RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04437

XXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  The non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), imposed on 15 Jun 16, be set aside.

2.   The subsequent referral Enlisted Performance Report (EPR) for period 2 Feb 16 through 29 Jun 16, be expunged from his record.  

APPLICANT’S CONTENTIONS

The government did not have proof beyond a reasonable doubt that he touched a fellow airman in a manner that was objectively offensive.  At the time he received the NJP, he was told by his first sergeant not to appeal, that in due time his Article 15 would expire and his referral EPR would be “covered up.”  However, it has been three years and the adverse actions continue to negatively affect his career and limit his ability to retrain.   

In support of his appeal, the applicant provides a memorandum from his Area Defense Counsel, dated 22 Jun 16, which outlines the reasons he should have been found not guilty of the allegation.   

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

STATEMENT OF FACTS

The applicant is a Regular Air Force staff sergeant (E-5).

On 15 Jun 16, the applicant was notified of his commander’s intent to impose NJP on him pursuant to Article 15, UCMJ,  in violation of  Article 128, UCMJ.  Specifically, on or about 25 Apr 15, the applicant unlawfully touched a fellow senior airman (E-4) on the leg with his hand.  

On 22 Jun 16, the applicant waived his right to court-marital, elected to attach a written presentation and appear before his commander.   

On 29 Jun 16, the applicant’s commander finalized his decision and found that the applicant was guilty of one or more of the offenses alleged.  For these violations, the commander imposed the punishment of a reprimand; a reduction to the grade of E-4, suspended through 28 Dec 16; and a forfeiture of $1,241.  On that same date, the applicant accepted the NJP and decided not to appeal.  

On 29 Jun 16, the applicant’s commander issued him a commander directed referral EPR for the period 2 Feb 16 through 29 Jun 16.  The referred report was a result of the aforementioned Article 15. 

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 based on insufficient evidence of an error or injustice that undermines the imposed NJP.  The applicant’s commander did not abuse his discretion in administering the NJP or in finding that the applicant committed the offense as alleged.  The punishment imposed was within the permissible range for the offense and the applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the 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 3 Apr 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.  The Board notes that there is no evidence the applicant’s rights were violated or the commander, who had first-hand knowledge of the events, abused his discretionary authority.  Therefore, 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-2019-04437 in Executive Session on 28 May 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 Sept 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 18 Mar 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 3 Apr 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.