RECORD OF PROCEEDINGS
IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04361
XXXXXXXXXXXXX	COUNSEL:  NONE
HEARING REQUESTED: NO
APPLICANT’S REQUESTS
1.	His non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) imposed on 12 Mar 18, be set aside.

2.	His letters of reprimand (LOR) dated 30 Nov 17 and 14 May 18; and letter of counseling (LOC) dated 15 Nov 17 be removed.

3.	His  referral  AF  Form  910,   Enlisted  Performance  Report  (AB  thru  TSgt),  rendered    for the period 1 Apr 17 to 31 Mar 18, be declared void and removed from his record.

4.	His separation code and corresponding narrative reason for separation be changed from JKN (Misconduct [Minor Infractions]) to JKK (Secretarial Authority).
5.	His reentry code be changed from 2B1 to 3K2. (Request withdrawn).
6.	His under honorable conditions (general) discharge be upgraded to honorable.	(Request withdrawn).
APPLICANT’S CONTENTIONS
Regulations, standards and the law were not followed during the processing of the aforementioned administrative actions. These violations directly led to his unjust discharge and should be corrected. He is currently in the process of trying to enlist in the Marine Corps but it is a long and painful process because of his discharge characterization, reentry code, and narrative reason for discharge. He has tried and failed to have the commander held accountable for his actions, so instead he simply wants the Board to grant him relief so he can move on.
The applicant’s complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS
The applicant is a former Air Force airman first class (E-3). On 3 Jun 15, the applicant enlisted in the Regular Air Force.

1 Separated with a general or under other than honorable conditions discharge

2 Reserved for use by HQ AFPC or the AFBCMR when no other RE code applies or is appropriate

On 29 May 18, the applicant was notified of his commander’s intent to recommend him for discharge from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen, for Misconduct: Minor Disciplinary Infractions. The specific reasons for the discharge action were:

a.	On or about 28 Apr 16, the applicant received an LOC for losing his Air Force Form 1199C, USAF Restricted Area Badge.

b.	On or about 15 Jun 16, the applicant failed to go to his place of duty. For this misconduct, he received an LOC.

c.	On or about 24 Aug 16, the applicant failed his dorm room inspection. For this misconduct, he received an LOC.

d.	On or about 9 Sep 17, the applicant was drunk and disorderly at a club. For this misconduct, he received an LOR.

e.	On or about 13 Nov 17, the applicant failed to go to his place of duty at  the  prescribed time. For this misconduct, he received an LOC.

f.	On or about 30 Nov 17, the applicant failed to go to his place of duty at the prescribed time. For this misconduct, he received an LOR.

g.	On or about 25 Feb 18, the applicant used his Government Travel Card to make unauthorized purchases at a nightclub totaling $124.80. For this misconduct, he received an LOR.

h.	On or about 25 Feb 18, the applicant was drunk and disorderly, such conduct being of a nature to bring discredit upon the Armed Forces. For this misconduct, he received NJP under Article 15, UCMJ, reduction from the grade of E-3 to E-1, suspended through 19 Sep 18, forfeiture of $918 pay per month for two months, restriction to the limits of the base for 60 days (subsequently reduced to 45 days), and a reprimand.

On 7 May 18, the applicant’s EPR was referred to him due to the comments and ratings relative to his NJP for drunk and disorderly conduct. He acknowledged receipt and elected to submit comments.

On 7 Jun 18, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 12 Jun 18.

On 26 Jun 18, the applicant received an under honorable conditions (general) discharge, with a reentry code 2B, and a separation code and corresponding narrative reason for separation of JKN (Misconduct [Minor Infractions]). He was credited with 3 years and 24 days of active service.

On 13 Jun 19 and 17 Sep 19, the applicant appealed to the Air Force Discharge Review Board (AFDRB) for an upgrade of his general discharge to honorable and a change to his RE code. The AFDRB considered and denied the applicant’s appeals.

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

AIR FORCE EVALUATION
AFLOA/JAJM recommends against removing the NJP. The applicant contends his right to due process was violated due to his commander not granting his requested personal appearance during the NJP process. Even if the applicant’s assertion that no personal appearance occurred is true, his application did not contain sufficient evidence to warrant removing his NJP. Part V, Section 1i, of the MCM specifies that, “[f]ailure to comply with any of the procedural provisions of Part V of this Manual shall not invalidate a punishment imposed under Article 15, unless the error materially prejudiced a substantial right of the servicemember on whom the punishment was imposed.” The applicant provided no evidence of material prejudice in the alleged denial of his personal appearance or that a personal appearance would have influenced his commander to find him not guilty of the charged offense or impose a lesser punishment.
The complete advisory opinion is at Exhibit C.
AFPC/DP2SSM (Special Programs) recommends denying removal of the applicant’s letters of counseling and reprimands, indicating there is no evidence of an error or injustice. According to AFI 36-2907, Unfavorable Information File (UIF) Program, Commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands. These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission. While no specific standard of proof applies to administrative action proceedings, commanders should utilize the “preponderance of the evidence” standard when evaluating the evidence and every element of the offenses committed. There is no requirement to prove any allegation beyond a reasonable doubt.
The complete advisory opinion is at Exhibit D.
AFPC/DP3SP recommends against removal of the contested EPR. Based on the advisories from AFLOA/JAJM and AFPC/DP2SSM, there is insufficient evidence to warrant removal of the NJP and administrative actions the applicant received. Furthermore, the applicant did not file an appeal with the Evaluation Reports Appeals Board (ERAB). As such, there is insufficient evidence to warrant removal of the referral EPR as the reason for the referral still exists.
The complete advisory opinion is at Exhibit E.
AFPC/DP2SSM (Reenlistments) recommends against changing the RE code, indicating there is no evidence of an error or an injustice. The applicant was involuntarily discharged with a general discharge with a narrative reason for separation of Misconduct (Minor Infractions). The applicant’s RE code 2B is accurate based on his involuntary discharge with a general character of service.
The complete advisory opinion is at Exhibit F.
APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS
The Board sent copies of the advisory opinions to the applicant on 17 Jun 20 for comment (Exhibit G), and the applicant replied on 26 Jun 20. In his response, the applicant makes the following contentions:

1.	AFLOA/JAJM contends he initially addressed the issue of a personal appearance with the commander and first sergeant who falsely stated that a personal appearance is at the discretion of the commander which is clearly not in accordance with the Manual of Courts Martial (MCM) Part
1.	
V, section 4C(1). He was not aware of the regulation at this time as he had not been able to properly speak with legal counsel, which he declared on the AF 3070A, Record of Nonjudicial Punishment Proceedings (AB thru SSgt), but was forced by the commander to change this declaration. His official military personnel records contain numerous documents which prove that he had brought the issue of not receiving a personal appearance upon discovery of the injustice. These documents include a Set Aside request, dated 12 May 18, a rebuttal submission to a referral EPR, dated 14 May 18, as well as the response to the discharge notification dated 31 May 18. The preponderance of evidence clearly shows that no personal appearance was held before the decision of the commander was made.

The advisory further stated that a punishment shall not be invalidated unless it “materially prejudiced a substantial right of the service member.” The substantial right that was prejudiced by this improper procedure was the explicit right under Part V, section 4C (1), which states that the service member is entitled to a personal appearance before punishment may be imposed. The right to present matters, in mitigation, extenuation and/or dismissal is a fundamental part of due process in civil, legal and administrative procedures. Due process and the right to a fair trial is a substantial right for all Americans as evidenced by its inclusion in the U.S Constitution not once, but twice. Amendment V of the U.S Constitution states in part that no person shall “be deprived of life, liberty, or property, without due process of law” and Amendment XIV states, in part, that no state shall ‘deprive any person of life, liberty, or property, without due process of law.’ The decision by the commander was unconstitutional, as he was not given the due process entitled to him under these amendments. He made every effort to utilize the rights entitled to him as an American citizen and Airman but was denied, not because he waived them, but because he was prevented from utilizing any and all of them based on the commander selectively choosing which processes he would and would not follow.

2.	AFPC/DP2SSM (Special Programs) recommended the Board deny his request for removal of his letters of counseling and reprimand, but they did not address the fact that the letter of reprimand dated 14 May 18, which led to his immediate discharge, was falsified by the commander, and the evidence he provided was omitted from his official record. This is a violation of Article 107, UCMJ.

3.	AFPC/DP3SP: Regarding the recommendation not to remove his EPR, he was unaware that he had the option to go to the ERAB. Even so, the EPR should be taken out of his record because of the clear injustices previously stated.

4.	AFPC/DP2SSM (Reenlistments): This portion of his request for an discharge upgrade and change in the RE code should not be considered with this request as he has acquired legal counsel in order to address this via a personal appearance at the AFDRB.
The applicant’s complete response, with attachments, is at Exhibit H.
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 recommendations of AFLOA/JAJM and AFPC/DP2SSM (Special Programs) and finds a preponderance of the evidence does not substantiate the applicant’s contentions. The applicant claims his commander violated his right to due process by not granting his requested personal appearance during his NJP process. However,
1.	
the Board finds insufficient evidence that the applicant was denied any rights entitled to him under the Article 15 process, to include his right to demand trial by court martial, which would have required a different legal standard for his conviction. By accepting the Article 15 forum, the applicant entrusted to his commander the responsibility to decide if he had committed the alleged offense. The applicant has not provided any evidence his rights were violated during the processing of this Article 15 punishment, or the punishment exceeded the maximum authorized by the UCMJ. In cases of this nature, the Board is not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority. The Board does not find the commander abused his discretionary authority or that his action was arbitrary or capricious.

Given there is no basis to set aside the NJP action, the applicant’s request to void the contested EPR, is not favorably considered. Notwithstanding the fact AFPC/DP3SP indicates the applicant failed to file his appeal through the ERAB, the Board notes the applicant has since been discharged from the Air Force. Therefore, seeking administrative relief through the ERAB to remove the contested EPR is no longer an available option. Nevertheless, the Board is not persuaded the contested report is not a true and accurate assessment of his performance during the specified period or that the comments contained in the report are in error or contrary to the provisions of the governing instructions.

The applicant also alleges his commander falsified the LOR dated 14 May 18. Specifically, the commander changed the statement “Member did provide written matters” to “Member did provide verbal matters,” without his knowledge. However, the LOR indicates the applicant acknowledged that the commander advised him he considered the matters submitted in in response to the reprimand and informed him of the final decision regarding the same. Therefore, other than the applicant’s own assertions, the Board finds no evidence of wrong doing by his commander. Lastly, while the applicant initially requested his discharge be upgraded and his reentry code be changed, he has withdrawn these requests, in order to request a review by the AFDRB. In view of the foregoing, the Board recommends against correcting the applicant’s records.
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-2019-04361 in Executive Session on 1 Jul 20 and 21 Jul 20:

, Chair, AFBCMR 
, 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 6 Aug 19.
Exhibit B: Documentary evidence, including relevant excerpts from official records. Exhibit C: Advisory opinion, AFLOA/JAJM, dated 3 Jan 20.
Exhibit D: Advisory opinion, AFPC/DP2SSM (Special Programs), dated 9 Jan 20. Exhibit E: Advisory opinion, AFPC/DP3SP, dated 10 Feb 20.
Exhibit F: Advisory opinion, AFPC/DP2SSM (Reenlistments), dated 21 May 20. Exhibit G: Notification of advisory, SAF/MRBC to applicant, dated 17 Jun 20.
Exhibit H: Applicant’s Rebuttal, w/atchs, dated 26 Jun 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.