RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-01890

(b) (6), (b) (7)(C)

COUNSEL:	NONE HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
His official record be adjusted to redact his non-judicial punishment (NJP), under Article 15 of the Uniform Code of Military Justice (UCMJ), which was issued for domestic assault.

APPLICANT CONTENDS THAT:
He never hurt a woman. He realizes that domestic violence is endemic across the military and must be dealt with, which is why he believes his commander had to take some form of punishment in order to protect the command if something similar were to happen. He originally opted to proceed with court-martial proceedings, but was advised by the Area Defense Counsel (ADC) to accept the NJP instead of risking a heavier sentence. It is with great regret that he accepted the Article 15 with the promise that it would not affect his life after the military. He was misled. He submits a statement from his wife, at the time, in which she admits that her original claim was coerced and false.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:
The applicant initially entered active duty in the Regular Air Force on 18 Feb 03.

On 31 Jul 07, the applicant’s commander notified him that he intended to impose NJP for assault consummated by a battery, in violation of Article 128, UCMJ, for pushing his [ex-]wife against a wall, duct-taping her mouth and head, throwing her over a couch, and covering her face with a pillow in an attempt to suffocate her.

The applicant consulted with legal counsel and submitted written matters to his commander. After considering all matters of this case, the commander upheld the NJP and imposed punishment of a reprimand and a suspended reduction in rank from E-4 to E-2. The applicant did not appeal.

The base legal office reviewed the NJP action and determined that it was legally sufficient. The applicant also received a referral enlisted performance report (EPR) due to this misconduct.

On 28 Jun 13, the applicant was honorably discharged and credited with 10 years, 4 months, and 11 days of active service.

For more information, see the memorandum prepared by the Air Force office of primary responsibility (Exhibit C).

AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. There is no evidence or allegation of error or injustice that tends to undermine the NJP action. The applicant contends he did not commit the offense he was accused of and provides a March 2008 written statement from his [ex-]wife to that effect. This statement had been previously submitted as part of his rebuttal to the referral EPR. In that statement, the applicant’s [ex-]wife says she was coerced into making a statement implicating her husband in an assault while she was under duress due to mental health problems.

By way of background, a commander considering a case under Article 15, UCMJ, exercises discretion in evaluating the facts, determining if the accused committed an offense, and if so, what punishment is warranted. Commanders review written materials presented by the service member and statements by witnesses. Finally, they are advised by legal counsel as to the sufficiency of the evidence. There is no indication that the decision to proceed with NJP or the punishment decision in the applicant’s case were outside the limits of his commander’s authority. Those decisions were not arbitrary or capricious and should not be set aside by the Board.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:
He reiterates that he is not guilty of the infraction for which he received an Article 15 in 2007. Unfortunately, he has no new evidence to produce to bolster his case. His attempts to track down his ex-wife for additional statements have been futile; she is currently a criminal fugitive.

The fact remains that he was misled by his ADC when he was told that this would not affect him outside of the military. However, the Article 15 has factored into his termination from his last job and has effectively barred him from federal employment or any other employer with access to his military records. All this for an assault he did not commit.

The applicant’s complete submission is at Exhibit E.

THE BOARD CONCLUDES THAT:

(C
)

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.
3.	After careful consideration of all Exhibits, we are not able to recommend relief. The applicant has presented no evidence that was not already considered by command as part of the NJP or referral EPR processes. Without more, we decline to second-guess the decisions of command taken more than 10 years ago.

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 issue involved. Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS 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-2016-01890 in Executive Session on 21 Sep 17 under the provisions of AFI 36-2603:

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)		
(b) (6), (b) (7)(C)	

hair

All members voted to deny the application. The following documentary evidence pertaining to AFBCMR Docket Number BC-2016- 01890 was considered:

Exhibit A.	DD Form 149, dated 3 May 16, w/atchs. Exhibit B.	Applicant’s Master Personnel Records. Exhibit C.	Memorandum, AFLOA/JAJM, dated 24 Oct 16. Exhibit D.	Letter, AFBCMR, dated 13 Dec 16.
Exhibit E.	Letter, Applicant, dated 22 Dec 16.
Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), I certify that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings.

	
(b)
(6)		
, 			
(Abs)sociate Director, AFBCMR
(7)