RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2002-04076
INDEX NUMBER: 126.00
XXXXXXXXXXXXXX COUNSEL: None
XXX-XX-XXXX HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
The Article 15 imposed on him on 1 Jul 97 be set aside and all rights
and property of which he was deprived be restored.
The referral Enlisted Performance Report (EPR) rendered on him for the
period 8 May 97 through 7 May 98 be voided and removed from his
record.
_________________________________________________________________
APPLICANT CONTENDS THAT:
His ex-wife fabricated the charges against him. She manipulated
their children to support her claims of spousal abuse. His ex-wife
has provided him a statement recanting her earlier claims. His oldest
child has also written a statement verifying that false statements
were given to the Office of Special Investigation (OSI).
In support of his appeal, the applicant provides a statement of his
account of the Article 15 action, a copy of the Article 15 and appeal
actions, a copy of his record of performance, and a recent statement
from his daughter.
The applicant’s complete submission is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is presently serving on active duty in the grade of
master sergeant (MSgt) (E-7). He enlisted in the Air Force on 24 Aug
82. In Jan 97, while he was serving in the grade of MSgt (E-7), an
OSI investigation was initiated on the applicant due to his alleged
aggravated assault of his dependent wife at their off-base residence.
The applicant’s wife also made claims that the applicant physically
and sexually abused her on several occasions. The OSI investigation
was concluded on 19 May 97. On 13 Jun 97, the applicant’s commander
offered him proceedings under Article 15 for an alleged violation of
Article 128, Uniform Code of Military Justice (UCMJ), for assault on
his wife. On 23 Jun 97, the applicant accepted proceedings under
Article 15 and submitted a written presentation. On 1 Jul 97, the
applicant’s commander determined that the applicant had committed the
alleged offense. He imposed punishment consisting of a six-month
suspended reduction to technical sergeant (E-6), forfeiture of $973.00
per month for two months, and a reprimand. On 10 Jul 97, the
applicant appealed the punishment and submitted a written presentation
for consideration by the appeal authority. The appeal authority
granted the applicant’s appeal to reduce the amount of forfeiture to
$650.00 per month for two months. The other part of the punishment
remained the same. A resume of the applicant’s last ten EPRs follows:
Closeout Date Overall Ratings
03 Jan 94 5
23 Aug 95 5
23 Aug 96 5
07 May 97 5
*07 May 98 3
31 Jan 99 4
31 Jan 00 5
02 Jan 01 5
16 May 01 5
02 Mar 02 5
* Contested referral report.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLSA/JAJM recommends denial of the applicant’s request to set aside
his Article 15. After receiving nonjudicial punishment, a member can
apply to his commander or superior commander for set aside of the
punishment. When a commander decides that a member who has been
punished, or is being punished, has suffered a “clear injustice,” the
commander can cancel the punishment in whole or in part and restore
the member’s rights, privileges, or property accordingly. In this
case, the commander concluded that the applicant had assaulted his
wife. The applicant’s successor commander, from whom the applicant
requested a set aside, came to the same conclusion, even after reading
the recanted statement from the applicant’s wife. When an application
is timely filed, the legal office that processed the Article 15 often
can provide the evidence supporting the action. In this case, more
than five years have passed and the evidence is no longer available
for review. The applicant has not provided evidence of a clear error
or injustice related to the Article 15 action.
The complete evaluation, with attachments, is at Exhibit C.
AFPC/DPPPE recommends denial of the applicant’s request to remove his
referral EPR from his record. The applicant did not provide
substantiated evidence that his 7 May 98 EPR was in error or unjust.
The rating chain simply documented adverse information that occurred
during the rating period in accordance with AFI 36-2402, paragraph
1.2.1.
The complete evaluation is at Exhibit D.
AFPC/DPPPWB provides information regarding the applicant’s
supplemental consideration for promotion should the 7 May 98 EPR be
voided. The applicant will be eligible for supplemental promotion
consideration beginning with cycle 99E8 should the Board void the EPR.
The complete evaluation is at Exhibit E.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on
9 May 03 for review and comment within 30 days. To date, a response
has not been received.
_________________________________________________________________
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. We took notice of the
applicant's complete submission in judging the merits of the case, in
particular, the letters authored by his daughter and ex-wife; however,
we are not persuaded that the applicant has been the victim of an
error or injustice. We especially found the letter from his ex-wife
recanting her allegations against him problematic. As pointed out by
AFLSA/JAJM, the letter has no return address, is not dated, and does
not provide a phone number or other means by which to contact her.
Finally, the letter states: “so I know the purpose is to help him I
expect contact with me to come through him first. That way I will
know that I am only doing things that will help him and he will know
that I am not doing anything else to hurt him.” Even if we accept the
letter on its face, this statement causes us to wonder whether its
intent is to right a wrong done to the applicant or to mitigate the
consequences he has suffered, regardless of whether he committed the
stated offenses. As noted in AFLSA/JAJM’s evaluation, the applicant’s
commander considered this same letter before she denied his request to
set aside his Article 15. Finally, although the actions taken against
the applicant may have been instigated by his ex-wife’s allegations
against him, the commander only took action after an investigation by
the OSI substantiated misconduct on the applicant’s part. We do not
find the actions of the applicant’s commander in this case to be
either arbitrary or capricious. Therefore, in the absence of evidence
to the contrary, we find no compelling basis to recommend granting the
relief sought in this application.
_______________________________________________________________
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 BC-2002-
04076 in Executive Session on 2 July 2003, under the provisions of AFI
36-2603:
Mr. Robert S. Boyd, Panel Chair
Mr. James W. Russell, III, Member
Ms. Nancy Wells Drury, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 3 Dec 02, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFLSA/JAJM, dated 21 Feb 03.
Exhibit D. Memorandum, AFPC/DPPPE, dated 11 Apr 03.
Exhibit E. Memorandum, AFPC/DPPPWB, dated 17 Apr 03.
Exhibit F. Letter, SAF/MRBR, dated 9 May 03.
ROBERT S. BOYD
Panel Chair
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