RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02015 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected as follows: 1. The Article 15 dated 14 Jul 09 be rescinded 2. His Letter of Admonishment (LOA) dated 25 May 09, be reinstated. 3. He be restored to the grade of master sergeant with a date of rank and effective date of 1 Jun 09. 4. All references to the Article 15 stated in his referral AF Form 910, Enlisted Performance Report (EPR) rendered for the period of 2 Jun 08 thru 29 Dec 09, be removed and an overall rating of “5” be applied or the EPR be removed from his record. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. His AF IMT 1168, Statement – Suspect/Witness/Complainant, dated 16 May 09, was used against him in conjunction with the Article 15 action. He was accused of submitting false information on his statement. 2. On 25 May 09, he received a LOA for failure in leadership and exercising poor judgment; specifically, ignoring a violation of General Order #1 (alcohol use). On 9 Jul 09, the LOA was rescinded; however, he feels it should not have been. One individual received a LOA and one was not punished. 3. Between 9 and 14 Jul 09, he was unjustly served with an Article 15 for two specifications: 1) wrongfully consuming alcohol and 2) falsifying an official statement. He was issued a LOA for wrongfully consuming alcohol. The alcohol violation was included in his 16 May 09 statement; however, it was not acted upon and he did not tell the complete truth. However, his 22 Jun 09 statement was the absolute and complete truth. 4. His punishment was read as a reduction to the grade of technical sergeant with a new date of rank of 14 Jul 07 and reprimand. He would not have accepted the punishment if he knew his date of rank (DOR) would be changed to 14 Jul 09. The error substantially changed his punishment and he was not given an opportunity to decline the new date. With the earlier date, he could test in the next cycle and retain two years time in grade; however, he will not test for master sergeant until 2012. 5) He was issued the Article 15 as a Senior Noncommissioned Officer (SNCO), but at the time of the incident, he was not a SNCO. He would like the punishment set aside. In support of his request, the applicant submits copies of an incident/punishment timeline, General Order Number 1B, NJPs, suspect/witness/complainant statements, character statements, award recommendations and Enlisted Performance Reports (EPRs). The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of technical sergeant. On 15 May 09, the applicant attended a bonfire with other airmen deployed to a forward operating base in Afghanistan where he and other individuals consumed alcohol, in violation of General Order 1B, paragraph 2C. On 25 May 09, he was issued a Letter of Admonishment (LOA). He acknowledged receipt of the LOA and requested to submit a statement on his behalf. His commander considered the statement; however, the LOA was not rescinded. During promotion cycle 08E7, he was promoted to the grade of master sergeant, having assumed that grade effective and with a date of rank of 1 Jun 09. On 22 Jun 09, he was given rights advisement based on the alleged offense of violating a lawful general order. On 9 Jul 09, his commander imposed Article 15 nonjudicial punishment (NJP). He was charged with violating a lawful general regulation for wrongfully consuming alcohol and making a false official statement. He consulted counsel, accepted the Article 15 and waived his right to demand trial by court-martial. He submitted a statement on his own behalf but declined to make a personal appearance. On 14 Jul 09, his commander imposed punishment consisting of reduction to the grade of technical sergeant with a new date of rank of 14 Jul 09 and reprimand. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to remove the Article 15 action from his records. 1. The applicant’s rights were observed throughout the process. At the time the applicant gave his statement, he was not suspected of having committed an offense under the UCMJ; therefore, no rights advisement was required prior to his being asked to give a statement. His signature on the AF IMT 1168, indicates he read the statement, initialed all pages and/or corrections and that the statement was true and correct to the best of his knowledge. JAJM states the applicant’s statement as a witness rather than pursuant to a rights advisement has no bearing on the matter as he is not entitled to submit a false official statement. 2. JAJM notes the commander’s decision to rescind the LOA and issue NJP is not arbitrary or capricious and he followed the proper and necessary processes for imposing the actions. 3. JAJM opines the Article 15 punishment is fully supported by the evidence. His commander was in a unique position to evaluate his case; particularly in light of the issues of good order and discipline in a deployed environment. The applicant’s allegation of lesser punishment of others is unfounded as each case is evaluated on its own merits. JAJM states the errors in the Article 15 are harmless in its processing and do not warrant action by the Board. JAJM notes all elements of the offense were included in the specification; however, the date of the applicant’s false statement was mixed up. JAJM opines it is disingenuous for the applicant to claim he was not reasonably informed of the offense in question considering he made two sworn statements in conjunction with the events. JAJM notes the applicant did not raise this issue with his commander or appeal the issue to the next higher commander. 4. JAJM notes the applicant received punishment on 14 Jul 09; however, he did not appeal the commander’s decision on that date. His appeal was submitted and denied in Oct 09. The applicant initialed the change to the Article 15 between 11 Aug 09 and 8 Sep 09. The fact that the applicant’s initials were added to the Article 15 after Capt M affirmed the legal sufficiency of the Article 15 is error. JAJM notes the error should be considered harmless for two reasons: 1) AFI 36-2404, Service Dates and Dates of Rank, paragraph 12.2 states the DOR in the grade to which an airman is reduced under Article 15, UCMJ, is the date of the endorsement (or letter) directing the reduction. The endorsement date of the applicant’s punishment was 14 Jul 09. JAJM states the DOR 14 Jul 07 is clearly a typographical error which was properly corrected once it was discovered; 2) as stated by the applicant, in Oct 09 he was able to prepare an appeal of his Article 15 to the commander of higher rank than the one that provided punishment. JAJM opines his appeal was based on the fact he still wanted to take responsibility for his actions; however, he felt the punishment was too severe. 5) JAJM notes the applicant did not appeal the commander’s decision or submit a statement on his behalf regarding the Senior Noncommissioned Officer Selection Record (SNOOSR). His commander elected not to file the action in his SNCOSR. JAJM notes setting aside the Article 15 would restore the applicant to the position held before imposition of the punishment as if the action has never been initiated. JAJM states 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. JAJM notes the applicant made a false official statement and wrongfully drank alcohol in a deployed environment. The complete JAJM evaluation is at Exhibit B. HQ AFPC/DPSOE recommends denial of the applicant’s request for restoration of his rank to master sergeant and defers to the recommendations submitted by JAJM and DPSID. DPSOE notes the referral EPR would not have affected the applicant’s promotion to master sergeant for cycle 08E7. DPSOE states supplemental consideration would not be required, if the report is removed. The complete DPSOE evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates many of his earlier contentions. He did not file an appeal through the Evaluation Reports Appeals Board (ERAB). He accepted the Article 15 with the DOR of 14 Jul 07 in “good faith” believing he was being given a break and would be able to immediately test for master sergeant. One "error" that was never addressed in the advisory opinion was the fact that he was reprimanded as a senior noncommissioned officer when he was not one at the time of the incident. He firmly believes that if the correct dates, times, places of the official statement had been correct, he would have been reprimanded as a noncommissioned officer and not held to a higher standard than he should have been. He believes a better approach would have been to redline his promotion at the start of the investigation and not punish him later. He was let down by the Air Force legal system. The applicant’s complete submission, with attachment, is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: HQ AFPC/DPSID recommends denial of the applicant’s request to remove all references to the Article 15 from the referral EPR rendered for the period of 2 Jun 08 through 29 Dec 09 and his overall rating of “4” be changed to read “5.” DPSID states the applicant has provided no evidence of inappropriate handling or decision-making on the part of his leadership in pursuing the Article 15 action. DPSID notes the applicant has not provided a substitute report or memorandums of support from his original rating chain to justify a change in the overall rating from “4” to “5.” DPSID states the report was accurately written and should not be changed. The complete DPSID evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant states he is requesting the EPR rating be changed only if the Article 15 is expunged. The applicant’s complete submission is at Exhibit H. _________________________________________________________________ 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 an error or injustice to warrant rescinding the applicant’s Article 15 and reinstating the LOA he previously received. His contentions are duly noted; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibilities and adopt their rationale as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an injustice. While we note there were errors in the processing of his Article 15, as pointed out by JAJM, the errors are harmless and we agree they do not warrant action by this Board. The applicant also asserts he was held to a higher standard and punished as a senior NCO when in fact he was a NCO at the time of the incident. However, no evidence has been presented which would lead us to believe that the nonjudicial punishment, initiated on 9 Jul 09 was improper. In cases of this nature, we are inclined not 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 he was entitled. He consulted with defense counsel, waived his 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 the applicant had committed the alleged offenses and imposed punishment on the applicant. The applicant has not provided any evidence showing the imposing commander authority abused his discretionary authority, that his substantial rights were violated during the processing of the Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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 this application in Executive Session on 8 Mar 12, under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2011-02015: Exhibit A. DD Form 149, dated 25 May 11, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 18 Jul 11. Exhibit C. Letter, HQ AFPC/DPSOE, dated 13 Sep 11. Exhibit D. Letter, SAF/MRBR, dated 5 Oct 11. Exhibit E. Letter, Applicant, dated 6 Oct 11, w/atch. Exhibit F. Letter, HQ AFPC/DPSID, dated 2 Nov 11. Exhibit G. Letter, AFBCMR, dated 4 Nov 11. Exhibit H. Letter, Applicant, dated 14 Nov 11. Panel Chair