RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04449

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  His Letter of Reprimand (LOR) dated 21 Jun 17 be removed from his military personnel record. 

2.  His non-judicial punishment (NJP) under Article 15 and all associated documents be removed from his military personnel record. 

3.  He receive restoration to the grade of master sergeant (E-7) with his original Date of Rank (DOR).

4.  His subsequent Unfavorable Information File (UIF) and referral enlisted performance report (EPR) for period of report 1 Oct 17 thru 30 Nov 17, be declared void and expunged from his record.  

APPLICANT’S CONTENTIONS

The allegations in the LOR that he was not in a leave status when departing early from his home station to travel to his temporary duty (TDY) assignments are not an accurate representation of the events that occurred.  In this regard, he had approval from his Director of Operations (DO) to take extra travel days instead of using his leave as long as he did not claim per-diem during those travel days.  Therefore, while he was not technically in a leave status during the dates listed in the LOR, he was authorized travel during those days.  

In addition, the allegation in the LOR that he inappropriately upgraded a rental vehicle during a TDY is untrue.  Instead, he was provided a complementary upgrade, which was later inadvertently charged to his credit card.  When he discovered the error, the rental car corrected the charge and he reimbursed the government.  

Finally, the allegation in the Article 15 that he was absent without leave (AWOL) is also untrue.  He was given permission from his senior non-commissioned officer (SNCO) at his TDY location to leave the training exercise at Thomasville, AL and travel to Hurlburt Field, FL, so he could take a professional military education (PME) exam. 

In support of his appeal, the applicant provided a 12-page brief from his counsel with multiple exhibits that include; copies of various orders and unsigned travel vouchers; a receipt indicating that he refunded the government for the extra rental car charge; two letters from his JTAC instructor supporting his request; and multiple character reference letters.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a Regular Air Force technical sergeant (E-6). 

On 21 Jun 17, a LOR, provided by the applicant, was issued by his commander for not being in an authorized leave status when departing his duty station on 21-22 Oct 16, 30 Oct 16, 29 Jan 17, 22 Apr 17, and 6 May 17; failing to file a verbally approved leave request; and upgrading his rental car during a TDY from 31 Mar 17 to 24 Apr 17. 

On 2 Oct 17, the applicant was notified of his commander’s intent to impose Non-Judicial Punishment (NJP) on him pursuant to Article 15 in violation of the UCMJ, Article 86, Absence without Leave.  Specifically, on or about 21 Sep 17, without authority, absent himself from his place of duty until 22 Sep 17.  

On 5 Oct 17, the applicant waived his right to court-marital and elected to attach a written presentation.  

On 12 Oct 17, the applicant’s commander finalized his decision and found that he committed one or more of the offenses alleged and imposed the punishment of a reprimand and a reduction to the grade of technical sergeant (E-6) with new date of rank (DOR) of 12 Oct 17. 

On 17 Oct 17, the applicant submitted an appeal, which was denied by both his commander and the appellate authority.

On 4 Dec 17, the servicing staff judge advocate (SJA) found the article 15 to be legally sufficient and finalized the NJP action.  
  
On 19 Dec 17,  AF Form 910, Enlisted Performance Report, shows that the applicant was issued a commander directed referral evaluation for period of report 1 Oct 17 thru 30 Nov 17.  The report was referred due to the violations listed in the aforementioned LOR and Article 15.  

On 8 Jan 18, the applicant submitted a response to the referral report and on 16 Jan 18 his commander maintained his decision to refer the report. 

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 Article 15, nonjudicial punishment that was imposed.  A commander considering a case for disposition under Article 15, UCMJ, exercises discretion as to whether punishment is warranted and, if so, the nature and extent of the punishment.  In this case, the commander’s decisions to impose nonjudicial punishment and levy the imposed punishment were well within the limits of his authority and discretion.  Absent good cause, the Board generally should not overrule the exercise of that discretion. 

Furthermore, the applicant presents no evidence that anyone of higher rank or in a supervisory role had authorized his absence and the UCMJ states that unauthorized absence under Article 86(3) is “instantaneous.” In other words, once the applicant left the TDY location without proper authority, the offense was committed.  The complete advisory opinion is at Exhibit C.

AFPC/DP2SSM, recommends denying the applicant’s request to remove the LOR.  The commander had the authority to issue the LOR and there is no requirement for the commander to prove any allegation beyond a reasonable doubt.  The complete advisory opinion is at Exhibit D.

AFPC/DP2SSP does not provide a recommendation, as they have no equity in the decision regarding the NJP and defer to AFLOA/JAJM’s recommendation to deny the applicant’s request.  The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 4 Dec 19 for comment (Exhibit D), and the applicant replied on 6 Jan 20.  In response, the applicant’s counsel contended that the severity of the Article 15 is not congruent with the alleged violation and the accusation that the applicant was AWOL is incorrect, considering that his TDY orders authorized variations.   

In support of the response, the applicant’s counsel provides a copy of the TDY orders showing authorized variations and a letter of support from a former active duty member of the Air Force Judge Advocate General Corps who indicates that the punishment is overly harsh for the alleged misconduct.  The applicant’s complete response is at Exhibit E.

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, AFPC/DP2SSM, and AFPC/DP2SSP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes that the applicant did not provide any evidence that anyone of higher rank or in a supervisory role had approved leave for the contested dates or authorized his absence.  Therefore, there is no proof that the Letter or Reprimand (LOR) and the Non-Judicial Punishment (NJP) were unjust or inaccurate as written and should remain a matter of the record.  Furthermore, the Board finds that both the LOR and the NJP were within the commander’s authority and since the remaining requests from the applicant were predicated on the removal of the LOR and NJP, 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-2019-04449 in Executive Session on 25 Feb 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 21 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 12 Nov 19.
Exhibit D:	Advisory opinion, AFPC/DP2SSM, dated 19 Nov 19.
Exhibit E:	Advisory opinion, AFPC/DP2SSP, dated 21 Nov 19.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 4 Dec 19.
Exhibit G:	Applicant’s response, w/atchs, dated 6 Jan 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.