Search Decisions

Decision Text

AF | BCMR | CY2000 | 0001285
Original file (0001285.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-01285

      COUNSEL:  THOMAS J. EMERY

                       HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

The punishment imposed upon him under  Article  15,  Uniform  Code  of
Military Justice (UCMJ), dated 8 April 1999, be  set  aside  and   his
records be purged of any reference to the Article  15  and  all  fines
paid be reimbursed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel contends  that  the  administrative  action  taken
against the applicant was an extreme measure.  Instead, counseling and
mentoring of this young officer would have been a far  better  course.
Under the circumstances in this case, the allegations contained in the
Article 15 are unwarranted and improper since they are  not  supported
by  evidence  beyond  a  reasonable  doubt  or  any  other  reasonable
evidentiary standard.  In any  event,  it  has  been  the  applicant’s
consistent view that Dr. R____ misunderstood  and  misinterpreted  his
intent in needing her assistance to  meet  the  requirements  for  the
Flight Medicine Program.  The recent evidence of her  misunderstanding
of a defense lawyer’s request for  her  professional  expertise  on  a
criminal defense is clearly probative of the tendency of Dr.  R___  to
misinterpret requests in controversial situations.  When asked to take
part in adversarial type proceedings, such  as  a  Court  Martial,  or
where an individual seeks to change course in his medical  regimen  to
achieve qualification in a specific field of practice,  such  requests
arouse suspicion and unreasonable apprehensions for her integrity.   A
careful and fair  analysis  of  specific  charges  under  Article  134
further show that even without new evidence, essential elements of the
alleged offense cannot be proved according to any standard  of  proof,
certainly not beyond a reasonable doubt.  Therefore, the imposition of
the Article 15 punishment was  improper  and  unjust.   It  should  be
removed from all of the applicant’s military records and he should  be
authorized the repayment of his fines.




In  support  of  his  request,  he   submits   numerous   letters   of
recommendation.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant entered extended active duty on 2 June 1998 and is currently
serving in the grade of captain.

On 25 February 1999, applicant was notified of his commander's  intent
to impose nonjudicial punishment upon him for  wrongfully  soliciting,
with intent to deceive, to  make  an  official  statement,  which  was
false.

On 8 March 1999, after consulting with counsel, applicant  waived  his
right to a trial by court-martial, requested a personal appearance and
submitted a written presentation.

On 8 April 1999, he was found guilty by his commander who imposed  the
following punishment:  Forfeiture of $1000.00  pay  per  month  for  2
months; and a reprimand.

Applicant did appeal the punishment; however, the appeal was denied on
8 May 199.  The Article 15 was filed in  his  Unfavorable  Information
File (UIF) and his  Officer  HQ  USAF  Selection  Folder  and  Officer
Command Selection Record.

The first time the applicant will be eligible  for  promotion  to  the
grade of major will be in November 2004.

OPR profile since 1999.

                        PERIOD  ENDING                 EVALUATION   OF
POTENTIAL

                        20 Jun 99        Education/Training Report
                 30 Jun 00                   Meets/Standards

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Military  Justice  Division,  AFLS/JAJM,   reviewed   the
application and states that the evidence presented by the applicant is
insufficient to mandate the relief requested, and does not demonstrate
an equitable basis for relief.  They recommend no relief be granted.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the  Air  Force  evaluation  was  forwarded  to  applicant’s
counsel on 5 October 2000 for review and response. Applicant’s counsel
stated that on a procedural basis, the advisory opinion  violates  Air
Force Instruction 36.2603, paragraph 8.1 which  states  that  advisory
opinions will include a statement whether the requested relief can  be
done administratively.  No such statement is included in the  advisory
opinion.

That same Air Force Instruction further states that advisory opinions,
regardless  of  its  recommendation,  will  include  instructions   on
specific corrective action to be taken if the  board  does  grant  the
applicant.  No instructions on specific corrective action are included
in this opinion. It appears that the opinion was  based  on  a  rather
perfunctory review of the facts and  procedures  and  is  entitled  to
little consideration.  These, perhaps minor defects suggest,  however,
that the advisory opinion, which apparently took some five months  was
prepared with a lack of care and suggests that the writer simply  took
the easy way out of preferring the word of a colonel over  a  captain.
It just ignores or brushes aside the specific facts and  circumstances
of the case.

Applicant's counsel complete response is attached 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.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice with the respect  to  the
Article 15 action.  The evidence reflects that the commander initiated
Article 15 action based on information he determined  to  be  reliable
and that the nonjudicial  punishment  was  properly  accomplished  and
applicant was afforded all rights granted by statute  and  regulation.
The applicant has failed to show any error in the  initiation  of  the
Article 15 action.  We have not been  convinced,  by  his  submission,
that his commander abused his discretionary authority when he  imposed
the nonjudicial punishment,  and  since  we  find  no  abuse  of  that
authority, we find no reason to  overturn  the  commander’s  decision.
Therefore, lacking substantial evidence  to  the  contrary,  no  basis
exists to recommend favorable action on the applicant’s request to the
contested Article 15.

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 issue involved.  Therefore,
the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate 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 17 January 2001, under the provisions of AFI  36-
2603:

                 Mr. Terry A. Yonkers, Panel Chair
                 Ms. Carolyn J. Watkins, Member
                 Mr. John E. Pettit, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 23 February 00, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLS/JAJM, dated 18 Sep 00.
      Exhibit D. Letter, SAF/MIBR, dated 5 Oct 00.
      Exhibit E. Counsel's response, dated 2 Nov 00.






      TERRY A. YONKERS
      Panel Chair



Similar Decisions

  • AF | BCMR | CY2000 | 0000848

    Original file (0000848.doc) Auto-classification: Denied

    In support of his request the applicant has submitted a personal statement, several memorandums from his counsel in support of his efforts to appeal and set aside the Article 15 action, an excerpt from the Manual for Courts- Martial (MCM), his Article 15 written presentation, eyewitness statements, and an AF Form 3070, Record of Nonjudicial Punishment Proceedings. As of this date, this office has received no response. The applicant has not provided any evidence showing that the imposing...

  • AF | BCMR | CY1999 | 9801268

    Original file (9801268.doc) Auto-classification: Approved

    On 12 November 1996, the applicant was notified of his commander's intent to impose nonjudicial punishment on him under Article 15, UCMJ. On 13 December 1996, the applicant was notified of the commander’s intent to file the Article 15 in his Officer Selection Record (OSR). On 11 April 1997, the squadron commander recommended the applicant for “all of his requested Air Force Specialty Code (AFSC) selections and locations.” No documentation exists as to how the applicant entered JUNT except...

  • AF | BCMR | CY2001 | 0002650

    Original file (0002650.doc) Auto-classification: Denied

    A statement written by a treating physician points to the onset of this disorder while the applicant was on active duty although her service medical records show no evidence of any such disorder during her service time. A complete copy of the Medical Consultant’s evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to applicant on 6 Apr 01 for review and...

  • AF | BCMR | CY1999 | 9802758

    Original file (9802758.doc) Auto-classification: Denied

    He states that if he accepts it, he allows the Military Justice system to punish an innocent member based on a Commanders discretion. _________________________________________________________________ AIR FORCE EVALUATION: The Deputy Chief, Military Justice Division, AFLSA/JAJM reviewed the application and states that with regard to the issue of whether the wife was injured on the right arm or the left arm, the evidence was adequate to support a finding that the wife had suffered an assault....

  • AF | BCMR | CY2002 | 0101938

    Original file (0101938.doc) Auto-classification: Denied

    RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 01-01938 INDEX CODE 126.04 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: The Article 15 imposed on 15 November 2000 for violation of Articles 92 and 107, (disobeying a lawful order and making false official statements) of the Uniform Code of Military Justice (UCMJ) be expunged from his record. On 15 November...

  • AF | BCMR | CY2001 | 0101168

    Original file (0101168.doc) Auto-classification: Denied

    Records did not support his contention that he was diagnosed with bipolar disorder while in the Air Force nor in the intervening four and half years since his discharge. He was punished under Article 15, Uniform Code of Military Justice (UCMJ), on 14 Jun 96, for being incapacitated for the proper performance of his duties due to previous overindulgence of alcohol and making a false official statement, a violation of Articles 134 and 107, UCMJ. He received two nonjudicial punishments for...

  • AF | BCMR | CY2001 | 0002409

    Original file (0002409.doc) Auto-classification: Denied

    Neither the policeman who performed CPR nor the responding doctor found any sign that the child was choking on her bottle or that she had vomited, as claimed by the applicant. The cause of death, in the opinion of the doctor, was injuries to the child’s brain. A review of the medical records convinced the doctor that the cause of applicant’s daughter’s injuries was a severe and violent shaking.

  • AF | BCMR | CY2005 | BC-2004-02842

    Original file (BC-2004-02842.DOC) Auto-classification: Denied

    _________________________________________________________________ APPLICANT CONTENDS THAT: There is insufficient evidence of a sexual relationship with SrA M__, or that he obstructed justice by allegedly asking her not to make a statement to the investigator of these charges. AFPC/DPPPE’s complete evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel reviewed the Air Force evaluation and stated that...

  • AF | BCMR | CY2002 | 0002768

    Original file (0002768.doc) Auto-classification: Approved

    The applicant should submit a request for the removal of the Article 15 to the commander who directed that it be placed in his records. In addition, the majority of the Board is sufficiently persuaded that the Article 15 should also be removed from the applicant’s record. Based on the available evidence of record, I find no basis upon which to favorably consider this portion of the application, and strongly recommend you deny the majority’s recommendation to remove the contested Article 15...

  • AF | BCMR | CY2000 | 0001361

    Original file (0001361.doc) Auto-classification: Denied

    Applicant submitted a written statement to the discharge authority along with two letters of support. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPAES reviewed applicant's request and states that the RE code is correct (see Exhibit C). _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant's response to the Air Force advisories states that DPPRS was incorrect in stating that...