RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04267 JASON A. EADDY COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: The nonjudicial punishment (Article 15) imposed on him be set aside and removed from his records and his rank of staff sergeant/E-5 be reinstated. ________________________________________________________________ APPLICANT CONTENDS THAT: On 6 June 2012, he transferred data to an XLS spreadsheet from a previously saved document to send to the Installation Spectrum Manager. The information was processed in that format to ease the customer’s readability. Prior to the transfer, he called another staff sergeant to observe him run the COMPUSEC scan and transfer of data into the XLS format. The staff sergeant also witnessed him run the COMPUSEC TOOL BOX program. This program ensures the transferred data is unclassified. Unfortunately, data in XLS format cannot be scanned by this program and the classified information was not flagged. This incident caused a one-week work stoppage on unclassified computers for the entire office. It was later deemed that he needed to receive some form of punishment for creating the incident. He was formally accused of dereliction of duty, in violation of Article 92, Uniform Code of Military Justice (UCMJ), on 18 June 2012. There was no security report used as evidence against him, in accordance with ACC Instruction 33-181. To date, the security manager has yet to see a report on the incident. He believes there was evidence used against him, of which, he had no knowledge. Additionally, near the end of the Article 15 process, two of his co-workers provided statements that he has yet to see. The evidence used to support the Article 15 consisted of a Memorandum for Record from a chief master sergeant stating that he did not follow the communication task orders (CTO). After reviewing the task orders, along with speaking to his security manager for clarification, he learned these documents have nothing to do with two-person integrity when transferring data. The two CTOs referenced require that you submit paperwork to the wing Information Assurance Office to authorize access to the classified system. Unless the wing has documentation on file, no one is authorized to perform the transfer. A monthly log must be submitted to the wing annotating what was transferred. The CTOs basically lift the ban on thumb drives and authorizes their use as an option. Unfortunately, this was his second security incident. The first occurred at a previous base involving an Ipod in a secured location. Due to this previous incident, he believes the commander presumed he was guilty from the beginning. He was used as an example as there have been other security incidents in the branch. The unwillingness of the commander to follow proper protocol to ensure that an investigation was done has left too many holes in this process for him to be punished under Article 15. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a member of the Air Force serving in the grade of senior airman. On 18 June 2012, he was notified that his commander was considering whether or not to punish him under Article 15, UCMJ, for violation of Article 92, dereliction of duty. Specifically, it was alleged that he was derelict in the performance of his duties by willfully failing to follow the twelve step procedures, by failing to use two-person integrity when transferring data from a classified to an unclassified system. The applicant consulted counsel, waived his right to trial by court-martial and submitted a written presentation for his commander’s consideration. He did not request a personal appearance before the commander. On 25 June 2012, the commander found that he committed the offense and imposed punishment consisting of a reduction in rank to senior airman, with a new date of rank of 25 June 2012, and a reprimand. He appealed the punishment and on 25 July 2012, the appellate authority denied his appeal. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Nonjudicial punishment is authorized by Article 15 of the UCMJ and governed by the Manual for Courts-Martial (MCM). This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. Accepting the proceedings is simply a choice of forum, not an admission of guilt. It is not a criminal conviction. A member accepting Article 15 proceedings may submit matters to, and have a hearing with the imposing commander. The member may also have a spokesperson at the hearing, may request that witnesses appear and testify and may present evidence. The commander must consider any information offered by the member and must be convinced by reliable evidence that the member committed the offense before imposing punishment. Members who wish to contest the determination or the severity of the punishment may appeal to the next higher commander. The appellate authority may deny the appeal altogether, or remove or modify the Article 15 if they disagree in whole or in part with the action. The commander considering a case for disposition under Article 15 exercises discretion in evaluating the case, both as to whether punishment is warranted and if so, the nature and extent of the punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal, or by the Board absent good cause. The MCM provides for certain relief from punishment, specifically, mitigation, remission, suspension and set aside. A set aside of an Article 15 is the removal of the punishment from the record and the restoration of the service members rights, privileges, pay or property affected by the punishment. Setting aside an Article 15 restores the member to the position held before imposition of the punishment. Set aside should not be routinely granted, rather, it is used strictly in the rare and unusual case where a genuine question about the service member’s guilt arises or where the best interest of the Air Force would be served. The applicant alleges that a security incident report was never accomplished prior to receiving the Article 15. Had it been conducted, the commander would have had more information, like the fact that the operative checklist was not clear regarding the transfer procedures. Additionally, the checklist was not clear regarding the transfer procedures and not posted prior to the incident. It was only made available after the applicant was found guilty of this violation. Upon review of his written appeal, that also highlighted these arguments, the commander denied his appeal. The appellate authority reviewed the appeal and denied it as well. The legal review process showed the commander did not act arbitrarily or capriciously in making this decision. The commander had the best opportunity to evaluate the evidence of the case and found nonjudicial punishment was appropriate. The applicant does not make a compelling argument that the Article 15 should be overturned based on an injustice. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and was within the limits of their authority and discretion. The applicant has not shown a clear error or injustice. The complete AFLOA/JAJM evaluation is at Exhibit B. AFPC/DPSOE defers recommendation to AFLOA/JAJM. The applicant tested for promotion to technical sergeant on 13 March 2012. Once the Article 15 was imposed, he became ineligible for promotion consideration. Based on his date of rank, he will not be eligible for promotion consideration to staff sergeant until cycle 13E5. Should the Board remove the Article 15 and restore his rank to staff sergeant, he would be eligible for supplemental promotion consideration to technical sergeant beginning with cycle 12E6. The complete AFPC/DPSOE evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He was disheartened by the review of his case and concurs the commander acted within her right to issue him an Article 15. Nevertheless, the information that was presented to the commander was misconstrued, tainted and unverified. It painted a false picture of what occurred. He reiterates the facts surrounding the incident and states that he did, in fact, contact a second person prior to the transfer of data. He states that he had not been trained on the transfer procedures prior to arriving on station. He only received verbal instructions and on the job training concerning classified to unclassified transfers. It was after the incident that the office was mandated to have a checklist posted at each terminal. However, the information presented to the commander stated the checklist was posted and that he had received training. He also states the other non-commissioned officer involved only received a letter of counseling for not ensuring he used the entire checklist. He respects the decision of the commander. His does not intend to undermine his commander; however, he knows that commanders should not make decisions with misconstrued, tainted and unverified information. The applicant’s complete response, with attachments, 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took careful notice of the applicant's complete submission, to include his response to the Air Force advisory, in judging the merits of the case; however, we agree with the opinion and recommendation of the Military Justice Division and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. The applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the Military Justice Division. We are not persuaded by the evidence that the action taken by his commander was beyond her scope of authority, inappropriate, or arbitrary and capricious. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought. 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 BCMR Docket Number BC-2012-04267 in Executive Session on 4 April 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-04267 was considered: Exhibit A. DD Form 149, dated 24 Aug 12, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 22 Oct 12. Exhibit C. Letter, APPC/DPSOE, dated 29 Oct 12. Exhibit D. Letter, SAF/MRBR, dated 9 Nov 12. Exhibit E. Letter, Applicant’s Response, dated 4 Dec 12, w/atchs. Panel Chair