RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04150

	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Nonjudicial Punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ) imposed on 19 Sep 17, be removed from his military records.

APPLICANT’S CONTENTIONS

His Article 15 was an injustice and he only accepted it to get out of the military.  His leadership used a civilian domestic violence charge, which he was eventually acquitted of, to punish him.

In support of his request the applicant provides a detailed memorandum from his Area Defense Counsel (ADC), who questioned the credibility of Airman W., the individual, the applicant allegedly pulled over during a traffic stop and her two close friends who apparently witnessed the events but were either unwilling or unavailable to speak with the ADC; a court order, and other documents related to his appeal.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force airman (E-2).

On 21 Jun 17, according to a court document provided by the applicant, he was charged with two counts of domestic violence.

On 22 Jun 17, according to AF Form 3070, Record of Nonjudicial Punishment Proceedings (AB thru SSgt), the applicant allegedly conducted an improper traffic stop on Airman W.

On 18 Aug 17, according to AFLOA/JAJM, the applicant’s commander offered him NJP for one specification of willful dereliction of duty in violation of Article 92, UCMJ, for failing to effect a lawful traffic stop in Jun 17.

On 23 Aug 17, according to AFLOA/JAJM, the applicant demanded trial by court-martial in lieu of NJP.

On 19 Sep 17, the applicant’s commander offered him NJP for one specification of negligent dereliction of duty, for failure to follow proper procedures when effecting a traffic stop, in violation of Article 92, UCMJ, and one specification of making a false official statement for telling a senior noncommissioned officer that he had not conducted a traffic stop on Airman W., on or about 22 Jun
17, in violation of Article 107, UCMJ.

On 26 Sep 17, the applicant demanded trial by court-martial in lieu of NJP.

On 10 Oct 17, the applicant’s commander preferred charges and recommended a special court martial and on 11 Oct 17, the special court-martial convening authority referred the charges to a special court-martial.

On 28 Dec 17, the applicant submitted a proposed pretrial agreement.

On 4 Jan 18, the applicant withdrew his demand for trial by court-martial.  He waived his right to trial by court-martial and accepted NJP.

On 4 Jan 18, the applicant’s commander approved the withdrawal of the applicant’s demand for trial by court martial and recommended the convening authority withdraw the charges previously referred to a special court-martial.

On 9 Jan 18, the convening authority concurred with the action and forwarded the charges and specification to the applicant’s commander for further disposition.

On 9 Jan 18, the applicant’s commander found that the applicant committed both of the charged offenses.  The commander administered a punishment of reduction to the grade of E-2, with a 9 Jan 18 date of rank, forfeiture of $918 pay per month for two months, and a reprimand, for failing to follow proper protocol when the applicant pulled over someone, with who he had been involved in a domestic altercation with.

On 7 Feb 18, the applicant was furnished an honorable discharge with a Narrative Reason for Separation, “completion of required active service.”  He was credited with 6 years and 3 months of active service.

On 7 Mar 18, according to a court document provided by the applicant, he was acquitted of two charges of domestic violence that allegedly occurred on 21 Jun 17.  The court further ordered the criminal records specifically related the aforementioned charges be sealed.

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

AIR FORCE EVALUATION

AFLOA/JAJM recommends denying the application indicating the record contains insufficient evidence or allegation of error or injustice tending to undermine the applicant’s NJP action or imposed punishment.  Review indicates the commander did not abuse his discretion in administering the NJP, finding the applicant committed the offenses as alleged, or imposing punishment.  The punishment imposed was within the permissible range for the applicant’s offenses.  The applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  He references an apparent civilian court acquittal, but the charges in that case were assault and harassment, not the dereliction of duty and false official statement offenses in the NJP.  He waived his opportunity to raise his Area Defense Counsel’s concerns before a court-martial when he accepted the NJP forum; moreover, he also declined to appeal the NJP determination to a higher-level commander.  Therefore, AFLOA/JAJM finds no basis to set aside the applicant’s NJP.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 21 May 20 for comment (Exhibit D), but has received no response.

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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFLOA/JAJM and finds 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 has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-04150 in Executive Session on 25 Jun 20:

Panel Chair
Panel Member
Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 4 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 20 May 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 21 May 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.