RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00034 INDEX CODE: 111.02, 126.00 COUNSEL: NONE HEARING DESIRED: NO ___________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Article 15 be removed from his records. 2. His referral Enlisted Performance Report (EPR) for the period of 1 May 07 thru 3 Jun 08 be expunged from his records. ___________________________________________________________________ APPLICANT CONTENDS THAT: 1. He received an Article 15 for sexual assault that he did not commit. After the investigation was completed, his Article 15 package was forwarded to the 5th Air Force Commander (5AF/CC) to decide if action was going to be taken on his case. The package was returned twice without action stating the evidence did not support action by the 5AF/CC; any action would need to be taken at the Wing level. 2. 5AF/CC issued a “Withholding Authority to Impose Nonjudicial Punishment under Article 15, Uniform Code of Military Justice (UCMJ)” memorandum that did not allow commanders to impose nonjudicial punishment under Article 15 on officer personnel and senior non-commissioned officers in the grade of senior master sergeant and chief master sergeant. He believes the Wing acted in direct contradiction of the AFI and the memorandum with regard to imposing UCMJ punishment. He maintains his innocence in this matter. His Area Defense Counsel (ADC) expressed concern with the UCMJ punishment that was imposed and requested the commander review the “authority” to issue an Article 15. His ADC also urged the commander to consider that current delegations do not authorize the issuance of this Article 15. 3. When he arrived at his new base, he completed a set-aside package. His new commander was willing to set aside the Article 15; however, he was misinformed on the timeline to submit the package and therefore missed the deadline. 4. With regard to his request for his referral EPR to be expunged from his records, he was not officially charged prior to his EPR closeout date and feels that because the investigation was not completed prior to the closeout date he should not have received a referral EPR. In support of his request, the applicant provides copies of memorandums from the AFLOA/ADC, copies of the Withholding Authority to Impose Nonjudicial Punishment memorandums, an excerpt from AFI 51-202, a copy of the applicant’s response to the Article 15, a copy of an AF Form 3070B, Record of Nonjudicial Punishment Proceedings (MSgt thru CMSgt), a copy of the applicant’s request to set-aside the Article 15, a copy of the applicant’s referral EPR, a copy of the applicant’s rebuttal to the EPR, and copies of character letters. His complete submission, with attachments, is at Exhibit A. ___________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of senior master sergeant. On 8 Sep 08, the applicant’s commander offered him nonjudicial punishment. The specific reasons for this action were: a. Violation of Article 93, UCMJ: One specification of cruelty and maltreatment of a subordinate for making sexually suggestive remarks to a female airman. b. Violation of Article 120, UCMJ: One specification of wrongful sexual contact. c. Violation of Article 134, UCMJ: One specification of being drunk and disorderly. The applicant consulted with counsel and waived his right to demand trial by court-martial. He submitted written statements and personally appeared before the commander. The commander found that the applicant had committed cruelty and maltreatment, and had been drunk and disorderly. However, the commander did not find the applicant guilty of one specification of wrongful sexual contact. The applicant forfeited $1,985.00 pay per month for two months and received a reprimand. The applicant appealed the commander’s decision to the 18th Wing Commander; however, his appeal was denied. A legal review determined the Article 15 was legally sufficient. ___________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denying the removal of the applicant’s Article 15 from his records. JAJM states the applicant contends the injustice in this case are that the commanders did not follow the governing regulations for imposing nonjudicial punishment on a member in the grade of senior master sergeant and that he did not commit sexual assault against the accuser. However, JAJM points out that the applicant was charged with three offenses on the Article 15; however the applicant only focused on the sexual assault offense when he provided his appeal to the commander. As a result, the commander lined through the offense of wrongful sexual contact, but found that the applicant did commit the other two offenses. The commander acted within the regulations governing nonjudicial punishment when he imposed the punishment. For the offenses committed, the punishment was lawful and not too harsh. Additionally, the applicant has not provided any other evidence with regard to the other offenses and therefore has not met the burden of proof. JAJM notes the “Withholding Authority to Impose Nonjudicial Punishment under Article 15, Uniform Code of Military Justice (UCMJ)” memorandums, stating the newly assigned commander intentionally did not sign a “Withholding Authority to Impose Nonjudicial Punishment under Article 15, Uniform Code of Military Justice (UCMJ)” to the Kadena commander because he was a general officer unlike the colonels assigned to other 5AF locations. The AFLOA/JAJM complete evaluation is at Exhibit B. AFPC/DPSIDEP recommends denying the removal of the applicant’s referral EPR from his records. DPSIDEP states the applicant received a referral EPR for the period ending 3 Jun 08. The referral report was sent to the applicant; he provided comments on his own behalf and by his ADC. The applicant did not submit an appeal through the Evaluation Reports Appeals Board (ERAB); however, the ERAB reviewed the applicant’s application and recommends denial. On 8 Jul 08, the group commander reviewed the comments IAW AFI 36-2406. On 8 Sep 08, the applicant received the Article 15; however, based on the applicant’s own rebuttal to the contested EPR, the Article 15 was unrelated to the comments mentioned in the EPR. The applicant has not provided any other evidence to substantiate his claim that the statements in the EPR are inaccurate or unjust. The DPSIDEP complete evaluation is at Exhibit C. ___________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 30 Apr 10 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 error or injustice. After a thorough review of the evidence and the applicant’s submission, we are not persuaded the requested relief should be granted. His contentions are duly noted, however, we do not find these assertions, in and of themselves, sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility. The evidence reflects that the commander initiated the Article 15 action based on information he determined to be reliable, the action was properly accomplished and the applicant was afforded all rights granted by statute and regulation. We are not convinced, by his submission, that his commander abused his discretionary authority when he issued the Article 15, and since we find no abuse of that authority, we find no reason to overturn the commander’s decision. With regard to the EPR removal, we are not persuaded by the evidence provided that the contested report is not a true and accurate assessment of his behavior and demonstrated potential during the specified time period or that the comments contained in the report were in error or contrary to the provisions of the governing instruction. According to AFPC/DPSIDEP, the Article 15 was unrelated to the comments mentioned in the EPR and the applicant has provided no evidence to substantiate that the statements in the EPR are inaccurate or unjust. Therefore, we agree with AFPC/DPSIDEP recommendation and adopt their rationale as the basis for our conclusion that the applicant has not has suffered either an error or an injustice. Therefore, in absence of evidence to the contrary, we find no basis to recommend granting the relief sought. ___________________________________________________________________ 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-2010-00034 in Executive Session on 13 Oct 10, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence for Docket Number BC-2010-00034 was considered: Exhibit A. DD Form 149, dated 22 Dec 09, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 8 Mar 10. Exhibit C. Letter, AFPC/DPSIDEP, dated 9 Apr 10 Exhibit D. Letter, SAF/MRBR, dated 30 Apr 10. Panel Chair