RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00707 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her Article 15, nonjudicial punishment (NJP), and all actions associated with the punishment be removed; she be reinstated to active duty with her original date of rank; and her reentry (RE) code be changed to one that would allow her to return to military service. _________________________________________________________________ APPLICANT CONTENDS THAT: Her involuntary separation was due in part to the Article 15 she received for falling asleep on post while she was deployed. She had ongoing medical issues (Bronchitis and Pneumonia) for which she was prescribed medication that caused drowsiness, along with the fact she was on prescribed depression medication which intensified the drowsiness. Her supervisors knew she was ill and on medication and she feels this was not taken into account. She should not have accepted the Article 15, but she was ill and just wanted to return home. Had she known she was going to be separated, she would not have accepted the Article 15 and would have requested a trial by court-martial. At the time, she could not have an Area Defense Council (ADC) in person; therefore, all communications had to be by e-mail or over the phone with an ADC at Spangdahlem Air Base, Germany. Her commander did not serve her the Article 15 as he was on leave; therefore, the Officer-In-Charge for Force Protection gave it to her. She served honorably with no military blemishes on her record until she received the Article 15. In September 2006, her supervisor had recommended her for reenlistment under the Selective Reenlistment Program (SRP). In support of her appeal, the applicant provides copies of her DD Form 214, Certificate of Release or Discharge from Active Duty; NJP action; written presentation to NJP action; electronic communications with ADC; selection for reenlistment; a letter of appreciation; three character references; and medical records. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who was trained as an Aerospace Propulsion Journeyman and was progressively promoted to the grade of senior airman (E-4). In late 2006, she was deployed to Ali Al Salem Air Base in Kuwait to fill a Third Country National escort position. On 5 January 2007, while on post as a sentinel at a construction site, the applicant was found sleeping. On 16 January 2007, she was offered NJP for sleeping on post in violation of Article 113, Uniform Code of Military Justice (UCMJ). On 17 January 2007, after consulting with counsel, she waived her right to demand trial by court-martial, accepted NJP, and submitted a written presentation. The applicant’s commander determined she committed the alleged offense and imposed a punishment consisting of a reduction in grade to airman first class (E-3) with a new date of rank of 17 January 2007, a suspended forfeiture of $403.00 pay, and a reprimand. The applicant elected not to appeal her commander’s decision and two legal reviews of the Article 15 action determined it was legally sufficient. On 15 July 2007, the applicant was notified that her Enlisted Performance Report (EPR) for the period 15 July 2006 through 14 July 2007 was being referred. She acknowledged receipt of the notification and chose not to provide comments regarding the referral EPR. The following is a resume of the applicant’s EPR profile: PERIOD ENDING PROMOTION RECOMMENDATION 14 Jul 03 (A1C) 4 14 Jul 04 (SrA) 4 14 Jul 05 5 14 Jul 06 5 14 Jul 07* (A1C) 3 * Contested report On 1 August 2007, the applicant was honorably discharged from active duty under the Fiscal Year 2007 (FY07) Enlisted Date-of- Separation (DOS) Rollback Program. She was selected for the rollback based on her RE code of “2X” (First-term, second-term, or career airman considered but not selected for reenlistment under the SRP). She served 5 years, 8 months, and 18 days on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s requests pertaining to the Article 15. JAJM states the applicant has not shown a clear error or injustice. She does not dispute that she fell asleep on post and does not contest her commander’s findings. Her assertions as to her medical condition and medication are supported by the record, and would appear to explain why she may have been susceptible to falling asleep on post on 5 January 2007. However, she had the opportunity to present to her commander this and any other evidence she deemed relevant, and to consult with her counsel prior to presenting such evidence. Indeed, after consulting with her counsel, the applicant specifically addressed relevant aspects of her medical condition and medication in her written presentation to her commander. The commander acknowledged in Block 4 of the Air Force Form 3070, Record of Nonjudicial Punishment Proceedings, that he considered the evidence before him, including any matters presented by the applicant, in determining whether an offense occurred, and imposing an appropriate punishment. The commander was in the best position to carefully weigh all of the evidence while that evidence was fresh. The commander was also in the best position to make informed findings of fact, and arrive at a suitable punishment. If the applicant believed the commander’s decision was in error or unjust, her recourse was to appeal to the next higher commander. She did not avail herself of the opportunity to appeal to the next higher commander, despite now complaining that her squadron commander was on leave at the time of the Article 15 proceedings. JAJM indicates the punishment imposed was within legal limits. Reduction in grade, suspended forfeitures and a reprimand were authorized, and were deemed by her commander to be an appropriate punishment for a serious offense involving the safety and security of forces in a deployed environment. She demonstrates no prejudice from consulting with her counsel by telephone or e- mail, rather than in person. Likewise, she demonstrates no prejudice resulting from imposition of the Article 15 punishment by an acting commander while the squadron commander was on leave. The complete JAJM evaluation is at Exhibit C. AFPC/DPSOS provides their evaluation for information only. DPSOS states the applicant’s discharge was correctly administered based upon her RE code of “2X.” She was separated under the FY07 Enlisted DOS Rollback Program with a Separation Program Designator (SPD) code of “JBK” (Completion of required active service) in accordance with Military Personnel Flight (MPF) Memorandum 07-06, dated 26 January 2007. The complete DPSOS evaluation is at Exhibit D. AFPC/DPSOA recommends denial of the applicant’s request to change her RE code. DPSOA states that after reviewing the applicant’s records, they found no Air Force Form 418, Selective Reenlistment Program Consideration. However, a review of the Military Personnel Data System, indentifies her in Assignment Availability Code (AAC) “10” (Denied Reenlistment effective until the member separates); Promotion Eligibility Code (PEC) “J” (Denied Reenlistment); an Unfavorable Information File (UIF) with a 16 January 2009 expiration date; and RE code “2X.” Additionally, she received an Article 15, dated 16 January 2007. Although there is no AF Form 418 on file, the applicant’s record does indicate one was accomplished by her commander non-selecting her for reenlistment. The complete DPSOA evaluation is at Exhibit E. AFPC/DPSOE defers to the recommendations by AFLOA/JAJM and AFPC/DPSOA. Should the Board remove the Article 15 and allow her reentry onto active duty, her rank would be senior airman with a DOR of 28 April 2004. The complete DPSOE evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: Copies of the Air Force evaluations were forwarded to the applicant on 4 December 2009 for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has 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 probable error or injustice. We find no evidence of error in this case and after thoroughly reviewing the documentation applicant submitted in support of her appeal, we do not believe she has suffered from an injustice. Evidence has not been presented which would lead us to believe the nonjudicial punishment, initiated on 16 January 2007 and imposed on 17 January 2007 was improper. In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority. We have no such showing here. The evidence indicates that, during the processing of this Article 15 action, the applicant was offered every right to which she was entitled. She was represented by counsel, waived her right to demand trial by court-martial, and submitted written matters for review by the imposing commander. After considering the matters raised by the applicant, the commander determined that she had committed the alleged offense and imposed punishment. The applicant has not provided any evidence showing the imposing commander or the reviewing authority abused their discretionary authority; her substantial rights were violated during the processing of the Article 15 punishment; or the punishment exceeded the maximum authorized by the UCMJ. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application _________________________________________________________________ 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 AFBCMR Docket number BC-2009-00707 in Executive Session on 11 March 2010, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence for AFBCMR Docket Number BC- 2009-00707 was considered: Exhibit A. DD Form 149, dated 20 Feb 08, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 5 May 09. Exhibit D. Letter, AFPC/DPSOS, dated 28 Sep 09, w/atchs. Exhibit E. Letter, AFPC/DPSOA, dated 26 Oct 09. Exhibit F. Letter, AFPC/DPSOE, dated 30 Oct 09. Exhibit G. Letter, SAF/MRBR, dated 4 Dec 09. Panel Chair