RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00060

XXXX X. XXXX	COUNSEL: XXXX X. XXXX
	
	HEARING REQUESTED: YES  

APPLICANT’S REQUEST

Her non-judicial punishment (NJP) under Article 15 dated 9 Dec 20, be removed from her record and her rank of technical sergeant (E-6) be reinstated.

APPLICANT’S CONTENTIONS

After the commander issued the Article 15, additional evidence came to light proving that she did not commit the offense listed on the Article 15.  The individual, who made the assault complaint against her has written multiple statements acknowledging his falsification of his original statement.  Additionally, he has committed domestic violence against her, and has a history of domestic violence that includes a felony conviction.  It is believed the history of domestic violence is what motivated his initial false statement to base law enforcement.  She has worked through her first sergeant and commander to attempt to have the Article 15 set aside.  However, her current commander refused to set aside the Article 15 because it was issued by her previous commander.  Included in her application is a memorandum with a detailed account of the events and other supporting documents.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 9 Dec 20, she was notified of her commander’s intent to impose NJP on her pursuant to Article 15, for violation of Article: 128b, Domestic Violence.  Specifically, on or about 30 Nov 20, unlawfully strike a XXXX, her intimate partner, on his body with various foreign objects.

On 14 Dec 20, the applicant waived her right to court-marital, but indicated she attached a written response and requested a private personal appearance before the commander. 

On 5 Jan 21, the applicant’s commander finalized her decision and found that the applicant had committed one or more of the offenses alleged.  For these violations the commander imposed the punishment of a reprimand and a reduction to the grade of staff sergeant (E-5) with new date of rank (DOR) of 5 Jan 21. 

On 11 Jan 21, the applicant submitted an appeal in writing to her commander and the appellate authority, and on 12 Jan 21 and 14 Jan 21, respectively, her appeal was denied.

On 25 Jan 21, the servicing staff judge advocate (SJA) found the record to be legally sufficient.

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 commander found she committed misconduct by unlawfully striking XXXX on his body with various foreign objects; and the commander imposed NJP of reduction in rank to SSgt (E-5), and a reprimand.  The applicant appealed the NJP, but upon review the commander’s action was deemed legally sufficient and the appeal was denied.  At both the Article 15 hearing and in the appeal, the applicant submitted, among other things, written statements by XXXX that the applicant claims contain admissions by XXXX that he falsified his original statement to base law enforcement.  One statement is dated prior to the NJP, and one is dated after the NJP but prior to the appeal.  In the present application, she submits the same statements by XXXX. 

In regard to the alleged evidence of falsification, DAF/JA finds no new evidence tending to undermine the commander’s finding of misconduct or punishment.  The statements by XXXX do not admit falsification as the applicant claims; rather he states he did not believe the applicant was throwing items intentionally directed at him, and he did not feel he was in danger.  Furthermore, these statements were available to the commander when she made her factual determination, so this is not new evidence.  With regard to the alleged domestic assault by XXXX, the applicant has submitted no evidence to suggest this is reliable new information.  Although the application contains statements made by the applicant, and contains medical notes that convey the applicant’s statements to medical providers, these are not dispositive evidence.  Concerning the alleged history of domestic violence by XXXX, the applicant has submitted no evidence to suggest this is reliable new information.  In addition, even if true and XXXX has a history of such misconduct in other instances, this allegation does not change the NJP authority’s determination regarding the applicant’s domestic violence assault in this particular case. 

Additionally, in regard to allegations of other instances of domestic violence, in the interest of full disclosure to the Board, DAF/JA advise that the applicant has a prior history of allegedly committing domestic violence.  On 17 Mar 13, the applicant was seen outside of a home loading items into her car.  The applicant stated to the responding officers that her boyfriend, who lived in the home, made the 911 call because she had broken into the house after a dispute to get her belongings.  She admitted she threw a large rock through the bedroom window in order gain entry.  Her boyfriend alleged she had committed domestic violence, and she alleged domestic violence against her boyfriend.  The incident received an alternative disposition by the Air Force, and did not result in NJP or court-martial. 

After careful consideration, DAF/JA finds that there was no error or injustice in the NJP.  There was sufficient evidence for the commander, the NJP authority, to find misconduct.

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 2 Mar 22 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.  Furthermore, the applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  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-2022-00060 in Executive Session on 31 May 22:

, 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 7 Jan 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 28 Feb 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 2 Mar 22.

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.