RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-02014

xxxxxxxxxx	COUNSEL: XXXXXXX
	
	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

Her nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), be expunged from her record.  

APPLICANT’S CONTENTIONS

She received an Article 15 for underage drinking while in technical training.  She takes full responsibility for knowingly consuming alcohol, a one-time mistake months shy of her 21st birthday, but after 10 years of serving, this Article 15 has hindered her career.  When she received the Article 15, she lost rank, paid forfeiture, and received a reprimand, which she agrees were deserved at the time; however, she was unaware of the impact the Article 15 would have on her career progression.  Since receiving NJP she has developed into a fantastic leader: Below the Zone Airman; Airman of the Year; multiple quarterly awards to include an annual award at the Major Command level; and recognized for selfless acts of service towards the mission, her team, and her unit.  However, in the past four years, she has been denied recruiter duty and has submitted three commissioning packages, which all were overlooked, simply because she has an Article 15 in her record.  She fails to understand how other airmen who are caught underage drinking off-base are able to compete for these same positions simply because the Air Force does not have jurisdiction for off-base offenses and they are held to a different standard and receive just a letter of reprimand (LOR), a more lenient administrative punishment.  She is requesting forgiveness and the opportunity to show her true potential.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force XXXXXXXXX.

On 15 Nov 12, the applicant was notified of her commander’s intent to impose NJP on her pursuant to Article 15, for one specification of Failure to obey order or regulation, in violation of Article 92, UCMJ.  Specifically, between on or about 1 Oct 12 and on or about 31 Oct 12, she was derelict in the performance of her duties in that she willfully failed to refrain from consuming alcohol while under the age of 21.

On 20 Nov 12, the applicant waived her right to court-martial, but indicated she attached a written presentation in response to the NJP.

On 26 Nov 12, the applicant’s commander finalized her decision and found the applicant had committed one or more of the offenses alleged.  For these violations the commander imposed the punishment of a reprimand, reduction to the grade of E-1, and forfeiture of $75 pay per month for two months.

On 3 Dec 12, the applicant decided not to appeal her commander’s decision to impose NJP.

On 5 Dec 12, the servicing staff judge advocate found the record to be legally sufficient.

On 13 Dec 12, the applicant’s commander suspended the reduction to the grade of E-1 portion of the NJP.

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 applicant’s request to expunge the Article 15 from her record.  The applicant’s primary allegation of an error or injustice is that “I fail to see how an Airman, if they drink underage off-base, can receive an LOR and still be able to apply for these positions due to the fact the Air Force does not have jurisdiction, while I was not given the same administrative leniency…” is mistaken.  Under the law, UCMJ jurisdiction attaches to a member based on military status, not based on location of misconduct.  She further misstates her punishment when she says that she “lost rank” as the NJP supplemental action reveals that the reduction in rank was suspended then remitted without further action.  Additionally, contrary to her assertions, there is no evidence that her career has been hindered or that her officer’s package has been denied “simply due to” her NJP history as it possible that other deficiencies exist and the NJP was merely one in the aggravate.

After careful review, they find the commander did not abuse discretion in administering the NJP, finding the applicant committed the offense alleged, or imposing punishment, and that the punishment imposed was within the permissible range for the applicant’s offense.  

Recent Congressional mandates have emphasized transparency to the public regarding misconduct, particularly in the case of officers.  As such, they find no good cause to grant clemency and conceal the applicant’s Article 15 from future officer commission selection boards.

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 20 Sep 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.  While the applicant contends airmen who commit the same offense off-base receive more lenient punishment, there is no evidence of disparate treatment as UCMJ jurisdiction is based on military status not on the location of the misconduct.  The Board notes that the applicant clearly accepted the Article 15 and elected not to demand trail by court-martial or to appeal her commander’s NJP decision.  The Board finds that the NJP action was neither arbitrary nor capricious and fell well within the commander’s authority and the evidence presented does not demonstrate an error or injustice warranting removal of the NJP or show it was unjust or inaccurate as written.  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-2022-02014 in Executive Session on 18 Nov 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 5 Aug 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 19 Sep 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 20 Sep 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.