RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02255 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His nonjudicial punishment received under Article 15, Uniform Code of Military Justice (UCMJ) be removed from his record. _________________________________________________________________ APPLICANT CONTENDS THAT: The wrong date appears on the second page of his Air Force Form 1168, Statement of Suspect/Witness/Complainant. The erroneous date reveals the investigator suspected him of providing a false official statement, but did not inform him at the time of that suspicion or provide him a new Article 31, UCMJ rights advisement. The 2006 date on his statement was not brought to his attention, which could have placed the entire investigation in question. In addition, he was not adequately advised by his defense counsel with respect to his right under the UCMJ, nor was his defense counsel present when he signed the Air Force (AF) Form 3070C, Record of Nonjudicial Punishment Proceedings, indicating his election not to appeal. Lastly, his case would have been better investigated by the Air Force Office of Special Investigations (AFOSI) as an informed investigator would not turn a domestic matter into a criminal action. In support of his appeal, the applicant provides a personal statement, a statement from his counsel, electronic communications, Area Defense Counsel (ADC) communications, AF Form 3070C, and several AF Forms 1168 with attachments. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving as a member of the Regular Air Force in the grade of major with a date of rank of 1 September 2006. The remaining relevant facts, extracted from the applicant’s service records, are contained in the Air Force evaluation at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant has failed to demonstrate a material error or injustice as required by AF Instruction 36-3203, paragraph 4.1. While it is true that the second page of his statement is dated 16 October 2006, the first and third pages of that statement are correctly dated 16 October 2007. In light of the correct date on the first and third pages of the statement, which coincides with the period of the investigation, there is no indication of any serious confusion by any party as to the date of the statement. The applicant’s contention that the 2006 date demonstrates the investigator should have provided a new UCMJ Article 31 rights advisement is illogical and unsupported. In any event, the applicant provides no demonstration that the 2006 date resulted in prejudice to his Article 15 proceedings. Accordingly, while the 2006 date on the second page of his statement is incorrect, it did not constitute material error or injustice. JAJM indicates the applicant’s contention that he was not adequately advised by his defense counsel also lacks merit. He provides two electronic messages from his defense counsel in which his defense counsel conveyed statements by a base legal office attorney suggesting that an appeal may hurt any chance of avoiding placement of the Article 15 in the applicant’s Officer Selection Record (OSR). While the applicant’s defense counsel initially recommended the applicant decline his right to appeal, the defense counsel subsequently informed the applicant that the OSR “may still be up in the air” and asked the applicant to give him a call. Moreover, the applicant does not recount any actual discussions he held with his defense counsel. In fact, the materials provided by the applicant indicate that his defense counsel was actively attempting to avoid placement of the Article 15 in his OSR and to keep the applicant informed. Additionally, there was no requirement and no indication of need for his counsel to be present when the applicant signed his appeal elections. The AF Form 3070C demonstrates the applicant availed himself of the ability to submit any matters that he believed pertinent to the determination of whether the Article 15 should be placed in his OSR. Finally, the applicant acknowledged his guilt in his submission to his commander, does not dispute his punishment of forfeitures and a reprimand, and does not indicate that he believes that there was a serious basis to challenge the commander’s determinations on appeal. Accordingly, no basis is provided for concluding that the applicant received inadequate counsel or was otherwise prejudiced. Finally, the applicant’s contention that an investigation by AFOSI would have been “better” or resulted in no Article 15 action is speculative and unsupported. He acknowledges that he made a false statement while under questioning by a Security Forces investigator. He does not assert that he would have answered truthfully had he been interviewed by an AFOSI investigator, and there is no reason to believe an AFOSI investigation would have led to a different outcome. It is JAJM’s opinion that the applicant has not shown a clear error or injustice. The complete JAJM evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: At no point did he ever state that he was in agreement with the specification as written in the Article 15. He did attempt to have his assigned counsel work to have the wording in the specification changed. However, he was never briefed as required by AF Instruction 51-202, nor was he advised of violating Article 107. The form as signed and dated by the investigator does not accurately reflect the sequence of events. There is no doubt in his mind that his military record would have provided an adequate defense to a charge without the extemporaneous wording added by the Base Legal Office. He should have never relied on the advice he was given. The only reason he did not challenge the advice of his assigned counsel, was based upon the relationship between the ADC and the Base Legal Office. In fact, when he signed away his appeal rights in front of the Base Legal Attorney, whom he believed was working on his behalf, he still felt a decision not to have the Article 15 placed in his OSR was in hand. The applicant’s complete rebuttal, with attachments, is at Exhibit D. _________________________________________________________________ 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. We note the assertions the applicant and his counsel make concerning the erroneous date on page two of the AF Form 1169. However, we do not find this typographical error had a material impact on the outcome of the Article 15 action. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Accordingly, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ 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-2010-02255 in Executive Session on 15 March 2010 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence for AFBCMR Docket Number BC- 2010-02255 was considered: Exhibit A. DD Forms 149, dated 15 Jun 10, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 26 Jul 10. Exhibit C. Letter, SAF/MRBR, dated 13 Aug 10. Exhibit D. Letter, Applicant, dated 10 Sep 10, w/atchs. Panel Chair