RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-01392 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His Nonjudicial Punishment (NJP) imposed under Article 15 on 5 Feb 15 and all punishments be removed. 2. His Reentry (RE) code be changed. APPLICANT CONTENDS THAT: Even after providing information that rebuts the Article 15, he was still punished. As a result he will now be discharged on the date he reaches the 16 year mark, which according to AFI 36- 2606 he would be considered a lengthy service member and per Personnel Services Delivery (PSD) [sic] Retirement Guide, his High Year of Tenure (HYT) should be established at 20 years of service. The original Article 15 document was without the reduction in grade to Staff Sergeant (SSgt). He was being treated for Post-Traumatic Stress Disorder (PTSD) since his last assignment. He does not believe he has been treated fairly because his punishment was harsher in comparison to other members of his unit for similar violations. He filed an Inspector General (IG) complaint and during their investigation the alleged incidents which happened during the temporary duty, which is still unclear, came to light. During this same period, he was recommended for Non-Commissioned Officer (NCO) of the Quarter. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 23 Jun 99, the applicant initially entered the Regular Air Force. On 1 Aug 13, the applicant was promoted to the grade of Technical Sergeant (TSgt/E-6). On 8 Jan 15, the applicant was offered NJP for one charge in violation of Article 107, UCMJ, for making a false official statement. On 14 Jan 15, after consulting with a defense counsel, the applicant accepted the NJP. The applicant provided a written presentation and made a personal appearance before his commander. On 5 Feb 15, the commander found the applicant had committed the offense and that NJP was appropriate. His punishment consisted of a reduction in grade to Staff Sergeant (SSgt/E-5) and a reprimand. On 10 Feb 15, the applicant appealed the decision and submitted additional matters for consideration. On 11 Feb 15, the imposing commander denied the appeal; and on 9 Mar 15, the appellate authority affirmed the denial. On 20 Feb 15, the applicant filed a complaint with the IG’s office alleging that he was given an Article 15 and falsely demoted but that he did not break any of the rules alleged and wanted his stripe reinstated so that he would not be forced out of the Air Force after 16 years of service due to HYT. The IG noted that after reviewing the applicant's Personnel Information File (PIF) and his Unfavorable Information File (UIF), the investigator found multiple LORs for 2 previous Driving Under the Influence (DUIs) and a recent traffic citation for Careless Driving with 2 unit members in the car including an A1C. Also, the applicant received a "3" EPR in 2014 with every section marked down. After speaking with his leadership and reviewing his records, the investigator determined the actions resulting from the last incident while the applicant was TDY and then lied to a Field Grade Officer (FGO) upon return were in line with proper progressive discipline. On or about 27 Feb 15, the applicant was contacted by the wing IG office and notified via telephone that his case analysis had been completed and closed. However, at the applicant’s request, the case was reviewed again and further interviews were conducted. On or about 23 Mar 15, he was notified the case had been reviewed again and the findings remained the same. On 24 Mar 15, the NJP was found legally sufficient by the local staff judge advocate. The applicant had previously received two Letters of Reprimand (LORs) in the months preceding the NJP. The first LOR was for dereliction of duty for failure to maintain accurate reports on vehicle inspections. The second LOR was from a civilian jurisdiction incident in which the applicant was cited for careless driving, including damaging city property and leaving the scene of an accident. The applicant contested both LORs at the time of issue, but they were ultimately sustained. On 5 Jun 15, the applicant was released from active duty with a reason for separation of reduction in force. He was credited with 15 years, 11 months, and 13 days of active service. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial to set-aside the NJP, indicating they cannot find any clear injustice, error, or good cause to reverse or otherwise change the commanders’ decisions with respect to the NJP. JAJM notes in his request to the Board, the applicant states that his punishment was the result of a command objective to remove as many members from the service as possible. However, no evidence apart from the bare allegation was provided. The applicant notes that others in the unit violated various Articles of the UCMJ and did not receive NJP. It is unclear without knowledge of the full facts and circumstances of those cases, in conjunction with a full review of those members’ personnel files, that the commander’s actions were disparate, if indeed the actions allegedly taken did occur. Administrative and NJP proceedings are protected from disclosure by the Privacy Act. However, various factors play into a commander’s disposition decision to include jurisdictional concerns, severity of misconduct, disciplinary history, duty performance, etc. Despite his assertions, there is sufficient evidence to support the finding the applicant committed the offense cited in his NJP. The applicant had the chance to present matters in writing and defend himself orally. The commander apparently weighed the evidence proving the charge against the matters submitted by the applicant, in concert with his ADC, and found that NJP action was proper. The applicant appealed the commander’s decision and submitted additional matters, but the appellate authority denied the appeal as well. The NJP was found to be legally sufficient and the punishment of reduction in grade and a reprimand was within the commander’s authority. The applicant has submitted no additional evidence to rebut the finding of guilt. A complete copy of the JAJM evaluation is at Exhibit C. AFPC/DPSOA recommends denial of the applicant’s request to change his RE code. The applicant accepted an Article 15 punishment on 14 Jan 15 and was demoted from TSgt to SSgt, effective 5 Feb 15. The demotion caused his HYT to be changed to Jun 2015 and his RE code to be changed to 4D based on being a SSgt with over 14 but less than 16 years of service. The applicant separated on 5 Jun 15 with 15 years, 11 months, and 13 days of service with an honorable character of service. He was authorized severance pay because he was not eligible to stay in the AF based on his HYT. The applicant’s RE code 4D is correct based on being in the grade of SSgt and having over 14 but fewer than 16 years of service. A complete copy of the DPSOA evaluation is at Exhibit D. AFPC/DPSOE did not provide a recommendation; however, they noted that on 8 Jan 15, the applicant received an Article 15 for making a false official statement. His punishment consisted of a reduction to the rank of SSgt with a new date of rank (DOR) of 5 Feb 15. The applicant separated in the rank of SSgt on 5 Jun 15 after serving 15 years, 11 months, and 13 days on active duty. A complete copy of the DPSOE evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation(s) were forwarded to the applicant on 28 Oct 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 opinion and recommendation 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. The Board, despite the applicant’s claim the Article 15 was unjust, and in addition to the substantial evidence provided by the applicant, did not find the evidence presented sufficient. 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-2015-01392 in Executive Session on 15 March 2016 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Apr 15, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 12 Aug 15. Exhibit D. Letter, AFPC/DPSOA, dated 8 Oct 15. Exhibit E. Letter, AFPC/DPSOE, dated 23 Oct 15. Exhibit F. Letter, SAF/MRBR, dated 28 Oct 15.