AFI 36-2606, Reenlistment in the USAF; commanders have selective reenlistment selection or non-selection authority. The SRP considers the members Enlisted Performance Report (EPR) ratings, unfavorable information from any substantiated source, the airman's willingness to comply with Air Force standards and/or the airman's ability (or lack of) to meet required training. On his AF Form 3070A, Record of Nonjudicial Punishment Proceedings, dated by his commander 28 Jan 12 and duty performance levels, it is clear applicant's commander had justification for denial of reenlistment as the applicant received NJP for consuming alcoholic beverages while under the legal age of 21 for which he apologizes for in a 25 May 12 memorandum attached to his EPR closing 13 May 12. The applicant requests an eligible RE code, however, the only RE code a member can separate with is 1J—“Eligible to reenlist, but elects separation. (All Airmen selected under the SRP and elect separation are given RE code 1J).” However, the applicant cannot be awarded a RE code 1J as his commander denied him reenlistment under the SRP, which is the opposite of being selected for reenlistment. The complete DPSOA evaluation, with attachments, is at Exhibit D. AFPC/DPSID recommend denial of voiding the contested report closing 13 May 12. DPSID notes their recommendation is based upon the aforementioned recommendation from the JAJM and the lack of corroborating evidence provided by the applicant. The applicant has failed to provide compelling evidence to show the report was unjust or inaccurate at the time it was written. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. Additionally, it is considered to represent the rating chain's best judgment at the time it is rendered. To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain-not only for support, but also for clarification/explanation. The applicant has failed to provide any information/support from any rating official on the contested EPR. It is determined that the referral report was accomplished in direct accordance with all applicable Air Force policies and procedures. We contend that 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. The applicant has not substantiated that the contested EPR was not rendered in good faith by all evaluators based on knowledge available at the time. The complete DPSID evaluation is at Exhibit E. AFPC/DPSOR did not provide a recommendation and submitted an opinion for informational purposes only. DPSOR notes the applicant was separated under the FY12 Enlisted DOS Rollback Program (Phase II) with an RE code of 2X. As a result, he was given a separation date of 29 Sep 12. On 9 May 12, the applicant’s commander completed AF IMT 418, Selective Reenlistment Program Consideration and decided not to select the applicant for reenlistment under the FY12 DOS rollback program. The applicant’s commander indicated that he had received an Article 15 and was given an Unfavorable Information File (UIF) on 19 Jan 12 for underage drinking relating to an altercation the applicant was involved in with the Boise Police Department. Based on the commander’s non recommendation for retention, the applicant was discharged from active duty and given an honorable discharge characterization of service. The discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority and they found no evidence of an error or injustice related to the processing of the applicant’s discharge. The complete DPSOR evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant’s counsel on 15 Oct 15 for review and comment within 30 days (Exhibit G). 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 the Air Force Legal Operations Agency, and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice, and relative to his contentions, is not entitled to back pay or entitlements related to the remainder of his six-year enlistment period. 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-2014-03936 in Executive Session on 19 January 2016 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03936 was considered: Exhibit A. DD Form 149, dated 22 Sep 14, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 14 Jan 15. Exhibit D. Letter, AFPC/DPSOA, dated 5 Feb 15, w/atchs. Exhibit E. Letter, AFPC/DPSID, dated 22 Sep 15. Exhibit F. Letter, AFPC/DPSOR, dated 29 Sep 15. Exhibit G. Letter, SAF/MRBR, dated 15 Oct 15.