RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00799 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her reduction in pay grade to airman as a result of an Article 15 she received on 3 Jun 10, be corrected, and she be restored to the grade of airman first class. _________________________________________________________________ APPLICANT CONTENDS THAT: Her record is unjust due to the severity of the punishment for the crime committed. In support of her request, the applicant provides copies of her Article 15 proceedings, a commander’s recommendation letter, a letter from her Area Defense Counsel (ADC), and character reference letters. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of airman (E-2), with a date of rank of 3 Jun 10. In Jan 10, the applicant failed to obey a barment order by bringing her husband onto the base, in violation of a barment order issued to him on 21 Jan 10. On 21 May 10, the applicant’s commander offered the applicant then an airman first class (E-3), nonjudicial punishment for making a false official statement to Security Forces about her husband being on base, in violation of Article 107, Uniform Code of Military Justice (UCMJ); and unlawfully assisting her husband to enter the installation in violation of an order barring him from the base, in violation of Article 134, UCMJ. After consulting with her assigned military defense counsel, the applicant accepted nonjudicial punishment proceedings and waived her right to demand trial by court-martial. She presented written matters to and personally appeared before the commander, who, on 3 Jun 10, decided the applicant committed the alleged offenses. The resulting punishment consisted of reduction to the grade of airman, and a reprimand. The applicant appealed, and the appeal was denied. A legal review of the Article 15 action determined it was legally sufficient. The applicant received a referral Enlisted Performance Report (EPR), with an overall rating of “4.” _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. The applicant has not shown a clear error or injustice. The Manual for Courts-Martial (MCM) Part V and AFI 51-202, Nonjudicial Punishment, provide for certain relief from nonjudicial punishment, specifically, mitigation, remission, suspension, and set aside. A set aside of nonjudicial punishment is the removal of the punishment from the record and the restoration of the service member’s rights, privileges, pay, or property affected by the punishment. Setting aside an Article 15 action restores the member to the position held before imposition of the punishment, as if the action had never been initiated. Set aside of punishment should not routinely be granted. Rather, set aside is to be used strictly in the rare and unusual case where a genuine question about the service member’s guilt arises or where the best interests of the Air Force would be served. The applicant has not provided sufficient basis to warrant a set aside of the Article 15. Her current commander does not support the set aside and the letters included in the application consistently state that the applicant acknowledges what she did and takes responsibility for her actions. She has not raised any genuine doubt as to her guilt of the offenses for which she was punished or established any error or injustice in the Article 15 action such that a set aside would be in the best interests of the Air Force. The Board should also not grant the applicant’s request to be restored to the grade of airman first class. The crux of her argument is that she admits she committed the offenses, but that a reduction in grade was too severe as punishment for the offenses. The applicant presents the opinion of her current commander and defense counsel; however, the applicant’s previous commander felt that an Article 15 and reduction in grade were the appropriate response to the applicant’s offenses. That commander was in the best position to evaluate the offenses, the applicant’s responses and the effect that the offenses would have on good order and discipline in the unit. The applicant’s case is not strong enough to outweigh the deference that should be given to the commander who was there at the time of the offense. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: JAJM is focusing on the punishment given within the Article 15 that she received. This is not the case of injustice causing her to take these actions. Her current commander agreed with her submission for mitigation and return of her stripe; however, he was unable to grant mitigation due to the fact that time ran out. The package was submitted in Aug 10, which gave squadron leadership plenty of time to review, edit and submit the package before the commander acted on it. She is requesting either a set aside or mitigation of forfeitures; she knows that a set aside is rarely granted. She is requesting mitigation to forfeitures as she is the sole provider for four family members. She knows forfeitures are still a loss of money; however, it will result in less money being taken out. Given all of the letters supporting her character and vouching for her duty performance, it is in the best interest of the Air Force to put her in a position to survive this mistake and go on to have a successful career—one she knows she is capable of. The applicant's complete response, with attachment, is at Exhibit E. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to warrant relief in this case. After thoroughly reviewing the evidence of record, the majority of the Board is inclined to grant partial relief. After carefully weighing the evidence presented in this case, to include the letter from her current commander supporting reinstatement of the applicant’s rank of airman first class without pay, a majority of the Board is inclined to grant this portion of her request on the basis of clemency. While we normally give great deference to the commanders in place at the time, we note her current commander supported the return of her stripe, but was unable to complete the action within the required timeline to exercise his authority to do so. Accordingly, the majority of the Board believes it would be in the interest of justice to restore her original date of rank to the grade of airman first class without back pay. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice (UCMJ) initiated on 21 May 2010, reducing her from airman first class (E-3) to airman (E-2), was suspended until 11 August 2011, at which time the suspension was remitted, and all rights, privileges and property of which may have been deprived were restored. The following members of the Board considered AFBCMR Docket Number BC-2011-00799 in Executive Session on 11 Aug 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a majority vote, the Board recommended approval of the application. xxx voted to deny the applicant’s request and elected not to submit a minority report. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Mar 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 5 Apr 11. Exhibit D. Letter, SAF/MRBR, dated 22 Apr 11. Exhibit E. Letter, Applicant, dated 29 Apr 11, w/atch. Panel Chair