,t  ADDENDUM TO 
RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
DOCKET NUMBER:  97-00268 
COUNSEL:  None 
HEARING DESIRED:  NO 

J U L 3 1 r n  

RESUME OF CASE: 
In an application dated 22 January 1997, applicant requested all 
record of nonjudicial punishment under Article 15 be removed from 
his  records,  restitution  of  $894.00  in  military  pay  and 
authorization to resubmit a DECOR-6 for award of the Air  Force 
Commendation Medal  (AFCM) . 
On 20 January 1998, the Board considered and denied applicant's 
request. 
A  complete  copy  of  the  Record  of  Proceedings  is 
attached at Exhibit G. 
Applicant  submitted additional information on 27 April  1998 and 
requested reconsideration of  his application  (Exhibit H) .  The 
request  for reconsideration was approved and  his case has been 
reopened. 

BOARD CONCLUDES THAT: 
The  applicant  is  requesting  the  nonjudicial punishment  be  set 
-aside with  restitution  of  $894.00  pay  and  authorization  to 
resubmit a DECOR-6 for award of the AFCM.  However, after again 
thoroughly reviewing applicant's record, we  find no basis  upon 
which  to  disturb  the  earlier  decision.  As  was  noted  in  the 
original application, the Report of  Investigation supported the 
commander's  decision. 
The  punishment  was  well  within  legal 
parameters  and  we  do  not  find  it  an  abuse  of  the  commanderrs 
discretionary  authority. 
The  letter  submitted  from  the 
applicant's brother is duly noted; however, we do not find this 
sufficiently persuasive to override the rationale provided by the 
Air  Force.  We  find  that  applicant  has  failed  to  sustain  his 
burden  of  establishing  the  existence of  either an  error or an 
injustice warranting favorable action on his requests. 

THE BOARD DETERMINES THAT: 
The  applicant be  notified  that  the  evidence presented  did  not 
demonstrhte  the  existence  of  probable  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  1 June  1998,  under  the  provisions of  AFI 
36-2603 : 

Mr. Vaughn E. Schlunz, Panel Chair 
Mr. Gerald B. Kauvar, Member 
Mr. Gregory H. Petkoff, Member 
Mrs. Kay Byrne, Examiner (without vote) 

The following documentary evidence was considered: 

Exhibit G.  Record of Proceedings, dated 10 Mar 98, 
Exhibit H.  Applicant's Letter, 

with atchs. 

dated 27 Apr 98, with atchs. 

Panel Chair 

v 

' C  

2 

AFBCMR 97-00268 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-00268 
COUNSEL:  None 
HEARING DESIRED:  No 

MAR  1 0 19% 

APPLICANT REQUESTS THAT: 
1.  The nonjudicial punishment imposed on him under Article 15, 
on 21 June 1995 be removed from his records with restitution of 
$894.00 in military pay. 

Authorization to resubmit a DECOR-6 request for award of the 

2. 
Air Force Commendation Medal  (AFCM) . 

APPLICANT CONTENDS THAT: 
He  was  wrongfully accused of violating Article  92,  Failure  to 
obey a lawful order, and wrongfully punished under Article 15 of 
misconduct  by  his  appointed  counsel  during  pre  and  post 
the  Uniform  Code  of  Military  Justice  (UCMJ). 
There  was 
imposition of  the  nonjudicial punishment  action.  His  initial 
intent was to demand  trial by  court-martial, request to make  a 
personal appearance and not attach a written presentation.  His 
counsel  advised  him  to  withdraw  his  intention to  appeal.  He 
later found out that this was a big mistake and he had been ill- 
advised by his counsel. 
In support of his request, he submitted a statement with copies 
of  the  pre-nonjudicial  punishment  incidents,  a  copy  of  the 
Article  15,  a  copy  of  the  first  Article  15  showing  his 
intentions, and a copy of the Report of Investigation. 
Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 
The applicant is currently serving in the Regular Air  Force  in 
the grade of technical sergeant (E-7). 
On  19 June  1995,  applicant  was  notified  of  his  commanderls 
intent to impose nonjudicial punishment upon him for:  You, who 
knew of your duties not to establish or maintain social contacts 
service  to  any 
with  or  offer  to  give  any  article, 
between  on or 
prison&/ 
detainee, in  the  state of 

L 

about 28 May 1995 and on or  about 29 May 1995, were derelict in 
the performance  of  those duties  in  that  you willfully  took  a 
in your car and accompanied 2 former 
former priso 
amusement park, as it was your duty 
prisoners at 
not to do. 
On 19 June 1995, after consulting with counsel, applicant waived 
his  right  to  trial  by  court-martial,  requested  a  personal 
appearance and submitted a written presentation. 
On  21 June  1995,  he  was  found  guilty  by  his  commander  who 
imposed the following punishment: 
On 21 June 1995, applicant stated he would appeal the punishment 
and he submitted matters in his own defense.  However, on that 
same date, he withdrew his decision to appeal.  The Article  15 
was not placed in an unfavorable information file (UIF). 

Forfeiture of $894.09 pay. 

- 

AIR FORCE  EVALUATION: 
reviewed  the 
The  Military  Justice  Division,  AFLSA/J?iJM, 
application and noted that the applicant is contending that the 
basis used  for his Article  15 was  legally insufficient.  They 
noted that while the investigation into the applicant's alleged 
dereliction  of  duty  could  have  been  more  thorough,  it 
nonetheless provided the commander with enough evidence to form 
the  basis  of  his  opinion. 
The  commander's  decision  was 
reasonably supported by  the evidence contained in the Report of 
Investigation.  The punishment was well within legal parameters 
and  suggested  that  the  commander  was  sensitive  to  the 
applicant's position and somewhat conflicting testimonies.  The 
applicant  consulted with  counsel  and  continued  to  communicate 
throughout  the  entire  nonjudicial  process.  Additionally, the 
applicant  could  have  refused  to  accept  the  Article  15  and 
demanded  trial  by  court-martial  or  appealed  his  commander I  s 
findings or punishment.  The decision to award or not award the 
applicant a Commendation Medal is clearly within the commander's 
discretion and not  a proper matter  for the Board  to consider. 
After  a review of  the  available records, JAJM  concluded  there 
are no legal errors requiring corrective action and granting the 
applicant's request is not warranted. 
A  complete copy of the evaluation is attached at Exhibit C. 
The  Recognition  Programs  Branch,  AFPC/DPPPRA,  reviewed  the 
application  and  stated  that  decorations  cannot  be  awarded  or 
presented  to  any  person  whose  entire  service  for  the  period 
covered  has  not  been  honorable.  The  applicant  received  the 
Article  15  during  the  period  in  question.  This  renders  him 
ineligible  for  a  decoration. 
They  recommend  denial  of  his 
re qu e s t !!. 

2 

AFBCMR 97-00268 

- 

A complete copy of the evaluation is attached at Exhibit D. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
The applicant reviewed the evaluation and responded that there 
appears  to be  several  administrative  errors  in  the Air  Force 
evaluation  from  JAJM.  Only  three  of  the  four  staff  members 
statements  refers  to  the  allegation  that  they  overheard  his 
admitting to accompanying former prisoners to an amusement park. 
Out  of  the  five  prisoners  sitting  at  the  table  to  whom  he 
allegedly made such statements, only one stated that he recalled 
the applicant making such comments. 
In the summation portion of JAJM evaluation it is stated that at 
the time he was notified of impending nonjudicial punishment, he 
could have refused to accept the Article  15 and demanded trial 
by  court -martial  or  appealed  the  commander' s  findings  or 
punishment.  To  this  he  refers  to  the AF  Form  3070, Block  5 
showing  that  he  initialed  the  block  that  states  he  demanded 
trial  by  court-martial.  His  commander  asked  that  he  consult 
with  counsel  again  and  it  was  his  counsel's  advice  that  he 
accept  the  Article  15  proceedings. 
After  punishment  was 
imposed, he  elected to  immediately appeal, and  again was  ill- 
advised by counsel to not appeal at that time.  This is noted on 
AF Form 3070, Block 9. 
He submitted an AF Form 1168, Statement of Witness Complainant, 
signed by his former roommate.  The statement this roommate had 
wrote  concerning  him  in  June  1995  had  an  impact  on  their 
friendship  and  situation  as  roommates.  They  terminated  the 
lease  at  the  end  of  the  month.  In March  1997, without  the 
roommate knowing he had received an Article 15, he contacted her 
and  asked  her  to  submit  a  statement  concerning  what  had 
happened. He believes the statement in 1995 was used in the ROI 
to  appear  that  the  roommate  validated  that  he  and  a  former 
prisoner were  in attendance at  the picnic together and that he 
would  not  have  left  the  former prisoner  in  the  car while  he 
attended  the  picnic.  There  is  not  one  shred  of  evidence  to 
support  the  alleged  statement  he  had  been  accused  of  making 
stating  that  he  had  accompanied  two  former  prisoners  to  an 
amusement  park.  The  investigator needed  something  to  support 
her findings in the ROI. 
He  attached  an  Oil  Change  Receipt  showing  that  his  personal 
vehicle was in poor working condition and  was in need of  major 
mechanical  repairs.  This corroborates the  facts as  to  why  he 
employed the use of a rental vehicle to travel to visit an older 
brother and elected not to use his privately owned vehicle. 
In conGlusion, if JAJM  had not reviewed his packet hap hazardly 
withouf! reading  all  the  specifics,  or  paying  attention  to 
detail,  items  overlooked,  not 
thoroughly  evaluated  and 

3 

AFBCMR 97-00268 

considered, undoubtedly  played  a  strong  role  in  assisting  to 
form  the  basis  for  their  opinion.  His  commander  based  his 
decision on one statement that allegedly provided  some support 
to the summary in the ROI.  He gave no weight to the fact that 
the  miles  on  the  rental  car  did  not 
to  support  the 
allegation made that he d 
-to an amusement 
park over 400  miles away 
The commander 
did  not  consider  that  he  proved  his  whereabouts  and  had 
witnesses to  support that  fact on the day of  the picnic.  He 
states he cannot begin to express what a devastating toll this 
action has  had  upon  him  mentally  and  professionally.  He  has 
been denied key Special Duty assignments, diagnosed with a mild 
form  of  depression,  and  suffered  from  insomnia. 
Since  the 
incident, over a year and  a half, he  has  had  to  endure  many 
trying  times  simply  as a result of  the Article  15.  If  this 
situation is not corrected soon, it will have an affect on his 
next  promotion  opportunity.  He  is  not  bitter  but  is  truly 
saddened by  this incident and  has been changed as a result of 
it.  He is believing in this system to reach a decision that is 
supported by all  the evidence presented.  He now sees that he 
never  ever  at  any  time  committed  the  charge  of  disobeying  a 
lawful order or was derelict in the performance of  his duties 
during his entire tour at the NAVCONBRIG Miramar. 
His complete response it attached at Exhibit F. 

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 probable error or injustice.  After 
a  thorough  review of  the  evidence, the  majority  of  the  Board 
finds  no  persuasive  evidence  that  the  Article  15  should  be 
removed  from  the  applicant's  records.  The  commander  had  the 
discretionary  authority  to  impose  nonjudicial punishment  under 
Article  15, UCMJ,  when he  concluded that  the  reliable evidence 
existed  to  prove  an  offense  was  committed. 
The  Report  of 
Investigation reasonably  supported this decision.  It  was  also 
noted  that  when  offered  the  Article  15,  applicant  had  an 
opportunity  to  establish  his  innocence  by  demanding  trial  by 
court-martial.  However, he apparently chose not  to pursue  this 
avenue and accepted the Article 15.  We note the assertion that 
his counsel misadvised him when he withdrew his demand for trial 
by  court-martial.  However, other  than his own self-supporting 
statement, he proffers no corroborative evidence in this regard. 
Therefore,  in  the  absence  of  substantiating  evidence  to  the 
contrary,, the majority  believes  that  the  applicant voluntarily 

4 

AFBCMR 97-00268 

withdrew his demand for a court-martial.  Thus the majority finds 
no basis to set aside the Article 15. 
4.  The  applicant's request  to  resubmit  a DECOR-6  request  for 
award  of  the  Air  Force  Commendation Medal  cannot  be  granted. 
Decorations cannot be  awarded or presented to any person whose 
entire  service for the period  covered has not  been  honorable. 
He  is  ineligible  for  this  award  with  the  Article  15  in  his 
records. 

RECOMMENDATION OF THE BOARD: 
A majority of the panel finds insufficient evidence of error or 
injustice and recommends the application be denied. 

- 

The following members of the Board considered this application 
in Executive Session on 20 January 1998, under the provisions of 
AFI 36-2603: 

Mr. Vaughn E. Schlunz, Panel Chair 
Mr. Gerald B. Kauvar, Member 
Mr. Gregory H. Petkoff , Member 
Mrs. Kay Byrne, Examiner (without vote) 

By a majority vote, the members voted to deny the request.  Mr. 
Petkoff voted to correct the record and did not desire to submit 
a  minority  report. 
The  following  documentary  evidence  was 
considered: 

DD Form 149, dated 22 Jan 97 with atchs. 
Applicant's Master Personnel Records. 
Letter, AFLSA/JAJM, dated 12 Feb 97. 
Letter, AFPC/DPPPRA, dated 6 Mar 97. 
Letter, AFBCMR, dated 24 Mar 97. 
Applicant's Letter, dated 14 Apr 97. 

d&E:J!$f 

Panel Chair 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 

I 

I 

5 

AFBCMR 97-00268 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 97-00268 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 
FOR CORRECTION OF MILITARY RECORDS (AFBCMR) 

I have carehlly reviewed the evidence of record and the recommendation of the Board 
members.  A majority found that applicant had not provided substantial evidence of error or 
injustice and recommended the case be denied.  I concur with that finding and their conclusion 
that relief is not warranted.  Accordingly, I accept their recommendation that the application be 
denied. 

Please advise the applicant accordingly. 

/ Director 

Air Force Review Boards Agency