RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04081 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Non-Judicial Punishment (NJP) under Article 15, of the Uniform Code of Military Justice (UCMJ) imposed on 13 Jun 11, and all associated documents be removed from his record. APPLICANT CONTENDS THAT: The applicant, through counsel, contends his commander ordered the removal of his Unfavorable Information File (UIF) and associated documents. Despite this clear order, the Air Force has failed to comply with AFI 36-2907, Unfavorable Information File (UIF). This statutory provision specifically encompasses “UIF and all of its documents/contents”. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 9 Jun 2001. On 25 May 11, the applicant’s commander notified him that he was considering recommending him for punishment under Article 15, Non-Judicial Punishment (NJP) for failure to obtain a referral to a civilian ophthalmologist from a military flight surgeon, failure to report a prescription for Restatis from a civilian ophthalmologist that could have affected his flying status, and giving a false official statement. On 2 Jun 11, the applicant acknowledged receipt of the action indicating he had consulted with counsel, waived his right to court-martial, attached a written presentation and requested a personal appearance. On 13 Jun 11, after considering all the facts and circumstances, the applicant’s commander determined the applicant had committed the alleged misconduct and determined that he receive NJP. On 14 Jun 11, the applicant acknowledged receipt and did not appeal the decision. The action was found to be legally sufficient. On 24 Jun 11, the Commander determined to file the Article 15 results in the applicant’s Officer Selection Record (OSR), and the applicant verbally acknowledged understanding of the notification. On 1 Aug 11, the applicant was furnished an honorable discharge, and was credited with 10 years, 1 month, and 23 days of active service. On 9 Jan 12, the applicant’s commander, directed the applicant’s Article 15 imposed on 13 Jun 11 and his UIF be removed. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice regarding the NJP process. After carefully reviewing this case, AFLOA/JAJM could not find good cause to reverse or otherwise change the commander’s decision with respect to upholding NJP. 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. The applicant had the opportunity to make his arguments on why the NJP should not stand to his commander and the appellate authority as part of the Article 15 process; however he chose not to appeal his NJP. The commander was in the best position to hear such factual arguments. Punishment decisions are within the discretion of the commander imposing punishment. A commander must place an officer’s NJP in a UIF, but NJP only stays in a UIF for a maximum of two years. However, just because an NJP is removed from a UIF, does not mean that it is removed from the member’s permanent record. In order to be removed from the permanent record, the NJP would have to be set aside. In this case, the applicant no longer has a UIF, however, because the NJP has not been set aside, it will remain in his permanent record at the Air Force Personnel Center (AFPC). A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSIM recommends denial indicating there is no evidence of an error or injustice. In accordance with AFI 36-2907, the wing commander (or equivalent), imposing or issuing authority, whichever is higher, may direct removal of derogatory data from the OSR at any time; or the officer may appeal to have the derogatory data removed after one In the Promotion Zone or Above the Promotion Zone consideration. Commanders maintain the UIF and all of its documents/contents until the final disposition date unless early removal of the document or UIF is clearly warranted. While, the 19 AF/CC requested removal of the Article 15 from the UIF and the removal of the UIF, there is no evidence that a request was submitted and completed to set-aside the Article 15 punishment. Additionally, there is no evidence that a request was submitted to the Major Command Field Operating Agency records custodian to remove the document. In order for the Article 15 punishment to be removed from the applicant’s record, a record of action from the Staff Judge Advocate showing that punishment under Article 15 was set-aside is required. A complete copy of the AFLOA/JAJM evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant refutes virtually every point made by the OPRs and argues the underlying AF Form 3070C, Record of Non-judicial Punishment Proceedings (Officer), related to the Officer Selection Record decision is incomplete. Significantly, the Government concedes there is probable cause to believe that this non-judicial punishment was placed in the member’s OSR. However, the OPR does not identify upon what evidence this probable cause conjecture is based. The applicant never received formal notice of such OSR related intent as required by law (Exhibit F). 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, to include his rebuttal comments, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. In this respect, we note the commander directed the removal of the applicant’s Article 15 from his Unfavorable Information File (UIF) and the removal of his UIF, however, this action does not constitute the removal or set-aside of the Non-Judicial Punishment (NJP) from the applicant’s permanent military personnel record. The Board notes counsel’s rebuttal contention that the applicant never received formal notice that his NJP would be filed in the Officer Selection Record (OSR). However, while the applicant may believe this is the case, the AF Form 3070C, Record of Non- judicial Punishment Proceedings (Officer), reflects the commander’s initials in block nine (9), stating “After considering all matters you have presented, I have determined this action will be filed in your Officer Selection Record.” Additionally, the applicant has not provided persuasive evidence that the NJP or UIF were rendered inaccurately or unjustly and should be set-aside. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-04081 in Executive Session on 16 Jul 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining AFBCMR Docket Number BC-2014-04081 was considered: Exhibit A. DD Form 149, dated 2 Oct 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 6 Nov 14. Exhibit D. Memorandum, AFPC/DPSIM, dated 18 Dec 14. Exhibit E. Letter, SAF/MRBR, dated 11 Feb 15. Exhibit F. Letter, Counsel, dated 21 May 15.