RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02375

XXX XXXXXXX	COUNSEL: XXX XXXXXXX	

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The nonjudicial punishment (NJP) imposed on 5 Sep 18, be set aside and removed from his records.

APPLICANT’S CONTENTIONS

He was found guilty of assault under Article 128, Uniform Code of Military Justice (UCMJ).  Based on the evidence and testimony of his wife he should have been found not guilty.  The evidence shows his wife made claims against him out of frustration.  According to her statement, she exaggerated when speaking to security forces and the emergency medical technician due to her emotions.  His wife’s fabricated claims lack credibility due to her emotional state the time. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force master sergeant (E-7). 

On 12 Sep 18, the applicant’s commander imposed non-judicial punishment under Article 15 for assault, in violation of Article 128, UCMJ.  His punishment consisted of a suspended reduction to the grade of technical sergeant (E-6), restriction to the base for 14 days and a reprimand.  The applicant’s appeal was denied.  

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

AIR FORCE EVALUATION

AF/JAJI recommends denying the application.  The applicant, a security forces member, and his wife consumed alcohol at a going away party.  On their way home, they were involved in a verbal altercation, which escalated when they arrived home.  The applicant stated he was in his daughter’s bed attempting to go to sleep when his wife entered the bedroom and tried to grab their daughter.  Fearful his daughter would be harmed, he asserted that he “grabbed his wife by the hair and pushed her to the ground, which allowed him to step around his wife, exit the bathroom, and then exit the master bedroom” and that he “did not slam her to the ground, the wall, or any other objects.”  He also stated that he used the minimum force necessary to protect their daughter and remove them from the situation.  The applicant stated he overheard his wife tell the on-scene patrolman that “he slammed her head against the wall.” 

The applicant contends the claims made by his wife on the night of the incident were based on her frustrations and not taking her prescribed medication.  The commander did not abuse his discretion in administering NJP and imposing punishment.  The punishment was within the permissible range for the applicant’s offense.  There was no evidence submitted to cast doubt on the legal sufficiency of the NJP.  The applicant was provided counsel and he could have demanded court-martial in lieu of NJP and presented evidence before a jury of his peers, which he opted against.  There is no basis to set aside 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 1 Dec 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 AF/JAJI and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also 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.

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-2020-02375 in Executive Session on 28 Jan 21:

, 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 24 Mar 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AF/JAI, dated 5 Nov 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 1 Dec 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.