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.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The basis for the case was that he had violated a lawful order and made
false official statements on two occasions. He presented a rebuttal and an
appeal, which invalidated these charges however, his commander went forward
with the nonjudical proceedings. There is a lack of evidence to support
the case as presented in the appeal.
In support of his request, the applicant submitted a personal statement,
copy of the appeal of his Article 15, a copy of AFFM 3070, Record of
Nonjudicial Proceedings, and other documents relating to the issue. The
applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant is currently serving in the Regular Air Force in the grade of
technical sergeant.
On 15 November 2000, his commander offered him nonjudicial punishment
proceedings for violating Article 92 and 107, UCMJ, for disobeying a lawful
order and making false statements. On 21 November 2000, after consulting
with counsel, he waived his right to demand a court-martial and accepted
nonjudicial punishment. On 29 November 2000, his commander determined that
he had committed the alleged offenses and imposed punishment consisting of
a suspended reduction to Staff Sergeant, forfeiture of $250.00 of his pay
per month for two months, a reprimand and 14 days extra duty. However,
that portion of the punishment, which called for a reduction to the grade
of staff sergeant was suspended. The Article 15 was filed in the
applicant's Unfavorable Information File (UIF).
________________________________________________________________
AIR FORCE EVALUATION:
AFLSA/JAJM stated the applicant's contentions are without merit and
constitute neither error nor injustice. Therefore, they recommend that the
Board deny the applicant relief.
The applicant, then a Technical Sergeant assigned to the 374 MXS, at Yokota
AB, Japan, was offered nonjudicial punishment on 15 Nov 00 for disobeying
the lawful order of Staff Sergeant Haselden not to engage in an unlawful
and unauthorized commercial enterprise on base, in violation of Article 92,
Uniform Code of Military Justice (UCMJ); and, on two occasions, with intent
to deceive, signing an official record asserting that he was not bringing a
vehicle on base for the purpose of selling it for himself or someone else,
or for the vehicle to be sold by someone else, which statement was false,
and which he knew to be false, in violation of Article 107 , UCMJ.
The Article 15 punishment was imposed on the applicant 29 Nov 00, for
engaging in an unlawful/unauthorized commercial enterprise on base, and for
signing two official records with intent to deceive, regarding the sale of
motor vehicles on base. The applicant provided a rebuttal to the Article 15
on 3 Dec 00.
By electing to resolve the allegations in the nonjudicial forum, the
applicant vested his commander with the responsibility to decide whether he
had committed the offenses. The commander had to weigh all the evidence,
including the credibility of the various witnesses, and makes his decision.
In this case the commander concluded the applicant had disobeyed the order
and made false official statements. There was sufficient evidence for the
commander to determine the offenses had been committed. The applicant's
arguments failed to convince either the commander who imposed punishment or
the appellate authority.
JAJM indicates that a set aside should only be granted when the evidence
demonstrates an error or a clear injustice. The evidence presented by the
applicant is insufficient to warrant setting aside the Article 15 action,
and does not demonstrate an equitable basis for relief.
The AFLSA/JAJM evaluation is attached at Exhibit C.
AFPC/DPSF recommended denial. The commander correctly adhered to all
polices and procedures which govern nonjudicial punishment. The applicant
failed to provide any significant documentation to warrant removal of his
Article 15/UIF. The applicant exercised his right to rebut the Article 15,
and his commander subsequently elected to change the imposed punishment.
However, the commander was not persuaded to forgo the Article 15. The
AFPC/DPSF evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reviewed the Air Force evaluations and stated that when a
member breaks the rules, they should be judged on what is contained in the
regulation covering the violation. If after the regulation covering this
offense were utilized, it would then establish that the person breaking the
rules would be issued a ticket, license suspended, etc. Having this
information, the Security Forces investigators along with Capt S__ and the
SJA would be able to provide indisputable evidence of the violation. This
was not the case as there was no basis to substantiate violation of the 4-
car limit or false official statement being made. The applicant’s complete
submission is 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 error or injustice. After a thorough review of the evidence
of record and the applicant’s submission, we are not persuaded the
contested Article 15 should be voided. The Article 15 appears to have been
properly accomplished and the applicant afforded all rights granted by
statute and regulation. 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. The Board therefore
agrees with the recommendations of the Air Force and adopts the rationale
expressed as the basis for our decision that the applicant has failed to
sustain his burden that he has suffered either an error or an injustice. In
view of the above and absent persuasive evidence to the contrary, the Board
finds no compelling basis to recommend granting the relief sought.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of 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 Docket Number 01-01938 in
Executive Session on 8 May 2002, under the provisions of AFI 36-2603:
Mr. Terry A. Yonkers, Panel Chair
Mr. Clarence D. Long, III, Member
Ms. Dorothy P. Loeb, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 28 Jun 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLSA/JAJM, dated 31 Dec 01.
Exhibit D. Letter, AFPC/DPSF, dated 12 Mar 02.
Exhibit E. Letter, SAF/MRBR, dated 22 Mar 02.
Exhibit F. Letter, Applicant, dated 15 Apr 02.
DOROTHY P. LOEB
Acting Panel Chair
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