RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03699 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His Article 15, under the Uniformed Code of Military Justice (UCMJ), be removed from his records. 2. He be reinstated into the Air Force. 3. Any adverse information regarding his Article 15 be removed from his Unfavorable Information File (UIF), Evaluation Performance Reports (EPRs), and Control Roster. 4. His line number to technical sergeant (TSgt) be reinstated. 5. He be considered for other forms of relief in law and equity as may be applicable due to his 9 years of service and multiple deployments while serving in the Air Force. APPLICANT CONTENDS THAT: In an 11-page brief, the applicant’s counsel makes the following key contentions: His non-judicial punishment did not comply with the legal and evidentiary requirements of the Manual for Court-Martial and the Air Force Instructions. Justice and equity call for him to continue his service based on the unique circumstances of this case. Title 10, Section 1552, is remedial in purpose and should be liberally construed. Counsel refers to Oleson v United States, 172 Ct CI 9 (1965). On 1 May 13, he was ‘indecently’ assaulted while returning to Osan Air Base. He was returning to the base after consuming alcohol at the Songtan Entertainment District (“SED”). Two females began assaulting him in an indecent manner by trying to take his wallet, including his military ID while pulling on his clothes and belt. On 2 May 13, two female Air Force non-commissioned officers (NCO) were interviewed regarding what they observed at the time in question. The NCOs offered to assist him back to his living quarters, he ran and fell, his pants fell down, and he tried to pull them up. The NCO statements were not provided to him and his commander. The applicant did not know that the statements existed until 3 Jun 13, almost two weeks after his imposing commander had administered the Article 15. On 8 May 13, he made a restricted reporting of sexual assault and was counseled by the Sexual Assault Response Coordinator. He also met with the Military Life Family Consultant. On 14 May 13, he was notified by his commander of his intent to impose non-judicial punishment under Article 15, UMCJ, for intentionally exposing himself at the SED on or about 1 May 13, which was a violation under Articles 120 (indecent exposure) and 134 (drunk and disorderly conduct). On 16 May 13, through counsel, he responded to the Article 15 by stating that while he took responsibility for placing himself in the situation where he essentially became a target of opportunity, he was assaulted by two attackers. His belt buckle was broken and his pants fell down because of the assault. As a victim, it was very difficult for him to address what happened; therefore, he invoked his victim rights and to maintain privacy. On 20 May 13, he enrolled in the mandatory Alcohol and Drug Abuse Prevention & Treatment (ADAPT). On 21 May 13, he was found guilty of violating Articles 120 and 134. He was reprimanded for intentionally exposing his genitals. He was reduced to the grade of senior airman, suspended through 20 Nov 13, after which time it would be remitted, unless sooner vacated, and ordered to pay forfeitures of $1,2011.00 for two months. In addition, he was restricted to Osan Air Base for 60 days and reprimanded for ‘… foolish decision to intentionally expose [his] genitals….’ The two statements were not provided to him, his commander, or his counsel, which contradicted the finding of guilty of intentional exposure. One witness statement stated, “Once we got around corner Member fell flat on his face on the corner of road. He proceeded to get up and his pants fell down and was naked…” The other witness stated, “Sherri and I took off after him when he turned the corner he was face down, and his bare butt was in the air. We got him up, his pants up (he pulled them) and he took off running again….” The two statements directly contradict the allegation of intentional exposure. Further, the police report did not indicate any intentional exposure. On 28 May 13, he appealed the Article 15 by submitting another statement revealing that he was indecently assaulted by two females while approaching the military base and that he made a sexual assault report. On 3 Jun 13, an email communication announced that since there was a report of sexual assault, an additional investigation was conducted and new evidence was discovered. The new evidence pertained to the two statements made by two female NCOs back on 2 May 2013. On 13 June 2013, the Air Force declared Songtan Entertainment District off-limits for 18 hours a day to all airmen. The installation commander, as reported by Stars and Stripes, determined that "This action is necessary to ensure the safety and welfare of military and civilian personnel and family members, and to avert incidents and provocations detrimental to the alliance between the United States and Republic of Korea." On 17 June 2013, the applicant was notified that he was placed on the Date of Separation (DOS) Rollback list. The deadline for placing Airmen on the list was 21 June 2013. On 18 June 2013, his commander denied his reenlistment. On 27 June 2013, he appealed his denial of re-enlistment, which highlighted the evidentiary problems with the Article 15. In this respect, AF Form 418 states that the applicant was drunk and disorderly; however, the evidence supporting this conclusion was based on the allegation of the intentional exposure. He has shown that two individuals indecently assaulted him, which in turn caused his belt to malfunction and his pants to fall down. Two witnesses observed that when his pants fell down, he pull them up. On 25 July 2013, pursuant to AFI 51-202, he requested to invalidate the Article 15 due to procedural and evidentiary errors. The Article 15 does not meet the legal requirements of the Manual for Courts-Martial and AFI 51-202. Manual for Courts-Martial, 2012 edition, Part V states that: "Any relevant matter may be considered, after compliance with paragraphs 4c(1){C) and (0) of this Part' in deciding a punishment under Article 15. Military Rule of Evidence 401 states that "'relevant evidence' is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." As of the date of this petition, no response has been received. Additionally, paragraph 4c(1)(C) states, that each Service member requesting a hearing has a right to: Be informed orally or in writing of the information against the service member and relating to the offenses alleged; Paragraph 4c(1)(D) states: Be allowed to examine documents or physical objects against the member which the non-judicial punishment authority has examined in connection with the case and on which the non-judicial punishment authority intends to rely in deciding whether and how much non-judicial punishment to impose.” He was not afforded meaningful right to counsel because he was not provided all evidence required to respond to the Article 15. The right to counsel does not mean much if counsel cannot examine all relevant documentation. In fact, after the statements were presented to the appellate authority, he found no violation of Article 120. The adverse language regarding the intentional exposure in the reprimand was never removed even though it relates to the indecent exposure (Article 120) and being drunk and disorderly (Article 134). When the applicant asked to remove this language, he was told that it was not going to be removed, which violates Part V of the Manual for Courts-Martial because the evidence does not support the charges. The Article 15 proceedings should have been returned to the commander so he could make a fair decision after a thorough review. AFI 51-202, paragraph 3.5, states that the applicant had the right to examine all statements and evidence upon which his commander intended to rely in arriving at a decision to impose punishment, unless the matters are privileged or restricted by law, regulation, or instruction. His commander was never presented with the two statements by the two NCOs. Since his commander was never presented with the additional evidence, he had no opportunity to decide if he was going to consider the two statements. Any commander would normally consider such statements during Article 15 proceedings because they were relevant and clearly showed that any exposure was due to the pants falling down which in turn was caused by the assault. Commanders who made critical decisions on non-judicial punishment must have all evidence to make the right and fair decision. This case offers no exceptions of privilege or legal prohibitions where the evidence would not have to be turned over to him. Therefore, the Article 15 violates AFI 51-202. This is a substantial error because the applicant was provided with incomplete evidence, his commander could not make a fair and thorough decision on the appropriate punishment, and his right to counsel was denied because his counsel could not advise him based on all the evidence that should have been considered by the commander. He did not receive due process under the DOS Rollback. In this respect, the Air Force used the wrong form to process his separation. The Fiscal Year 2013 (FY13) Enlisted DOS Rollback (Phase II) Program states, "(NOTE: Ensure the current version dated 10 Jul 11 of the AF Form 418 is used)" He received AF Form 418 on 20 Jul 11 [sic]. The FY13 Enlisted DOS Rollback (Phase II) Program is dated 7 June 2013. On its face, the form is incorrect. It is possible that someone who prepared the FY13 Enlisted DOS Rollback (Phase II) Program attachment had a typo. However, he should not be separated by using an incorrect form. The cutoff period for DOS Rollback was 21 June 2013. Since the chain of command failed to meet this deadline because it did not follow proper rules and procedures, he must be allowed to continue his service. The applicant did not receive the supporting documentation for AF Form 418. FY13 Enlisted DOS Rollback (Phase II) Program states in paragraph 2.7.1.5 that each Airman facing Rollback will be provided with a copy of the AF Form 418 and supporting documentation. If the supporting documentation is based on the improper Article 15, including language indicating that he intentionally exposed himself, then this results in incorrect military records and it is just and proper to correct it. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 21 May 13, the applicant’s commander rendered him an Article 15 for violating Articles 120 and 134 of the UCMJ. Specifically, on or about 1 May 13, he was drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces for which he received a reduction in grade to the grade of senior airman, suspended thorough 20 Nov 13, after which time it was remitted without further action, forfeited $1,201.00 pay per month for two months, and was restricted to Osan Air Base for 60 days. On 6 Jun 13, his commander reversed his decision on violating Article 120 (indecent exposure charge) and removed this charge from the Article 15. On 20 Sep 13, the applicant was furnished an honorable discharge, and was credited with 10 years and 5 days of active service. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility, which is attached at Exhibit C, D, E, F, and G. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Please note that the applicant makes several requests regarding his military service which are not military justice matters; therefore, JAJM is only providing analysis and recommendations on the Article 15 process. The applicant's squadron commander offered the applicant nonjudicial punishment under Article 15 for alleged drunk and disorderly conduct on or about 1 May 2013, in violation of Article 134, UCMJ, and indecent exposure, in violation of Article 120c, UCMJ. After consulting with counsel, the applicant waived his right to court-martial, accepted nonjudicial punishment proceedings, and submitted a written presentation. After considering the available evidence and the applicant's written presentation, the squadron commander found that the applicant committed the charged offenses. On 3 June 2013, the Chief of Adverse Actions at Osan AB wrote to the applicant's counsel explaining that allegations the applicant had been sexually assaulted prompted further investigation, which produced two relevant witness statements. The additional evidence was provided to defense counsel. On 6 June 2013, after reviewing these additional statements, the squadron commander reversed his decision on the indecent exposure charge, but still found the applicant guilty of being drunk and disorderly. In this case, the applicant was accused of pulling down his pants in public intentionally exposing his genitals and drunk and disorderly conduct. Two individuals provided statements that supported the applicant's contention that he did not intentionally expose himself. These statements were not provided to the squadron commander, the applicant, or the applicant's counsel at the time the applicant accepted Article 15 proceedings or when the squadron commander made his initial decision. However, these statements were provided to all parties at the time of the applicant's appeal. The group commander, the Article 15 appellate authority, after considering all the evidence denied the applicant's appeal. Both the squadron commander and group commander had the best opportunity to evaluate the evidence for this action. With that perspective, these commanders exercised their discretion that the applicant granted when the applicant accepted the Article 15 and found nonjudicial punishment appropriate. The legal review process showed that neither the squadron commander nor group commander acted arbitrarily or capriciously in making the nonjudicial punishment decisions. The applicant does not make a compelling argument that the Board should overturn the commander's nonjudicial punishment decision based on injustice. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSIM recommends denial. On 21 May 13, the commander imposed nonjudicial punishment and the applicant acknowledged receipt. IAW AFI 51-202, Nonjudicial Punishment, following full and fair consideration of the evidence, including any matters presented by the member, the commander indicates the member committed one or more of the offenses alleged and impose punishment as listed in Item 14 of the AF Form 3070A, Record of Nonjudicial Punishment Proceedings. The commander lines out and initials any offense(s) for which NJP is not appropriate or which the member did not commit. If the member committed one or more lesser included offenses, the commander consults with the Staff Judge Advocate before changing an alleged offense to a lesser included offense. DPSIM cannot speak to whether or not the commander's actions were just or not; at most, they can only discuss if proper procedures were followed in the administration of the action. After careful review, they determined the evidence presents only minor discrepancies that have no bearing on the administrative action itself. The complete AFPC/DPSIM evaluation is at Exhibit D. AFPC/DPSID does not provide a recommendation. The Evaluation Procedures and Appeals office reviewed the applicant's request and determined that there is no action required by their office. In this respect, the applicant's 2013 Enlisted Performance Report (EPR) pertaining to the mention of the Article 15 was never processed nor made a matter of record; therefore, there is no report to contend. The applicant separated on 20 Sep 13; since this would have been the applicant's last report on active duty, it is probable that the report was rendered optional by the rating officials. IAW AFI 36- 2406, paragraph 3.4.8 states: When the criteria under retirement or separation are met, an annual evaluation becomes optional. Paragraph 3.4.10. states that personnel with an approved separation date, provided the following criteria are met: The enlisted member's approved separation is not a result of discharge action under AFI 36-3208, paragraph 6.4, and the Date of Separation (DOS) is within one year of the projected annual close-out date, the separation was approved prior to the projected annual close-out date, and the ratee is not being released from active duty to the Reserves (AD or non-AD) or another service, then no evaluation is required. The complete DPSID evaluation is at Exhibit E. AFPC/DPSOE does not provide a recommendation regarding the applicant’s request to have his line number to technical sergeant reinstated. After thoroughly reviewing the applicant's weighted airman promotion system (WAPS) record reflects that he has never been selected for promotion to TSgt. Based on his date of rank (DOR) to SSgt, the applicant was considered and non-selected twice for promotion to TSgt prior to his discharge on 20 Sep 13. The first time the applicant was considered for promotion to TSgt was cycle 12E6, his total score was 310.78 and the score required for selection in his AFSC was 312.33. The second time he was considered for promotion to TSgt was cycle 13E6, his total score was 333.53 and the score required for selection in his AFSC was 335.43. The complete DPSOE evaluation is at Exhibit F. AFPC/DPSOR recommends denying the applicant’s request to be reinstated into the Air Force. The applicant was separated under the FY13 Force Management Program with an RE code of 2X, first-term, second term or career airman was considered but not selected for reenlistment under the Selective Reenlistment Program (SRP). Based upon the applicant's denial of reenlistment, he was separated with a Separation Code of "LGH", Non-retention on active duty, which was properly reflected on his DD Form 214. Based on the commander's non- recommendation for retention, the applicant was released from active duty and given an honorable discharge characterization of service. This characterization is correct as indicated on the applicant's DD Form 214. The complete DPSOR evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a 3-page rebuttal, the applicant’s counsel reiterates his original contentions and adds the following comments: An Article 15 is corrective in nature; its purpose is to empower commanders with prompt means of promoting good behavior changes and is imposed for minor offenses. “Whether an offense is minor depends on several factors: the nature of the offense and the circumstances surrounding its commission; the offender’s age, rank, duty assignment, record and experience; and the maximum sentence imposable for the offense if tried by general court martial.” MCM, Part V, para 1e. This is unlike any other case, where an airmen is drunk and yells on base. This is a case of a victim of an indent [sic] assault, who runs at night and falls because the assailants removed his belt from his pants; he continues in an effort of escaping. The commander who recognized that there was no violation of an Article 120, realized that the accidental exposure was the result of the assault. However, running and tripping on base following the assault because of the falling pants is also the result of the assault. Thus, in the interest of fairness and justice, this victim should not be victimized again with another punishment. Prior to the assault, the applicant was walking without any issues by himself to the base. After the assault, his clothes were in disarray, his belt removed, he felt pursued, and continued to run and fall in the middle of the night. The unique facts of this case, coupled with his reporting, and the commander reversing the Article 120 charge, warrants granting the requested relief. Article 134 has the following elements: The accused was drunk, disorderly, or drunk and disorderly on board ship or in some other place; that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit in the armed forces. In addition, the burden of proving the Article 134 violation is on the Government. Here, the investigation failed to prove that the conduct in question was ‘service discrediting.’ This is because reactions of victims of an assault are not service discrediting. How can running, falling, and running again be discrediting the service when we know that the victim believes that he is pursued by the attackers on a military base immediately following the assault off base at night. The applicant’s rebuttal is at Exhibit I. 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 regarding the applicant’s requests to have his Article 15 removed from his records, to be reinstated into the Air Force, to remove adverse information from his official personnel documents, and to reinstate his line number for promotion to technical sergeant. We took notice of the arguments raised by the applicant’s counsel; however, after a thorough review of the complete evidence of record and the applicant’s submission, 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 error or injustice. While we acknowledge there appear to have been errors made in the administration of the article 15, we are satisfied they were harmless error that did not deprive the applicant of fair and equitable due process. As such we find no basis to substitute our judgment for that of the commander and appeal authority that were in the best position to determine the weight and relevance of the evidence considered. In our view the evidence does not support that the commander and appeal authority’s actions were arbitrary and capricious. In the absence of persuasive evidence to the contrary, we find no compelling basis upon which to recommend granting any of 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-03699 in Executive Session on 18 Nov 14 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence for AFBCMR Docket Number BC- 2013-03699 was considered: Exhibit A. DD Form 149, dated 26 Jul 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 17 Sep 13. Exhibit D. Letter, AFPC/DPSIM, dated 13 Dec 13. Exhibit E. Letter, AFPC/DPSID, dated 8 Aug 14. Exhibit F. letter, AFPC/DPSOE, dated, 22 Aug 14. Exhibit G. Letter, AFPC/DPSOR, dated, 15 Sep 14. Exhibit H. Letter, SAF/MRBR, dated 19 Sep 14. Exhibit I. Letter, Applicant’s Counsel, dated 18 Oct 14.