RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01056 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Article 15 and Unfavorable Information File (UIF) be removed from his record and that his rank be restored. APPLICANT CONTENDS THAT: He received an Article 15 in violation of the Uniformed Code of Military Justice (UCMJ) for violating Article 113 (sleeping on post) for which he was reduced in rank to airman, with the reduction below airman first class suspended for six months. He believes punishment was too harsh given he provided adequate proof that he was not asleep. His flight chief annotated on the AF Form 1168, Statement of Suspect/Witness/Complainant, that he found him asleep on post on 17 Oct 13 at 0403 hours, local. He subsequently provided proof showing he was not asleep; but on a phone call with his BDOC controller at 0403 local. Though he provided a statement from the BDOC controller stating such, he was still found guilty under Non-Judicial Punishment (NJP) proceedings. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 Aug 07, the applicant enlisted in the Regular Air Force. He was progressively promoted to the grade of Senior Airman (SrA) and is currently serving on active duty. On 8 Sep 08, he signed a notification from his commander that he was considering NJP proceedings under Article 15 of the UCMJ for sleeping on post. On 16 Sep 08, his commander advised that the Article 15 would be filed in his UIF. He was reduced to the grade of airman with a new date of rank of 10 Sep 08. On 9 Apr 09, he was notified his rater was giving him a referral Enlisted Performance Report (EPR) based on receiving an Article 15 for sleeping on post. He acknowledged receipt that same day. On 29 Oct 13, he signed another notification from his commander that he was considering NJP proceedings under Article 15 of the UCMJ for sleeping on post. He was reduced in grade to airman (E-2) with reduction below airman first class (E-3) suspended until 28 Apr 14. His new date of rank for airman first class is 29 Oct 13. On 4 Nov 13, the applicant submitted an appeal in writing. On 6 Nov 13, his commander denied his appeal and stated that the information would go in his UIF. On 14 Nov 13, he acknowledged receipt. On 13 Dec 13, he was notified his rater was giving him a referral EPR based on receiving an Article 15 for sleeping on post. He acknowledged receipt that same day. On 17 Dec 13, he submitted a written response to his rater for the referral EPR. He acknowledged failing to perform or meet the standards of a posted sentinel and that it was a strong failure on his part. AIR FORCE EVALUATION: AFLOA/JAJM recommends the Board not grant the relief sought regarding the Article 15 because there was no error or injustice with the process. On 17 Oct 13, the applicant allegedly was found sleeping upon his post, in violation of Article 113, UCMJ. He was reduced in grade from E-4 to E-2, with reduction below E- 3 suspended until 28 Apr 14. He was also reprimanded. The applicant appealed, which was denied on 12 Nov 13 and the information was placed in a UIF. While the applicant provided what he believed to be adequate proof of his innocence, the commander decided he had committed the offense. NJP is authorized by Article 15, UCMJ (10 U.S.C. § 815), and is governed by the Manual for Courts-Martial (Part V) and AFI 51- 202, Nonjudicial Punishment. It allows 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; it is not an admission of guilt. NJP is also not, when imposed, a criminal conviction. A commander considering a case for disposition under Article 15 exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extent of punishment. AFLOA/JAJM cannot find good cause to reverse or otherwise change the commander’s decision that in spite of the evidence of the phone call, the applicant was sleeping on post at some point during the time alleged. The complete JAJM evaluation is at Exhibit C. AFPC/DPSIM recommends denial of the applicant’s request to remove the NJP and the UIF. The applicant received NJP on 21 Oct 13 for sleeping on his post. He acknowledged receipt and provided a written response on 25 Oct 13. On 29 Oct 13, the commander imposed NJP and he acknowledged receipt that day. The applicant submitted in writing on 4 Nov 13, that he made the decision to appeal. On 6 Nov 13, his commander denied the appeal and on 12 Nov 13, the appeal authority denied the appeal. The applicant acknowledged the appeal denial on 14 Nov 13. He had provided a witness statement that corroborated his statement that he was on his phone at 0403 with the BDOC, and not sleeping as alleged by his flight chief. After careful review, it was determined the evidence presented was completed properly and correct procedures were followed to administer punishment. The complete DPSIM evaluation is at Exhibit D. AFPC/DPSOE recommends the denial of the applicant’s request to remove the Article 15. Based on AFLOA/JAJM’s decision, they also recommend denial of the applicant’s request for restoration of his rank to SrA. DPSOE states there were no legal errors requiring corrective action regarding the non-judicial process. The applicant was administered an Article 15 on 29 Oct 13 for being asleep on post. His punishment consisted of a reprimand as well as reduction from the grade of SrA to Amn, with reduction below A1C suspended until 28 Apr 14. He will not be eligible for promotion consideration to the grade of SrA until he has time-in-grade of 20 months and an EPR that is not a referral. The complete DPSOE evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 1 Aug 14 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. 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 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 (OPRs) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Nov 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 14 May 14. Exhibit D. Memorandum, AFPC/DPSIM, dated 19 Jun 14. Exhibit E. Memorandum, AFPC/DPSOE, dated 19 Jul 14. Exhibit F. Letter, SAF/MRBR, dated 1 Aug 14.