DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Jt]i'\j 11 1998 

Office of the Assistant Secretary 
AFBCMR 97-01791 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 

of Military Records and under the authority of Section 1552, Title 10, United States Code (70A 
Stat 116), it is directed that: 

i 

cords of the Department of the Air Force relating to 
corrected to show that, on 21 Feb 97, competent auth 
ed 
punishment imposed under the provisions of Article 15, UCMJ, on 
25 Nov 96, pertaining to forfeiture of pay, to provide for forfeiture of $375.00 per month for two 

months, rather than $500.00 for two months. k k  

Y Air Force Review Boards Agency 

Director 

.  INEBERGE 

U 

. 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

JUN  11 1998 

DOCKET NUMBER:  97-01791 - 

COUNSEL:  NONE 
HEARING DESIRED:  YES 

APPLICANT REOUESTS THAT: 
The  nonjudicial  punishment  under  Article  15  initiated  on 
15 Oct 96 and imposed on 25 Nov 96 be set aside and removed from 
his records, and that all rights, privileges, and benefits taken 
from him because of the Article 15 be restored. 

APPLICANT CONTENDS THAT: 

He  was  innocent of  the  charged  offenses because  they were  not 
done  intentionally  and  the  evidence  used  against  him  was 
insufficient to establish his guilt. 

The  mitigated  punishment  was  more  severe  than  his  initial 
punishment and, therefore, was illegal. 

In  support of  his  appeal, the  applicant provided  documentation 
pertaining  to  the  nonjudicial punishment  under Article  15, and 
other documents associated with the matter under review. 

Applicant's complete submission is at Exhibit A. 

STATEMENT OF FACTS: 
Information extracted from the Personnel Data System (PDS) system 
indicates that the applicant is currently serving on active duty 
in the grade of master sergeant. 
On 15 Oct 96, the applicant's commander notified him that he was 
considering  whether  he  should  be  punished  under  Article  15, 
Uniform Code of Military Justice  (UCMJ) based on allegations that 
the applicant did, on or about  6 Jun 96, unlawfully strike J--- 
B---  on the right leg and hip with his vehicle; did, on or about 
6 Jun 96, unlawfully strike K---  B---  on the right leg and hip 
with his vehicle; and that he  did, on or about  7 Jun 96, cause 
his  daughter unjustifiable mental  suffering as a  result  of  his 

neglect, and put her into a situation where she may have suffered 
as a result of  his neglect.  (The last charge was  subsequently 
withdrawn.)  The  applicant  was  advised  of  his  rights  in  the 
matter.  After  consulting military  legal counsel, the applicant 
waived  his  right  to demand  trial by  court-martial and accepted 
the  nonjudicial  proceedings  under  Article  15.  He  submitted 
written comments for review and indicated that he did desire to 
make a personal appearance before the commander.  On 25 Nov  96, 
after  considering  the  matters  presented  by  the  applicant, the 
commander found that the applicant had committed one or more of 
the  offenses  alleged  and  imposed  punishment. 
The  applicant 
received a suspended reduction from master sergeanlt to technical 
sergeant until 24 May 97, and was ordered to forfeit $985.00 per 
month for two months and was reprimanded.  The applicant appealed 
the punishment.  On 21 Feb 9 7 ,   the appellate autholrity partially 
granted the applicant's appeal and mitigated his punishment to a 
suspended reduction from master  sergeant to technical  sergeant, 
forfeitures of  $500.00 per month for two months, 30'  days extra 
duty, 30 days restriction, and a reprimand.  On 3  Mar 97, legal 
authority found that the nonjudicial proceedings under Article 15 
were legally sufficient. 

AIR FORCE EVALUATION: 

The  Military  Justice  Division,  AFLSA/JAJM,  reviewed  this 
application and  indicated that  the applicant's initial and less 
compelling contention is that the evidence used against him was 
insufficient to establish his guilt.  The applicant claimed the 
witnesses' statements were  inconsistent  and  that  he  lacked the 
intent to commit the charged assaults.  The evidence relied upon 
by  the applicant's commander to  support his decision to punish 
him under Article 15, UCMJ, consisted of the ,sworn statements of 
five witnesses.  All  five of these witnesses essentially stated 
that the applicant struck both J ---  B---  and K - - -  B---  with his 
truck and then drove away.  The only evidence which contradicted 
their version of the facts is the self-serving statement of the 
applicant and  his wife.  In his  statement, the applicant never 
said  his  vehicle  did  not  hit  J---  or  K---. 
Instead,  the 
applicant stated he did not see his vehicle strike either woman 
and if it did, it was unintentional.  This is hardly the type of 
compelling evidence necessary to overcome the swora testimony of 
five eyewitnesses.  Further, the two truly disinterested parties, 
Technical  Sergeant  H---  and  T---  H--- ,  confirmed  that  the 
applicant's truck struck the two women. 
JAJM  stated  that  the  applicant  also  claimed  he  was  innocent 
because he did not  llintendll to strike either individual with his 
truck.  However,  intent  is  not  an  element  of  either  assault 
consummated  by  a  battery  or  aggravated  assault. 
Thus ,  the 
applicant's assertion that he lacked the intent to +ssault either 
woman  is not  dispositive.  Moreover, the  facts of  the  incident 
belie the applicant's claim that he did not  intend to commit an 

2 

AFBCMR  9 7 - 0 1 7 9 1  

assault.  Intent can often be proven by circumstantial evidence. 
The  circumstantial  evidence  in  the  applicant's  case  clearly 
suggested that he was  driving his vehicle  forward, that  he was 
angry, that he saw both women in front of his truck, and that he 
continued  to  drive  forward  without  regard  for  their  safety. 
Thus, even if intent was not a requisite element of the offense, 
these  circumstances  would  have  been  sufficient  fQr  the 
applicant's commander to determine that he intended to commit the 
resulting assaults. 

JAJM  indicated  that  the  applicant's next  assignment  of  error, 
however, was more problematic.  Through his defense counsel, the 
applicant  claims  that  his  punishment  after  his  appeal  was 
illegal. The applicant raises two issues: 1) that  the appellate 
authority  increased  rather  than  decreased  his  punishment  in 
violation  of  the  Manual  for  Courts-Martial  (MCM),  Part  V,- 
paragraph  lf(2);  and  2)  that  the punishment  of  30 days' extra 
duty and 30 days restriction constituted an illegal punishment in 
violation  of  the  MCM,  Part  V,  paragraph  5d(4).  According  to 
JAJM, dealing with the issues in reverse order, they can dispose 
of the second claim rather quickly.  The applicant claimed that 
his punishment of 30 days of extra duty and 30 days' restriction 
violated  the  provision  of  paragraph  Sd(4)  because  when 
restriction and extra duties are combined, the combination cannot 
exceed the maximum imposable for extra duties  (or 45 days).  The 
applicant and his defense counsel argued that his punishment of 
30 days extra  duty and  30 days  restriction equated  to  60  days 
punishment, 15 days beyond the 45 day limit.  What the applicant 
and his counsel failed to realize was that the MCM  specifically 
provided  that  the punishment  of  extra duty and  restriction can 
run concurrently provided the punishment was completed within 45 
days.  If  the  applicant's 30 days  of  extra  duty  and  30'  days 
restriction  ran  consecutively,  then  the  punishment  would  have 
totaled  60  days  and  would  have  been  illegal. 
However ,  the 
applicant's punishment  ran  concurrently  and  was  completed  in 
30 days and therefore legal under the MCM. 
According  to  JAJM,  the  applicant's  first  issue,  that  the 
appellate authority failed to properly mitigate  his punishment, 
was more troubling.  MCM, Part V, paragraph If (2) , provides that 
llonce nonjudicial  punishment  has  been  imposed,  it  may  not  be 
increased, upon  appeal or otherwise."  In his  3  Dec  96 appeal 
letter, the applicant asked the appellate authority to set aside 
the  entire  Article  15,  or,  in  the  alternative,  reduce  his 
forfeitures to $300.00 per month for two months due to financial 
hardship.  In response, the appellate authority  "mitigated11 the 
punishment  from a  reduction to  the grade  of  technical sergeant 
(suspended  until  24  May  1997  and  thereafter  remitted), 
forfeitures of $985.00 pay per month for 2 months and a reprimand 
to  a  reduction  to  the  grade  of  technical  sergeant  (suspended 
until  24  May  1997  and  thereafter  remitted),  fmfeitures  of 
$500.00 pay per manth for 2  months, 30 days extra duty, 30 days' 
Thus,  in 
restriction  to- 
exchange  for  $970.00  in  forfeitures,  the  applicant  received 

AFB,  and  a  reprimand. 

- 

- 

3 

AFBCMR  97-01791 

30 days of extra duty and 30 days restriction.  While there is no 
rule  which  prohibits  mitigating  forfeitures  to  extra  duty  and 
restriction, JAJM believes, based upon the specific facts of this 
case, that  such a marginal  llmitigationtl violated  the  spirit of 
the MCM  and arguably  increased the applicant's punishment.  To 
correct this error, it would be appropriate for the applicant to 
receive an additional mitigation of $500.00 in l o s t   forfe&ures. 
In conclusion, JAJM indicated the applicant's initial nonjudicial 
punishment  action  was  properly  accomplished  and  legally 
sufficient.  However, the commander's action on appeal violated 
the  spirit,  if  not  the  letter,  of  the  MCM  by  failing  to 
appropriately mitigate the applicant's punishment.  Contrary to 
the  applicant's assertions, this error  does not  invalidate the 
entire Article 15.  In JAJM's view, the appropriate remedy would 
be  to return an  additional  $500.00 in  lost  forfeitures to  the 
applicant as further mitigation of his original punishment.  The 
other errors raised by the applicant were without merit. 
A complete copy of the JAJM evaluation is at Exhibit C .  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

In his  response, the  applicant  contended  that  he  was  innocent 
because  he  did  not  strike  the  two  women  with  his  vehicle, 
intentionally or otherwise.  The  evidence used  against him  was 
insufficient to establish guilt.  Besides his wife and himself, 
there were six, not five, eyewitnesses that saw the entire event. 
In  the  sixth  eyewitness's statement,  never  once  was  there  a 
mention  of  his  truck  striking  the  two  women. 
The  advisory 
opinion  neglected  to  mention  the  additional  affidavits  of 
telephone  conversations  with  the  eyewitnesses,  where  they 
conveniently didn't see his truck hit  the two women.  Even the 
two women could not  support each others' statements with an eye 
witness account of what happened. 

According to the applicant, his rights were materially prejudiced 
during the processing of the Article 15 in several ways.  First, 
when the additional punishment was imposed, he was aeparated from 
his family and required to live in the dormitory on  base.  As a 
master sergeant, living in the dormitory with airmen and junior 
noncommissioned officers  (NCOs) was humiliating.  Extra duty was 
bad enough because he couldn't spend any time with his two year 
old  daughter who  would  cry  for him  almost  every night.  Being 
separated from his 10 year old daughter was also hard.  But the 
hardest part  of  the separation was being put  in a  15 X  20 room 
and not being able to spend time with his wife. 

Second, he  was  relieved of  all  supervisory respoqsibility, his 
security  clearance  was  suspended, and  he  was  removed  from  his 
workcenter  and  given  demeaning  duties  not  commen$urate  to  his 
grade. 

4 

AFBCMR  97-01791 

Third, he was  not  informed of  all  the  information used  against 
him,  either  orally  or  in  writing,  and  he  was  not  allowed  to 
examine documents or physical evidence relating to the offenses. 
The information he was referring to pertained to the allegation 
of child neglect.  He had to prepare for the case ''blindt1 because 
he had no idea what evidence his commander had, or even @at  the 
specifics of the charges were.  The only thing he was told was he 
neglected  his  daughter. 
He  did  not  have  access  to  the 
information that brought his commander to the decision to include 
those charges in the original Article 15.  Even repeated Freedom 
of  Information  Act  requests  were  unreasonably  delayed. 
He 
finally did get results, though the information was so incomplete 
he  saw  nothing  that  would  indicate  the  reason  his  commander 
included those charges. 
In the applicant's view, by failing to appropriately mitigate his 
punishment and substantially prejudicing his rights, according to 
the MCM, the entire Article 15 must be revoked. 

Applicant's complete response and additional documentary evidence 
are 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 .   Sufficient  relevant  evidence  has  been  presented  to 
demonstrate the  existence of  probable  error .or injustice.  The 
evidence of  record reflects that, after considering all matters 
presented by the applicant, his commander determined that he had 
committed  one  or  more  of  the  alleged  offenses, and  made  the 
decision to  impose the nonjudicial punishment under Article  15. 
The applicant elected to appeal and the punishment was mitigated 
by  the appellate authority.  The applicant asserts that  he was 
innocent  of  the  alleged  offenses,  and  that  the  mitigated 
punishment  was  more  severe  than  his  initial  pupishment,  and 
therefore, was illegal.  After a careful review of ithe facts and 
circumstances of  this case, we  find no evidence which convinces 
us  that  the  applicant  did  not  commit  the  alleged  offenses. 
Therefore, we are not inclined to removed the Article 15 from the 
applicant's records  absent  a  strong  showing  the  commander who 
imposed  the  punishment  abused  his  discretionary  authority. 
However,  regarding  the  mitigated  punishment  by  the  appellate 
authority, we  partially  agree  with  AFLSA/JAJM.  Although  the 
imposition of the 30 days of extra duty and 30 day$' restriction 
was  not  illegal, in that  they  ran concurrently, we  too believe 
the mitigated punishment may have violated the spirit of the MCM. 

5 

AFBCMR 97-01791 

However,  we  do  not  agree  with  the  remedy  recommended  by 
AFLSA/JAJM.  As  previously  indicated, we  are  not  sufficiently 
persuaded  of  the  applicant's incupability.  However,  since  it 
appears that the applicant has suffered some financial hardship, 
and we do not want to unduly penalize his family, we are inclined 
to offer the applicant some relief, not to the extent recommended 
by JAJM, but  rather, by  one-half of the sum JAJM proposed.  By 
such  action,  it  is  our  opinion  that  the  applicant  will  be 
afforded proper and  fitting relief based  on the seriousness of 
the offenses and the circumstances of this case. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be  corrected to show that, on 2 1  Feb 97, 
competent  authority  mitigated  the  portion  of  the  nonjudicial 
punishment  imposed under the provisions of Article  15, UCMJ, on 
25  Nov  9 6 ,   pertaining  to  forfeiture  of  pay  to  provide  for 
forfeiture  of  $375.00  per  month  for  two  months,  rather  than 
$500.00 for two months. 

The following members of the Board considered this application in 
Executive Session on 1 9   Mar  98,  under the provisions of AFI  3 6 -  
2 6 0 3  : 

Mrs. Barbara A. Westgate, Panel Chair 
Mr. Gregory H. Petkoff, Member 
Mr. Robert W. Zook, Member 

All  members voted  to correct the  records, as recommended.  The 
following documentary evidence was considered: 

Exhibit A.  DD Form 1 4 9 ,   dated 11 Jun 97,  w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFLSA/JAJM, dated 11 Jul 9 7 .  
Exhibit D.  Letter, SAF/MIBR, dated 4 Aug 9 7 .  
Exhibit E.  Letter, applicant, dated 2 6   Aug 97,  w/atchs. 

BARBARA A. WESTGAT& 
Panel Chair 

6 

AFBCMR  97-01791