RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01817

XXXX XXXXXX	COUNSEL: NONE
	
 	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Non-Judicial Punishment (NJP) imposed in 2007 be removed from his officer selection record (OSR).

APPLICANT’S CONTENTIONS

The National Defense Authorization Act (NDAA) of Fiscal Year 2020 (FY20) requires the placement of a previously imposed NJP into his OSR.  The NJP was removed by the first general officer in his chain of command in 2012.  Once the NJP was removed, he was selected above the zone for promotion to major.  While the NDAA requires the NJP to be placed in his OSR, he contends this is unduly prejudicial.  The NJP is from 14 years ago and was removed by a general officer until the NDAA mandated its inclusion.  He has strived to serve honorably since receiving the NJP and has completed two successful squadron command tours.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a Regular Air Force lieutenant colonel (O-5).

On 24 Apr 07, he received NJP for violating a lawful general order, in violation of Article 92, Uniform Code of Military Justice (UCMJ), making a false official statement, in violation of Article 107, UCMJ and adultery, in violation of Article 134, UCMJ.  His punishment consisted of forfeiture of $1000 pay per month for 2 months and a reprimand.  

On 1 Feb 12, his request to remove the NJP from his OSR was approved.

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

AIR FORCE EVALUATION

DAF/JA recommends denying the application.  The applicant received NJP in Apr 07 for committing adultery and making a false official statement.  He alleges no error or injustice with the NJP, rather, he contends the new federal law requiring the placement of the NJP onto his OSR is unjust.

The applicant contends the new rule is unduly prejudicial.  He was initially passed over for promotion to major, but was selected when his request to remove the NJP from his OSR was approved.  There is no evidence the NJP was the dispositive factor in his non-selection and there is no evidence of current or future harm due to the re-placement of the NJP into his OSR.  Nevertheless, both suggestions are presumably valid.

The challenged rule is binding on the Board.  DAFI 51-202, Non-Judicial Punishment, section 4.8.1.1 states “commanders shall include the substantiated NJP in the officer selection record”.  The DAFI implements Section 502 of the NDAA FY2020, as codified by 10 USC Section 615 (a)(3).  The statute was lawfully passed by the House of Representatives and the Senate.  The transparency requirement is especially apt since the Senate must ultimately approve any prospective promotions.  There is no legal basis or authority for the Board to subvert the DAFI or federal legislation.  

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 21 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 DAF/JA 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-2021-01817 in Executive Session on 20 Jul 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 13 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 20 May 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 21 May 21.

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.