RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05820 COUNSEL HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. Void and remove the Article 15, Uniform Code of Military Justice (UCMJ) punishment, received on 10 August 2011, and any references thereto from his official military personnel record. 2. His referral Enlisted Performance Report (EPR), rendered for the period 3 June 2011 through 2 June 2012, be voided and removed from his official military personnel record. 3. His demotion from master sergeant (E-7) to technical sergeant (E-6) be voided and his rank of master sergeant be reinstated. 4. Remove any adverse documentation from his promotion selection record. ________________________________________________________________ _ APPLICANT CONTENDS THAT: His Article 15 and associated subsequent adverse actions were all based on unreliable and personally motivated hearsay, as opposed to credible evidence. He has not committed any misconduct in his 18 years of service. Because of his demotion to technical sergeant (E-6), he will be forced into retirement in 2013 due to reaching his high year of tenure. His command promised to return his stripe in three months; however, they have failed to honor that promise. In support of his appeal, the applicant provides a personal statement, and, copies of his Article 15; response to the Article 15; Area Defense Counsel’s response to the Article 15; request for suspension of nonjudical punishment; witness statements; referral EPR; career EPRs; awards, decorations, and recognitions; and character references. 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 retired effective 1 December 2013 in the grade of technical sergeant. On 10 August 2011, the applicant was offered nonjudicial punishment under Article 15, UCMJ, for one specification of adultery by having sexual intercourse with a married woman not his wife in violation of Article 134, UCMJ. The applicant was afforded the opportunity to consult with defense counsel, accepted the Article 15, and waived his right to demand trial by court-martial. He elected to present written matters and made a personal appearance before the commander. On 16 August 2011, the applicant’s group commander decided the applicant had committed the offense and imposed punishment consisting of reduction in grade to master sergeant, with a new date of rank of 16 August 2011, and a reprimand. The applicant appealed the commander’s decision; however, his appeal was denied. The Article 15 action was reviewed and determined to be legally sufficient. As a result of his nonjudicial punishment, the applicant received a referral EPR for the period 3 June 2011 through 2 June 2012. The remaining relevant facts, extracted from the applicant’s military service records, are contained in the evaluations by the Air Force offices of primary responsibility at Exhibits C through F. ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant does not allege error in how the Article 15 was processed; however, he does allege that the evidence used to support his nonjudicial punishment was inconsistent, unreliable, and does not rise to the legal standard required for giving nonjudicial punishment. Nevertheless, the applicant’s commander looked at all the relevant evidence, and, with the guidance of her staff judge advocate, decided there was enough relevant evidence to impose the nonjudical punishment. The nonjudicial punishment was reviewed for legally sufficiency by the wing staff judge advocate and by the general court-martial convening authority’s staff judge advocate, where it was deemed legally sufficient by both levels of legal review. The applicant does not make a compelling argument that the Board should overturn the commander’s original, nonjudicial punishment decision. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and the punishment decision was well within the limits of the commander’s authority and discretion. The applicant elected not to appeal the nonjudicial punishment decision. The complete JAJM evaluation is at Exhibit C. AFPC/DPSIM agrees with AFLOA/JAJM’s recommendation to deny the relief sought to set aside the nonjudicial punishment received on 13 August 2011. The applicant’s request is based on the legitimacy of the evidence used in determining appropriate punishment. Unfortunately, their office cannot speak to whether or not the commander’s judgment or actions were just or not; at most, they can only discuss if proper procedure was followed to establish an Unfavorable Information File (UIF). After careful review of the evidence presented, they have concluded correct procedure was used in administering the UIF. The applicant has not provided sufficient evidence to clearly establish a procedural error or injustice by the Air Force. The complete DPSIM evaluation is at Exhibit D. AFPC/DPSID states that based on the recommendation from AFLOA/JAJM and lack of evidence of corroborating evidence provided by the applicant, they recommend the Board deny the applicant’s request to void the contested EPR. The applicant has not provided evidence to show the report was unjust or inaccurate at the time it was written. They defer consideration of any other aspects of the applicant’s appeal to the relevant appropriate agencies or offices of primary responsibility. The complete DPSID evaluation is at Exhibit E. AFPC/DPSOE states that based on the AFLOA/JAJM opinion, AFPC/DPSID has determined the contested EPR is accurate as written and recommends denial of its removal. Their office has no equity in the decision. Based on the applicant’s reduction to technical sergeant, he will be forced to retire effective 1 December 2013. Should the Board remove the Article 15 and restore the applicant’s rank to master sergeant, his original date of rank was 1 March 2010. Should the Board also remove the referral EPR, he would be eligible for supplemental promotion consideration to senior master sergeant (E-8) with cycle 12E8 (once tested). The complete AFPC/DPSOE evaluation is at Exhibit F. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: The substantive issues raised in his appeal have not been adequately addressed by the Air Force. The entirety of the government’s response is “trust the commander.” There was no analysis about how the inconsistent, unreliable statements, upon which the adverse actions were based, met the applicable legal standard. AFLOA/JAJM simply states that the commander made a decision that was previously reviewed for legal sufficiency and that the applicant does not make a compelling argument. The other advisory opinions follow the recommendation of JAJM. No one bothered to try to reconcile the clear evidentiary problems – because they can’t be reconciled. No one has attempted to explain away the obvious motives of his accuser – because they can’t be explained away. There was no analysis of the unfilled promise by his command, his career contributions or the impact of the adverse actions on his career. He doesn’t understand how an attorney arguing that an appeal should be denied can make a conclusory recommendation without a substantive analysis and argument to back it up. The applicant’s complete rebuttal 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 an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, 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. We note the applicant’s contentions that the evidence to support the adultery allegation was inconsistent and did not legally support the allegation; however, he does not provide any evidence to support his contentions that the evidence used to support the nonjudicial punishment action against him was insufficient. While the impact of these actions on the applicant’s career may be regrettable, we do not find the actions serve to make the applicant the victim of error or injustice. Therefore, in the absence of evidence to the contrary, we do not find it in the interest of justice 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-2012-05820 in Executive Session on 12 December 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2012-05820: Exhibit A. DD Form 149, dated 4 Dec 12, w/atchs. Exhibit C. Letter, AFLOA/JAJM, dated 29 Jan 13. Exhibit D. Letter, AFPC/DPSIM, dated 25 May 13. Exhibit E. Letter, AFPC/DPSID, dated 23 Aug 13. Exhibit F. Letter, AFPC/DPSOE, dated 25 Sep 13. Exhibit G. Letter, SAF/MRBR, dated 23 Oct 13. Exhibit H. Letter, Applicant, dated 8 Nov 13. Panel Chair