DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

I 

Office of the Assistant Secretary 

AFBCMR 98-000 1 1 

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: 

records of the Department of the Air Force relating to- 
be corrected to show that: 

a.  The Article 15, UCMJ, initiated on 9 January 1995, with punishment imposed on 

26 January 1995, be, and hereby is, set aside and removed from his records and all rights, 
privileges and property of which he may have been deprived be restored. 

b.  The Article 15, UCMJ, initiated on 7 February 1995, with punishment imposed on 

13 February 1995, be, and hereby is, set aside and removed from his records and all rights, 
privileges and property of which he may have been deprived be restored. 

V 

Air Force Review Boards Agency 

AIR FORCE BOARD FOR  CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER O F :  

DEC 0 8 1998 

DOCKET NUMBER: 98-00011 
COUNSEL : 
HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 

The Article 15s, dated 26 January 1995 and 13  February 1995, be 
removed from his records. 

APPLICANT CONTENDS THAT: 

He was exonerated and his Unfavorable Information File  (UIF) was 
pulled; however both Article  15s are  still in his records.  In 
support,  he  provides  an  unsigned,  undated  AF  Form  1058,  UIF 
Action, which  contains  a  typed  statement,  "The Article  15  for 
stealing  and  the  Article  15  for  impeding  an  investigation  are 
being removed from the UIF. Because of this action the UIF is now 
being terminated. 

A copy of applicant's complete submission is attached at Exhibit 
A. 

STATEMENT OF FACTS: 

The  applicant  was  honorably  released  from  active  duty  in  the 
grade of airman first class on 19 October 1996  for completion of 
required active service and transferred to the Reserves.  He had 
4  years of active service. 
The  remaining  relevant  facts  pertaining  to  this  application, 
extracted from the applicant's military records, are contained in 
the letter prepared by  the appropriate office of the Air Force. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this 
Record of Proceedings. 

AIR FORCE EVALUATION: 

The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
evaluated this  appeal  and  provides  the  details  surrounding  the 
Article  15s  in  question.  The  applicant  has  not  provided  any 
compelling evidence  that  he  was  subsequently exonerated-of  the 

offenses  in  either of  the Article  15s.  There  is no paperwork 
indicating the Article 15s were set aside. If he was exonerated, 
some  sort  of  documentary  evidence  should  exist  to  corroborate 
this. A  document  can only remain in a UIF  for two years. This 
could be the basis as to why the Article 15s were removed and the 
UIF  terminated.  In addition, the AF  Form  1058  is  questionable 
since it is not signed and not dated. The author concludes that 
as  there  are  no  legal  errors  requiring corrective  action, the 
appeal should be denied. 

A copy of the complete Air Force evaluation is at Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant responded with electronic mailgrams dated 4 and 5 May 
1998,  an  undated  handwritten  statement  and  an  undated  typed 
statement. He  states  that  with  these  two  Article  15s  in  his 
record  his  honorable  discharge  might  as  well  have  been 
dishonorable because no one will hire him. He was innocent and it 
was  all a misunderstanding. He gives his  reasons at  length f o r  
why the Article 15s should be removed. He also provides a copy of 
the AF  Form  1058 that  is signed and  dated.  [The  Personnel  Data 
System  (PDS)  indicates  t h a t   the  individual  who  signed  the  form  i s  
currently  a 
i n   the  A i r   Force.  The  PDS  also 
ieu tenant, 
t  Squadron 
ieved  from 

lSt lieutenant 

form  as  a 

was  discharged. ] 

Applicant's complete responses, with  attachment, are  at  Exhibit 
E. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
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. 
According  to the AF  Form  1058, signed and dated  26 March  1996, 
the  77MSS  section commander  removed  the  contested  Article  15s 
from  the  UIF, effectively  terminating  the  UIF. We  realize  the 
mere  removal  of  the  Article  15s  from  the  U I F   does  not 
conclusively  prove  the  applicant  was  exonerated  and  the 
nonjudicial  punishments  were  set  aside. 
This  may  have  been 
merely an administrative action taken to close the UIF.  However, 
we  note  these  documents were  removed  nearly  a year before  the 
normal two-year period. We believe the possibility exists that he 
may have been cleared of the charges against him. In view-ef  this 

2 

98-0001 1 

and  the  anguish  he  appears  to  have  suffered, we  conclude  any 
doubt in this case should be resolved in behalf of the applicant. 
Therefore, on the basis of  clemency, we recommend his records be 
corrected as indicated below. 

THE BOARD RECOMMENDS THAT: 
The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that: 

a.  The Article  15, UCMJ,  initiated on 9 January 1995, with 
punishment  imposed on 26 January 1995, be  set aside and removed 
from his records and all rights, privileges and property of which 
he may have been deprived be restored. 

b.  The Article 15, UCMJ,  initiated on 7 February 1995, with 
punishment imposed on 13 February 1995, be set aside and removed 
from his records and all rights, privileges and property of which 
he may have been deprived be restored. 

The following members of the Board considered this application in 
Executive Session on 22 October 1998, under the provisions of AFI 
3 6 - 2 6 0 3 :  

Ms. Martha Maust, Panel Chair 
Mr. Kenneth L. Reinertson, Member 
Mr. William M. Edwards, Member 

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

Exhibit A.  DD Form 149, dated 13 Jan 98, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFLSA/JAJM, dated 1 8   Mar 98. 
Exhibit D.  Letter, AFBCMR, dated 4 May 98. 
Exhibit E.  One undated typed statement w/atch, one undated 

handwritten statement, and two Electronic 
Mailgrams dated 4 and 5 May 98, 

ARTHA MAUST' 
Panel Chair 

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_..._. ._... 

L ,... , . .. . .. . ~. . . . ...--  --^- 

~ 

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DEPARTMENT OF THE AIR  FORCE 
AIR  FORCE  LEGAL SERVICES  AGENCY  (AFLSA) 

- .  

18 Mar 98 

MEMORANDUM FOR AFBCMR 

FROM:  AFLSNJAJM (Maj Hogan) 
1 12 Luke Avenue, Room 343 
Bolling AFB, DC 20332-8000 

SUBJECT:  Correction of Military Records o

(F :/JAJM/JDATA&IOGAN/MONDOUX.BCM) 

w

1 

Applicant’s request:  In an application dated 13 January 1998, the applicant requests the 

removal of a two nonjudicial punishment actions from his permanent records.  The applicant 
received the first Article 15 nonjudicial punishment action on 26 January 1995 for stealing two 
cases of champagne, valued at around $156.00 from the NCO Club 
This was in violation of Article 121 of the Uniform Code of Mili 
applicant received the second Article 15 nonjudicial punishment action on 13 February 1995 for 
a violation of Article 134 of *e  UCMJ for endeavoring to impede an investigation. The 
applicant separated from the service on 17 Nov 95.  The application was submitted within the 
three year statute of limitations provided by  10 U.S.C.  1552(b). 

Facts of military justice action:  On 9 January 1995, the applicant was notified of his 

commander’s intent to impose nonjudicial punishment upon him for one specification of larceny, 
a violation of Article 121 of the Uniform Code of Military Justice.  The applicant was alleged to 
have stolen two cases of champagne from the NCO Club 
January 1995, the applicant acknowledged he understood 
punishment proceedings, that he consulted a lawyer, that he waived his rights to be tried by 
court-martial, and that he desired to make a personal and written presentation to the commander. 
On 26 January 1995, the applicant’s commander determined that the applicant had committed the 
offenses and imposed punishment consisting of forfeitures of $200.00 pay.  On 26 January 1995, 
the applicant appealed his commander’s decision and indicated he would submit additional 
matters in writing.  On 7 February 1995, the appellate authority denied the applicant’s appeal. 
The Article 15 was reviewed and found legally sufficient on 21 Feb 95. 

On 7 February 1995, the applicant was notified of his commander’s intent to punish him 
under Article 1 5 nonjudicial punishment proceedings for impeding an investigation in violation 
speak to 
of Article 134 of the UCMJ.  Specifically, the applicant asked a -0 
the principle witness against him (the applicant) and to ask her to drop the charges.  On 10 
February 1995, the applicant acknowledged he understood his rights concerning nonjudicial 
punishment proceedings, that he consulted a lawyer, that he waived his rights to be E e d  by 

court-martial, and that he desired to make a personal and written presentation to the commander. 
After listening and reviZiving the applicant’s presentatiQn, the commander found the applicant 
guilty of the alleged offenses and sewed punishment on the applicant on 13 February 1995.  The 
punishment consisted of a reduction to the grade of airman basic (the reduction below the grade 
of airman was suspended until 1 August 1995) and 23 days extra duty.  On 13 February 1995, the 
applicant appealed his nonjuducial punishment.  On 2 1 February 1995, the applicant withdrew 
his decision to appeal.  On 22 February 1995, the Article 15 was found to be legally sfiicient. 

Applicant’s contentions:  The applicant contends he did not commit any of the offenses 

alleged under the two Article 15s.  The applicant claims he was exonerated and, as.a result, the 
Unfavorable Information File (UIF) was removed from his record but they forgot to remove the 
Article 15s from his record.  The applicant separated from the service in November 1995 with an 
honorable discharge.  He requests that the Article 15s be removed from his permanent record. 
The applicant provided an unsigned and undated AF Form 1 058 which he claims corroborated 
the fact that he was exonerated.  The form indicates the UIF was terminated because the Article 
15s were removed from his UIF.  The applicant submitted no evidence of being found not guilty 
of the alleged offenses. 

Discussion:  The applicant has not provided any compelling evidence that he was 

subsequently exonerated of the offenses in either of the Article 15s.  There is no paper work 
indicating the Article 15s were set aside.  The burden is upon the applicant to show the board an 
injustice occurred.  There is nothing in the file which would indicate a clear injustice has taken 
place.  His commander and the appellate authority had the opportunity to review all the evidence 
available at the time of the Article 15 proceedings and upon doing so, determined the applicant 
did commit the alleged offenses.  If the applicant was exonerated, some sort of documentary 
evidence should exist to corroborate this.  A document can only remain in a UIF for a period of 
two years.  This could be a basis as to why the Article 15s were removed and the UIF terminated. 
In addition, the AF Form 1058 is questionable since it is not signed and not dated. 

It is impossible to recreate the evidence available to the commander at the time he 

decided to impose nonjudicial punishment.  However, it appears there was sufficient evidence 
upon which the commander could base her determination that the applicant committed the 
offenses.  The evidence used to support nonjudicial punishment action is not required to meet the 
“beyond a reasonable doubt standard” of a court-martial. Based on the information available, the 
applicant’s nonjudicial punishment action was properly accomplished and he was afforded all the 
rights granted by statute.  The applicant has not raised any new evidence that could not have been 
available to him when he decided to accept nonjudicial punishment proceedings. 

If the Board finds applicant’s submission credible, the Board does have the authority to 

set-aside the nonjudicial punishment actions and thus remove them from the applicant’s 
permanent records. 

.’ I  .  ” 

L. 

Recommendation:- After a review of the available records, I conclude there are no legal 
errors requiring corrective action regarding the nonjudicial punishment and administrative relief. 
I recommend the Board deny the applicant’s request to remove the nonjudicial punishment 
actions from his permanent military record. 

- 

’LOREN  s. PERLSTEIN 
Associate Chief, Military Justice Division 
Air Force Legal Services Agency 

Attachment: 
Case File