RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-04645

 	COUNSEL:  	 

  	HEARING: YES

APPLICANT REQUESTS THAT:

His Nonjudicial Punishment (NJP) be removed from his records.

The forfeiture of $2,707.00 per month for two months for the NJP be restored.    

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states the NJP was based on an unfounded accusation of drunk and disorderly conduct.   The drunk and disorderly conduct was the subject of a board of inquiry (BOI) convened on 28 to 29 Jul 14 to determine if he should be retained or discharged.  The BOI found the drunk and disorderly conduct did not occur.  The findings of the BOI should be considered more persuasive than NJP action.  The BOI was a contested, fully litigated hearing with witnesses and other evidence.   He waived his right to a court-martial and accepted NJP.  The acceptance of NJP per AFI 51-202, Nonjudicial Punishment, is a choice not an admission of guilt.  The NJP was filed in his officer selection record (OSR) and unfavorable information file (UIF).  

The BCMR should give credit to the BOI findings that the applicant did not commit the offense for which he received NJP.  The BCMR needs to decide whether material error or injustice occurred in the NJP imposed given the BOI found the charge not supported by a preponderance of the evidence.   The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a captain in the Air Force.

The applicant received a referral officer performance report (OPR) for the reporting period ending 3 May 14 for drunk and disorderly conduct for which he received an Article 15.  

AF Form 3070, Record of Nonjudicial Punishment Proceedings (Officer), dated 10 Aug 14, shows he received an Article 15 for drunk and disorderly conduct on or about 17 Nov 13.  Punishment included forfeiture of $2,707.00 pay per month for two months.  The NJP was filed in his OSR.  

On 28 to 29 Jul 14, a BOI convened to make a recommendation on the applicant’s continued service.  The findings of the BOI are as follows:

a.	He was not on or about 17 Nov 13 drunk and disorderly.
b.	He was on or about 23 Dec 12 drunk and disorderly.
c.	On or about 21 Oct 11, he was asked to leave a nightclub after he became intoxicated.   He responded to the request with profanity and an obscene gesture. He did not inappropriately touch the buttocks of a female patron.  He was suspected of publicly urinating on the side of the valet counter.

The BOI found the applicant’s conduct constituted serious or recurring misconduct punishable by military or civilian authorities and recommended he be separated with an honorable discharge.  

On 24 Sep 14, the 18th Air Force Commander (18 AF/CC) concurred with the findings of the BOI that the applicant be discharged with an honorable discharge.

On 30 Oct 14, AF/JAA determined the recommendation for discharge legally sufficient.  

On 2 Dec 14, the Secretary of the Air Force terminated the involuntary separation action and retained the applicant on active duty.  

On 18 Jul 17, the applicant was notified of his nonselection for promotion to the grade of major.

The military personnel data system (MILPDS) shows the applicant’s date of separation (DOS) is 30 Nov 18.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C and D.

AIR FORCE EVALUATION:

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.  The applicant does not allege any legal error in the NJP process but asks the BCMR to set aside the NJP action based on what he contends is a more thorough analysis of the case by the discharge board panel.  The finding of the discharge board has no bearing on the integrity of the earlier NJP action.  Ultimately, the commander is entrusted to consider the evidence before him in the NJP process.  The applicant availed himself of the opportunity to be represented by counsel, present written matters and make a personal appearance before the commander.  He then appealed the commander’s decision, which the appellate authority upheld.  A legal review found no discrepancies that would merit setting aside the action.  The NJP action does not then become subject to reversal simply because a different factfinder, at a later time and based in some cases on differing evidence reaches a different conclusion.  The complete advisory is at Exhibit C.

AFPC/DP2SSM recommends granting the requested relief.  Due to sufficient evidence from the show cause authority, the NJP should be removed.  The BOI found the applicant did not on or about 17 Nov 13 violate Article 134, UCMJ for drunk and disorderly conduct.  

The finding of the BOI included that the alleged drunk and disorderly conduct in question did not occur.  The BOI found the subsequent violations not addressed within the applicant’s request did occur and recommended the applicant be discharged with an honorable service characterization.  However, on 2 Dec 14, the Secretary of the Air Force retained the applicant on active duty and terminated the involuntary separation action.  

If the Board grants the request for removal of the NJP, corrective action should also be considered to correct the applicant’s OPR with close out date 3 May 14 referencing the Article 15.  Action to remove the UIF is not needed because the final disposition date was 12 Feb 16 and the UIF was destroyed in accordance with AFI 36-2907, Unfavorable Information File (UIF).  The complete advisory is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 26 Jun 18 for comment (Exhibit E).  Counsel, on behalf of the applicant, agrees with the AFPC/DP2SSM recommendation that his application be granted and urges the BCMR to concur. AFLOA/JAJM wants the BCMR to think commanders in NJP actions are essentially free to apply any standard of proof they wish.  While no specific standard of proof applies to NJP proceedings, commanders should recognize a member is entitled to request trial by court-martial in which case proof beyond a reasonable doubt is a prerequisite for conviction.  If such proof is lacking, NJP action is usually not advisable.  The alleged violation of Article 134, UCMJ was an unfounded accusation of drunk and disorderly conduct, which was not supported by credible evidence.  Thus, it would be material error and an injustice to allow said NJP to remain in his records.  The drunk and disorderly conduct was the subject of the BOI and the BOI findings indicate the conduct in question did not occur.  The findings of the BOI should be considered more persuasive than the NJP action.  The NJP’s conclusion constitutes an error which warrants corrective active.  

The BCMR cannot deny an application merely because an issue was already decided by a commander in an NJP proceeding.  The BCMR needs to decide whether a material error or injustice occurred by the NJP imposed on the applicant for the alleged offense, particularly when a fully litigated discharge board found the charge not supported by even a preponderance of the evidence.  The NJP should be removed, along with all mention of it, including in his OSR and UIF, to include restoration of the $2,707.00 in pay per month for two months.   The complete submission is at Exhibit F.  

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

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

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is not the victim of an error or injustice.  While the Board notes AFPC/DP2SSM recommends granting the applicant’s request, to include removal of his referral OPR, based on the findings of the BOI, we disagree.   We do not dispute the BOI, which convened 8 months after the incident, found the applicant was not drunk and disorderly on 17 Nov 13.   However, we agree with AFLOA/JAJM that the decision to proceed with NJP and the punishment decision were within his commander’s authority and discretion and the applicant was afforded all of his due process rights.  Moreover, the purpose of the BOI was to make a recommendation for retention or discharge and not to bring in question the NJP action or to clear him of any past administrative actions.  We also note the applicant’s NJP includes a reprimand for his engagement in a public disruptive conduct requiring law enforcement response, which he does not dispute.   We also considered the applicant’s overall quality of service and do not find it would be in the interest of justice to recommend relief.   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-2017-04645 in Executive Session on 7 Aug 18:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted not to correct the record.  The panel considered the following in BC-2017-04645:

Exhibit A:	Application, DD Form 149, w/atchs, dated 4 Oct 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 24 Jan 18.
Exhibit D: Advisory opinion, AFPC/DP2SSM, dated 9 Jan 18.  
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 26 Jun 18.  
Exhibit F.  Counsel’s response, dated 16 Jul 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.