RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-01307

	COUNSEL: NONE 

  	HEARING: YES

APPLICANT REQUESTS THAT:

His Article 15 dated 5 Dec 16 and all subsequent negative actions be removed from his records.  

APPLICANT CONTENDS THAT:

The Article 15 for negligent dereliction of duty should be overturned.  The definition of negligence in the Manual of Courts Martial (MCM) precludes him from being guilty.  His training did not cover weapons storage in a vehicle.  He was taught to store his weapon in the same manner as flight chiefs and superintendents.    

On 10 Aug 16, he placed his M-4 rifle in the trunk of his patrol car and got in the passenger seat of the patrol car.  The patrol car was driven by a staff sergeant (SSgt) and they were enroute to complete a funds transfer at the bank.  Upon arrival, an inspector general (IG) inspector was waiting for them at their vehicle.  He was advised that it was not acceptable to have the weapon in the trunk and was ordered to report back to their squadron leadership, which they promptly did.  The SSgt driver received a letter of reprimand (LOR) and he was offered nonjudicial punishment (NJP).  

On the advice of his area defense counsel (ADC), he initially requested trial by court-martial.  However, his ADC received notification from the wing commander that he agreed to their terms for the NJP punishment and he accepted the NJP.  

It is not in the interest of justice to hold the lowest person accountable for failures.  The Article 15 had nothing to do with evidence but was to prevent consequences from reaching people at higher levels in his squadron from having any responsibility.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a senior airman (SrA, E-4) in the Regular Air Force.  

On 22 Aug 16, the applicant demanded trial by court-martial in lieu of NJP.  The trial was scheduled for 2 Dec 16.

The applicant provides copies of his ADC’s letter to the 501st Combat Support Wing Commander (501 CSW/CC) dated 20 Sep 16 and the 523d Security Forces Squadron (423 SFS) Criminal Investigations Section, Report of Investigation which includes witness statements that patrol vehicles were missing the respective locks for the gun rack, that the issue had been brought up in flight chief meetings and a master sergeant (MSgt, E-7) had been observed doing the same.

On 2 Dec 16, the applicant agreed to accept NJP should it not include a reduction in grade, any punishment to exceed 30 days, that he would not receive an unfavorable information file (UIF) or a letter of reprimand (LOR).  

AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru SSgt), dated 5 Dec 16, shows the applicant received an Article 15 for dereliction of his duties in negligently failing to secure his loaded weapon.  Punishment included forfeiture of pay in the amount of $1,133.00.  

The applicant received a referral enlisted performance report (EPR) for the period ending 31 Jan 17 for dereliction of duty in leaving a weapon unsecured in a vehicle for which he received Article 15 punishment.

On 24 Mar 17, his commander non-recommended him for promotion to SSgt based on his referral EPR and indicated reinstatement of his SSgt promotion sequence number (PSN) was not authorized.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C, D and E.  

AIR FORCE EVALUATION:

AFPC/DP2SPP states they have no equity in the decision regarding the removal of the Article 15 or referral EPR and deferred making a recommendation.  The applicant was selected for promotion to SSgt during Cycle 16E5; however his PSN which would have incremented on 1 Apr 17 was removed due to the referral EPR which rendered him ineligible for promotion in accordance with AFI 36-2502, Enlisted Promotion/Demotion Programs.  The complete advisory is at Exhibit C.

AFLOA/JAJM recommends denial.  There is no evidence the decision to proceed with NJP or the punishment decision were beyond his commander’s authority and discretion.  While the applicant claimed he did not know of his duty, the commander reasonably concluded the applicant was derelict in the performance of his duties as a security forces patrolman and NJP was appropriate.  The complete advisory is at Exhibit D.

AFPC/DP2SPE recommends denial for removal of the referral EPR.  The applicant did not exhaust the available administrative remedy by filing an application with the Evaluation Report Appeals Board (ERAB) prior to submitting his application to the AFBCMR per AFI 36-2406, Officer and Enlisted Evaluations Programs.  The complete advisory is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 23 Mar 18 for comment (Exhibit F), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant has not exhausted all available avenues of non-judicial relief before applying to the Board for removal of his referral EPR.  

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SPP, AFLOA/JAJM and AFPC/DP2SPE and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.   Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-01307 in Executive Session on 24 Apr 18:

The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 12 Feb 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SPP, dated 10 Jan 18.
Exhibit D. Advisory opinion, AFLOA/JAJM, dated 14 Feb 18.
Exhibit E.  Advisory opinion, AFPC/DP2SPE, dated 28 Feb 18. 
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 23 Mar 18.  
 
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.