RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03120 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Article 15 issued in May 01 for assault be set aside. _________________________________________________________________ APPLICANT CONTENDS THAT: His punishment for disciplining his step-son was not warranted. He spanked the child with his open hand which is legal in the state of Florida. He was young and inexperienced, so he accepted the punishment for lack of understanding. In support of his request, the applicant submits a statement from his attorney, copies of a Report of Investigation (ROI), his Enlisted Performance Reports (EPRs) and awards. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: In May 01, the applicant – then a 19-year old airman first class – was accused of excessively striking his two-year old stepson on his bare buttocks with an open hand. The applicant was attempting to discipline the child for being loud and kicking the walls. The act was witnessed by the applicant’s spouse, the mother of the child, who reported the incident to the authorities. She reported that the applicant struck the child 8- 10 times. Medical examinations of the child revealed no bruising or other signs of physical injury and all x-rays were negative for any history of child abuse. On 5 Jun 01, the applicant’s squadron commander offered him nonjudicial punishment (NJP). He was charged with assault consummated by a battery in violation of Article 128, Uniform Code of Military Justice (UCMJ). After consulting with his military defense counsel, the applicant accepted the Article 15 proceedings and waived his right to demand trial by court- martial. He presented written matters to the commander and waived his right to make a personal appearance. After considering the applicant’s written matters and weighing the evidence, the commander determined the applicant committed the alleged offenses. The resulting punishment consisted of a reduction to the rank of airman basic (suspended) and a reprimand. The applicant declined to appeal the commander’s decision. A legal review of the NJP action at two separate levels determined it was legally sufficient. The applicant is currently serving as the Noncommissioned Officer in Charge (NCOIC), Plans and Programs, in the grade of technical sergeant having assumed that grade effective and with a date of rank of 1 Oct 11. The following is a resume of his Enlisted Performance Reports (EPRs): Close-out Date Overall Rating 16 Apr 02 5 16 Apr 03 5 16 Nov 03 5 16 Nov 04 5 26 Jan 06 (Letter of Evaluation) 16 Nov 06 5 16 Nov 07 5 16 Nov 08 5 _________________________________________________________________ AIR FORCE EVALUATION: ALFOA/JAJM recommends denial. JAJM states the applicant has not alleged any error or injustice in the processing of his Article 15 action. JAJM notes the applicant was afforded all of his rights under Article 15, UCMJ and he chose to have his commander decide whether NJP would be appropriate for the offense. JAJM states his commander did not act in an arbitrary or capricious manner. At the time in question, there was no evidence to indicate the applicant’s wife was exaggerating or otherwise not credible. The applicant argues his conduct was not illegal under Florida law; however, NJP under Article 15 is governed solely by the UCMJ. JAJM notes the evidence presented to the commander supported a finding he committed assault consummated by battery as defined in the UCMJ. The applicant believes the email from his former spouse exonerates him. JAJM states this is a question of fact for the Board to resolve by weighing the veracity of the spouse’s statements at the time against her recent recantation. JAJM notes the applicant’s submission does not include any evidence to support the authenticity of the email. JAJM opines that the email is vague and it is not clear whether it was solicited by the applicant or if it is a spontaneous admission. JAJM states the decisions made at the time of the offense deserve considerable deference. JAJM opines the applicant’s commander was in the best position to decide whether an Article 15 was appropriate for the offenses. JAJM notes the applicant received a very limited punishment and did not immediately set back his career. JAJM states the applicant’s reasons for his request are unclear because his punishment did not result in any loss of time in grade or affect his promotion schedule. JAJM states the Article 15 will not affect his career unless a later disciplinary incident triggers a review of his master personnel file. JAJM states the applicant’s request is lacking two significant pieces of evidence. First, he could obtain a sworn affidavit from his ex-wife detailing the extent of her exaggerations, rather than a vague email. Second, there is nothing in his package from his current commander or anyone else in his chain of command. That is not to suggest that the applicant’s cases is without merit, but there are other means of obtaining relief, specifically that his current commander could set aside the Article 15 if he or she believes that is appropriate given the recently discovered evidence. To obtain relief through his current request to the Board, the applicant must present a stronger case or show what extraordinary circumstances constitute an injustice preventing him from exhausting other remedies. He has not met either of those standards here. The complete JAJM evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 23 Dec 10, for review and comment within 30 days (Exhibit C). On 19 Jan 11, the applicant’s counsel requested the case be administratively closed to allow time to file a response (Exhibit D). On 6 May 11, the applicant’s counsel requested the case be reopened and the process continued (Exhibit E). No additional information was submitted. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has not exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. In this respect, it appears the applicant has not exhausted all avenues available to him to obtain relief. Specifically, we note that his current commander could set aside the Article 15 if he or she believes that is appropriate given the recently discovered evidence. The applicant has not provided evidence of actions on his part to obtain the relief he seeks through the proper administrative channels. The AFBCMR process is not intended as a substitute for the proper utilization of established channels for the type of corrections he seeks. Until such time as he has exhausted all available administrative remedies, we find no basis to recommend granting the relief requested. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 22 Feb 12, under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2010-03120: Exhibit A. DD Form 149, dated 24 Apr 10, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 23 Oct 10. Exhibit C. Letter, SAF/MRBR, dated 23 Dec 10. Exhibit D. Letter, Applicant’s Counsel, dated 19 Jan 11. Exhibit E. Letter, Applicant’s Counsel, dated 6 May 11. Panel Chair