RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04769 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), dated 22 Jul 14, be set-aside and he be retroactively promoted to the grade of Master Sergeant (E-7). APPLICANT CONTENDS THAT: 1.  He was never given the required Article 31 warning, or even given the opportunity to explain the allegations made against him prior to being offered an Article 15. 2.  The evidence does not support the finding of guilt. The other military member with him on that evening provided an affidavit stating unequivocally that the applicant did not have sex with the Thai female in Government billet, rather upon seeing girls in his room he told them to leave. An erroneous investigation was used as the basis for the Article 15. 3.  He was never provided a copy of the actual sworn statement made by the Thai woman upon which the Officer of Special Investigation (OSI) translation was made. The woman wrote the statement in her native language. The OSI does not have the right to take evidence, interpret it in a way most beneficial to the Air Force, and then only provide the interpreted, translated version to the suspect. 4.  The Area Defense Council provided ineffective representation. It is beyond comprehension how a defense counsel could advise a client not to make a personal appearance when the client is both innocent and anxious to tell his version of the events. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant served in the Regular Air Force in the grade of Technical Sergeant (TSgt) during the period of time in question. On 10 Jul 14, the applicant’s commander notified him he was considering offering him NJP under Article 15 of the UCMJ. The reasons for taking this action were that near Udon Thani, Thailand, between on or about 20 Jan 14 and 24 Feb 14, the applicant: 1) failed to obey a lawful order by wrongfully having guests in government billeting; intentionally exposed his genitalia in front of a female civilian and a male TSgt while in government billeting; and, as a married man, wrongfully had sexual intercourse with a woman who was not his wife. The applicant consulted a lawyer, submitted a written presentation, and initially requested a personal appearance with his commander. On 22 Jul 14, the applicant’s commander determined he committed two of the three alleged offenses, deleting the allegation of exposing himself, but confirming the applicant disobeyed an order by having guests in government billeting, and committed adultery. For this, the commander reduced the applicant to the grade of Staff Sergeant (SSgt) suspended through 21 Jan 15, reduced his pay by $1547.00 for one month, and issued him a reprimand. 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 EVALUATIONS: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice concerning the NJP. NJP is authorized by Article 15, UCMJ, and permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. Service members must first be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commanders’ intentions to impose punishment. The member ay consult with a defense counsel to determine whether to accept the NJP or demand trial by court-martial. Accepting the proceedings is simply a choice of forum; it is not an admission of guilt. NJP is also not, when imposed, a criminal conviction. Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander. On 17 Jul 14, after having consulted with counsel, the applicant accepted NJP, submitted a written presentation and requested a meeting with his commander. After reviewing all of the submissions and evidence, the applicant’s commander found the applicant did commit adultery and violated a regulation. The applicant elected to appeal the decision. The appeal was denied on 29 Jul 14 by his commander and the appellate authority. The applicant argues he was not read his Article 31 rights, there is not enough evidence to support a finding of guilt, he was not given the sworn statement written in Thai, and he had ineffective assistance of counsel. However, all legal requirements and due process were met in this case, and the applicant does not make a compelling argument. There is enough evidence to support the commander’s findings, the applicant was given the witness statement in English, and his counsel’s advice does not rise to the level of ineffective assistance. The commander’s ultimate decision on the NJP action is firmly based on the evidence of the case, to include a statement by the woman he had sexual intercourse with detailing the relationship and her presence in his military billeting in Thailand. The punishment was well within the limits of the commander’s authority and discretion. The NJP action was fitting, appropriate, and just. There is no error or injustice. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice concerning the applicant’s rank. The applicant was considered and tentatively selected for promotion to Master Sergeant (MSgt/E-7) during promotion cycle 13E7, however, on 29 Apr 14, he was notified his promotion was being withheld pending completion of a Commander Directed Investigation (CDI). On 22 Jul 14, the applicant received an Article 15 for adultery. His punishment included a suspended reduction from TSgt to SSgt, and his pending promotion was removed. Based upon AFLOA/JAJM’s determination there was no error or injustice in the NJP process, recommend denying the request or reinstate his selection to MSgt. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: In further support of his request, the applicant submitted a rebuttal through council which takes exception to the AFLOA/JAJM advisory. First, he reiterates his rights were violated by the OSI on or about 13 Jun 14 when he was questioned without the protections afforded by Article 31, UCMJ. There can be no confidence in a disciplinary decision when the evidence in the case is investigated and produced by the very office that committed the Article 31 rights advisement denial. The AFLOA advisory states he was given “the witness statement in English.” There is a profound difference between being given an OSI translation of the witness’ alleged statement and being given the actual statement in Thai. He had no recourse other than to trust the OSI translation. In addition, he did, in fact, upon finding two females in his room, immediately tell them to leave and then report the female visitors to his Lt Col Team Lead first thing in the morning. His actions are clear indication he did not commit adultery with one of the females. JAJM also completely ignores the sworn affidavit from the other Air Force member who stated under oath that there was no sexual contact between the applicant and either of the two females on the night in question. Finally, his rights under Article 15, UCMJ, were also violated when within the prescribed four month time frame he made an Article 15 set aside request, and never received a response of any kind. A set aside request is a substantive right under Article 15, and his commander denied him that opportunity. This case rests solely upon an OSI translation of a disgruntled female Thai witness whose sexual advances he rebuffed, and ignores the truthful sworn statement from the other military member, who was subject to the UCMJ. 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 response to the advisory opinion, 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. The applicant’s assertions that the evidence was insufficient to support a finding of guilt and that he did not receive due process are duly noted; however, we do not find these arguments or the documentation presented sufficient to undermine the basis of the non-judicial punishment (NJP) action. In this respect, we note the contested Article 15 was found legally sufficient and it appears the applicant was provided all of the rights to which he was entitled, including the right to refuse the Article 15 and demand trial by court martial, which would have required a different standard for determining whether he committed the alleged offenses or not. By waiving his right to trial by court-martial, the applicant accepted the commander’s evaluation of the evidence and his judgment as to his guilt or innocence and punishment. Therefore, we believe the NJP action and ensuing demotion were proper and we do not find the commander’s actions to be arbitrary or capricious. 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-2014-04769 in Executive Session on 11 Aug 15, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 8 Nov 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFLOA/JAJM, dated 14 Jan 15. Exhibit D.  Memorandum, AFPC/DPSOE, dated 22 Jan 15. Exhibit E.  Letter, SAF/MRBR, dated 1 Apr 15. Exhibit F.  Letter, Applicant, dated 9 Apr 15. 12