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
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