ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2018-00943-2

XXXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  The Board reconsider his request to set aside the non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) that he received on 7 Feb 17.

2.  His referral enlisted performance report (EPR) for period of report 1 Feb 16 thru 31 Jan 17 be removed from his record.

RESUME OF THE CASE

The applicant is currently serving in the Regular Air Force in the grade of staff sergeant (E-5).

On 18 Sep 19, the Board considered and denied his request to set aside the Article 15 he received on 7 Feb 17 for filing a false police report.  The Board found that the applicant had provided insufficient evidence of an error or injustice to justify relief.   In addition, the Board noted five separate IG case files concluded that any reprisal allegation by the applicant was not substantiated by the Department of Defense (DoD) and dismissed.   They further found that the two IG misconduct actions that were substantiated did not have influence on the Article 15. 

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F.

On 24 Mar 20, the applicant’s counsel requested reconsideration of his request and contends that the Board appeared to confuse the meaning of the SAF/IGQ findings and that those findings don’t change the fact that there is overwhelming evidence that demonstrates that the applicant was innocent of the alleged misconduct. The applicant’s counsel has submitted new evidence in the form of a polygraph test which will show that the applicant was not deceptive to law enforcement, but instead provided a truthful statement that he was assaulted.

As a final issue, the applicant’s counsel also states that the Board refused to address the underlying EPR on the premise that he must first exhaust his request with the Evaluation Report Appeals Board (ERAB).  However, in accordance with AFI 36-2406, para. 10.2.4.10.2.3, states “For the ERAB to decide favorably to void the evaluation, the applicant must prove by a preponderance of the evidence that the behavior did not take place and the corrected action taken was officially set aside.” As such, the applicant is in a position where he cannot seek relief until the Board first removes the Article 15; therefore, the applicant’s counsel requests that they also grant relief in the form of the removal of the EPR.   

In support of the appeal, the applicant’s counsel provides a “Computerized Polygraph Examination” report dated 19 Jan 20, a declaration statement from the applicant, and the applicant’s most recent EPR for period of report 1 Feb 19 thru 31 Jan 20.  

The applicant’s complete submission is at Exhibit G.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board concludes the applicant has presented evidence sufficient to demonstrate an error or injustice.  In particular, the applicant has provided a “Computerized Polygraph Examination” report, dated 19 Jan 20, which shows that he was not deceptive to law enforcement, but instead provided a truthful statement that he was assaulted.  The Board also notes that in the applicant’s original application he provided evidence in the form of video surveillance footage, which contradicted and brought into question the validity of the police report.  Given that the Article 15 was rendered on the applicant for filing a false police report and the fact that the polygraph test indicates that the report he filed was in fact true; the Board finds the preponderance of the evidence sufficient to justify changing the original findings and recommendation of the Board.  In addition, since the primary bases for the referral enlisted performance report (EPR) for period of report 1 Feb 16 thru 31 Jan 17 was based on the contested Article 15, the Board finds the evidence sufficient to remove the evaluation from his records.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

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 the APPLICANT be corrected to show that:

a.  The non-judicial punishment (NJP) imposed on 7 February 2017, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) be removed from his records, and all rights, privileges and property of which he may have been deprived be restored.

b.  His referral enlisted performance report (EPR) for period of report 1 February 2016 thru 31 January 2017 be declared void and removed from his record.

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-2018-00943-2 in Executive Session on 06 Oct 20:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 4 Dec 19.
Exhibit G:	Application, DD Form 149, w/atchs, dated 24 Mar 20.

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