RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02956

XXXXXXXXXXXXXX	COUNSEL:  NONE

	HEARING REQUESTED:  YES

APPLICANT’S REQUESTS

	a. He be credited with active duty service for the period 12 December 2001 to 28 April 2004.

	b. He receive retroactive pay in the grade of E-4 (senior airman) from 1 May 2001 to his 12 December 2001 date of separation.  

	c. He receive retroactive pay in the grade of E-4 for the period 12 December 2001 to 28 April 2004 [when the AFBCMR changed his RE code].

	d. He be paid $100 that was forfeited at time of his nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ). 

	e. His Article 15 be expunged from the Automated Military Justice Analysis and Management System (AMJAMS).

APPLICANT’S CONTENTIONS

In May 2001, he received nonjudicial punishment for the wrongful use of marijuana.  As punishment, he was reduced in grade from E-4 to E-3, forfeiture of $50 per month for two months, 30 days extra duty and was subsequently discharged on 12 December 2001, pursuant to the Air Force “Zero Tolerance” policy for drug use.  He later applied for relief from the Air Force Discharge Review Board (AFDRB) and the Air Force Board for Correction of Military Records (AFBCMR).  His discharge was upgraded to honorable and his separation code and reentry code were changed to allow possible reenlistment.  In 2005 he contacted the commander, Air Force Recruiting Service (AFRS) and requested an exception to policy to return to active duty, which was approved and he entered active duty in September 2005.  Following his entry, his record has been flagged numerous times due to the Article 15.  In 2007, his wife applied to be a child care provider, however, a National Crime Information Center check revealed he had an Article 15.  He presented his documents (AFDRB, AFBCMR, and AFRS) to the Air Force Office of Special Investigations, and was allowed to return to work.  In 2013, he was nominated for the Twelve Outstanding Airman of the Year (12 OAY).  However a background check revealed his Article 15 and his 12 OAY nomination was rescinded.  In 2015, while preparing for an assignment to a nuclear installation, a background check again flagged his record for the Article 15 and he was placed under investigation for fraudulent enlistment.  Following a lengthy investigation his unit commander determined the Article 15 is a clear injustice; therefore, in September 2015, his commander set aside the entire nonjudicial punishment that he received on 1 May 2001.  In accordance with the Manual for Courts-Martial and AFI 51-202, Nonjudicial Punishment, setting aside a punishment in its entirety restores the member to the position held before imposition of the punishment, as if the Article 15 action had never been initiated.  He attempted to administratively correct his record through the appropriate offices; however, he was told that he had to submit an application to the AFBCMR for relief.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is currently serving as a master sergeant (E-7) in the Regular Air Force.

On 29 May 1996, the applicant entered the Regular Air Force.

On 29 May 1999, the applicant was promoted to the rank of senior airman (E-4).

On 1 May 2001, the applicant received nonjudicial punishment for the wrongful use of a controlled substance (marijuana), in violation of Article 112a, UCMJ.  His punishment included a reduction in grade from E-4 to E-3 with a new date of rank of 1 May 2001, forfeiture of $50 per month for two months, and 30 days extra duty.

On 12 December 2001, the applicant was discharged in the grade of E-3, with a general (under honorable conditions) character of service.  His narrative reason for discharge was “Drug Abuse -Misconduct.”  He was credited with 5 years, 6 months and 14 days of active service.

On 24 October 2002, the AFDRB convened and concluded the applicant’s discharge should be upgraded as a matter of propriety.  The applicant’s characterization was changed to honorable and reason for discharge was changed to Secretarial Authority.  A new DD Form 214, Certificate of Release or Discharge from Active Duty, was created with these corrections.  A majority voted against changing the applicant’s reentry code from 2C (Involuntarily separated with an honorable discharge; or entry-level separation without characterization of service) to 3K (Secretarial Authority).  

On 28 April 2004, the applicant was notified the AFBCMR directed his records be corrected to show that at the time of his discharge on 12 December 2001, he was issued a reentry code 3K (Secretarial Authority).

On 10 May 2004, a DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, was issued correcting block 27 (Reentry Code) from 2C to 3K. 

In March 2005, the applicant submitted a memorandum to the AFRS commander requesting that he be allowed to reenlist in the Air Force. 

On 21 April 2005, the applicant was informed that due to the exceptional circumstances surrounding his discharge and change to his discharge characterization, the Air Staff would review his package for potential accession into the Air Force as an Exception to Policy.

On 15 September 2005, according to Special Order 2005-01 [Enlistment Order], the applicant enlisted in the Air Force in the grade of E-4, with a date of rank of 15 September 2005. 

On 2 September 2015, according to AF Form 3212, Record of Supplementary Action under Article 15, UCMJ, the applicant’s commander set aside the nonjudicial punishment the applicant received on 1 May 2001.  

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

APPLICABLE AUTHORITY

Manual for Courts-Martial, Part V (Nonjudicial Punishment Procedure), paragraph 6d (Setting aside).  Setting aside is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored.  The nonjudicial punishment authority who imposed punishment, the commander who imposes nonjudicial punishment, or a successor in command may set aside punishment.  The power to set aside punishments and restore rights, privileges, and property affected by the executed portion of a punishment should ordinarily be exercised only when the authority considering the case believes that, under all circumstances of the case, the punishment has resulted in clear injustice.  Also, the power to set aside an executed punishment should ordinarily be exercised only within a reasonable time after the punishment has been executed.  In this connection, 4 months is a reasonable time in the absence of unusual circumstances.  

Air Force Instruction (AFI) 51-202, Nonjudicial Punishment.  A set aside of all punishment voids the entire nonjudicial punishment actions.  A commander may not set aside punishment more than four months after execution of the punishment unless the commander determines unusual circumstances exist and explains them in an attachment to AF Form 3212.  Setting aside a punishment in its entirety restores the member to the position held before imposition of the punishment, as if the Article 15 action had never been initiated.  For example, if the member has been reduced in grade through Article 15 punishment, and the reduction is later set aside, the effective date and date of rank revert to that held before reduction.

AIR FORCE EVALUATION

AFPC/DP2LT recommends denying the applicant’s request to restore the period of service from 12 December 2001 to 28 April 2004.  The AFDRB upgraded his discharge to honorable and the AFBCMR corrected his reentry code; however, neither Board voided the discharge.  Based on the fact the applicant was discharged from the Air Force and has a break in service, active duty credit for the requested time cannot be given because the break still exists. 

The complete advisory opinion is at Exhibit C.

AFLOA/JAJM recommends deny the applicant’s request to remove the nonjudicial punishment from his record.  While applicant’s personnel record contain the set aside action, it does not contain the nonjudicial punishment the applicant seeks to have removed.  Although the applicant claims the nonjudicial punishment was noted in his records as recently as 2015 when he applied for the Personnel Reliability Program, it appears the nonjudicial punishment was removed from his records between then and now.  Therefore, there is no record to remove. 

The complete advisory opinion is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 30 May 2019, for comment (Exhibit E), and the applicant replied on 28 June 2019.  Despite AFLOA/JAJM stating his military personnel file records only contains the nonjudicial punishment set aside action, there is still a nonjudicial punishment identifier along with an AMJAMS number that still impacts his career progression.  He wants the nonjudicial punishment to be expunged from all military and legal records.  Additionally, while AFPC/DP2LT recommends not removing his break in service, he is only asking for the time back from 12 December 2001 to 28 April 2004, which is when the AFBCMR changed his  reentry code.

The applicant’s complete response, with attachments, is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION

AFLOA/JAJM recommends denying removal of the applicant’s 2001 nonjudicial punishment from AMJAMS.  Federal agencies maintain records containing personal data in accordance with applicable System of Records Notices (SORN).  In accordance with SORN F051 AFJA, which governs the maintenance of Air Force Military Justice and Magistrate Court Records, records and reports stored in computer, databases are maintained until UCMJ action is final or when no longer needed, whichever is later.  In accordance with Air Force Guidance Memorandum to AFI 51-201, the purpose of AMJAMS is to collect data pertaining to investigations, nonjudicial punishment imposed pursuant to Article 15, UCMJ, trials by court-martial, and related military justice activity.  AFLOA/JAJM is routinely queried by Air Force leadership, Department of Defense personnel, Congress, and Federal Advisory committees for raw data on military justice trends and rates.  Queries include requests for rates of conviction, acquittal, reversals, and dismissals.  Eliminating the acquittals, set asides, dismissals, and clemency actions adversely impacts the ability to provide official audiences with valid statistics.  AMJAMS provides that system for all military justice actions.  Maintaining the applicant’s nonjudicial punishment data is consistent with AFLOA/JAJM’s requirements to report statistics and study trends, it is consistent with jurisprudential practice, and it confirms a positive outcome for the applicant.  Additionally, the applicant has not shown that AMJAMS was used inappropriately in his particular case; it is not the source of his purported harm. 

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 20 December 2019, for comment (Exhibit H), and the applicant replied on 19 January 2020.  He refutes the AFLOA/JAJM advisory opinion that states “the existence of AMJAMS record of the applicant’s nonjudicial punishment and set-aside does not represent an injustice warranting Board action.”  Not expunging the nonjudicial punishment from AMJAMS directly contradicts Air Force and MCM guidance on setting aside nonjudicial punishment.  He reiterates his requested relief of restoring active duty time, back pay, and returning the $100 forfeited as part of his nonjudicial punishment.  The applicant’s complete response is at Exhibit I.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice regarding his requests for service credit, entitlement to back pay and allowances, and payment for his forfeited pay.  While the Board notes the recommendation of AFPC/DP2LT against correcting the applicant’s record to restore active duty time lost due to the separation affected by the applicant’s nonjudicial punishment, the Board finds a preponderance of the evidence substantiates the applicant’s contentions.  Specifically, in accordance with Air Force and MCM guidance, when the applicant’s commander set aside the entire nonjudicial punishment in September 2015, the applicant should have been restored to the position held before imposition of the punishment, as if the Article 15 action had never been initiated.  With regard to the applicant’s request that nonjudicial punishment data be removed from AMJAMS, the Board concurs with AFLOA/JAJM that eliminating acquittals, set asides, dismissals, and clemency actions adversely impacts the ability to provide official audiences with valid statistics.  As such, maintaining the applicant’s nonjudicial punishment data in AMJAMS is consistent with guidance on the maintenance of Air Force Military Justice and Magistrate Court Records.  Therefore, the Board finds no basis to recommend granting that portion of the applicant’s request.  In view of the foregoing, the Board recommends correcting the applicant’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show:

a. On 1 May 2001, he was not demoted from the grade of E-4 (senior airman) to E-3 (airman first class).

b. He receive retroactive pay in the grade of E-4 from 1 May 2001 through 14 September 2005.
c. He receive payment in the amount of $100 that was forfeited as a result of his nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ).

d. On 12 December 2001, he was not discharged, but on that date he continued to serve on active duty.   

e. He be provided supplemental consideration for promotion to the grade of E-5 (staff sergeant) for all appropriate cycles, beginning with cycle 00E5.

	(1) If selected for promotion to E-5 by supplemental consideration, he be provided any additional supplemental consideration required as a result of that selection.

	(2) If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application, that would have rendered the applicant ineligible for the promotion, such information will be documented and presented to the Board for a final determination on the individual’s qualifications for the promotion.

f.  Any other rights, privileges and property of which he may have been deprived as a consequence of the nonjudicial punishment imposed on 1 May 2001, under the provisions of Article 15, UCMJ, be restored, as a result of the set aside action on 2 September 2015.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant 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.  

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-2017-02956 in Executive Session on 28 May 2020:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 15 June 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2LT, dated 28 December 2018.
Exhibit D:	Advisory opinion, AFLOA/JAJM, dated 15 March 2018.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 30 May 2019.
Exhibit F:	Applicant Response, dated 28 June 2019.
Exhibit G:	Advisory opinion, AFLOA/JAJM, dated 13 December 2019. 
Exhibit H:	Notification of advisory, SAF/MRBC to applicant, dated 20 May 2019. 
Exhibit I:	Applicant Response, dated 19 January 2020.   

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings regarding Docket Number BC-2017-02956, as required by AFI 36-2603, paragraph 4.11.9.