RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBERS: BC-2005-03543
INDEX CODE: 126.04
xxxxxxxxxxxxx COUNSEL: NONE
xxxxxxxxxxxx HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 22 MAY 2007
_________________________________________________________________
APPLICANT REQUESTS THAT:
His Article 15, UCMJ, action imposed on 18 May 2005, be removed from his
records. By amendment at Exhibit E, applicant requests that his discharge
be upgraded.
_________________________________________________________________
APPLICANT CONTENDS THAT:
On 18 May 2005, he was administered an Article 15 for having an
unprofessional relationship. The punishment was unjust due to his chain of
command ignoring evidence provided by him which disproved the allegation
against him and by the primary witnesses’ statement that she was being told
what to say to fit the case that was being fabricated against him. He has
taken this issue up his chain of command, to Space Command, and to the
Inspector General, which has gotten him no where.
In support of his application, he provides a personal statement, twenty-two
attachments but not limited to a copy of his Record of Nonjudicial
Punishment Proceedings dated 31 Mar 05 and 18 May 05 and a memorandum of
record from a computer security manager identifying inconsistencies and
probable oversights in the case. The applicant’s complete submission, with
attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant enlisted in the Regular Air Force on 26 October 1993 and was
progressively promoted to the grade of staff sergeant (E-5). On 15 August
2002, the applicant was honorably discharged from the Air Force to accept a
commission. On 16 August 2002, the applicant received his commission
through Officer Training School and was appointed a second lieutenant. The
following is a resume of the applicant's OPR profile:
PERIOD ENDING OVERALL EVALUATION
02 May 03 TRAINING REPORT
02 Mar 04 TRAINING REPORT
02 May 04 Meets Standards
25 Feb 05 Does Not Meet Standards
On 17 August 2003, the applicant received a Letter of Admonishment for
failing to inventory classified material before crew change.
On 6 January 2005, the applicant received a Letter of Reprimand and an
Unfavorable Information File was created for operating a motor vehicle
while under the influence of alcohol.
On 31 March 2005, the commander notified the applicant of his intent to
recommend the applicant be punished under Article 15, UCMJ, for having an
unprofessional relationship with an enlisted woman. On 11 May 2005, the
commander withdrew the Article 15 in order to correct the language in the
specification.
On 11 May 2005, the applicant’s commander notified him of his intent to
recommend the applicant be punished under Article 15, UCMJ, for violating
Articles 92, Unprofessional relationship, and Article 133, Conduct
Unbecoming an Officer. On 16 May 2005, after consulting with military
defense counsel, the applicant waived his right to demand trial by court-
martial and accepted nonjudicial punishment. He submitted a written
presentation. On 18 May 2005, having considered the evidence and the
applicant’s response to the Article 15, the imposing authority determined
the applicant did commit the offense charged. Punishment consisted of a
reprimand and forfeiture of $1,800 pay for two months. The applicant
appealed the punishment and requested the action be suspended or reduced.
The applicant’s appeal was denied.
On 18 May 2005, the commander directed that an Unfavorable Information File
(UIF) Action be filed in the member’s record.
On 11 July 2005, the commander directed the record of the Article 15
punishment be filed in the applicant’s Officer Selection Record and Officer
Command Selection Record.
On 12 August 2005, the applicant voluntarily submitted a request for
resignation instead of undergoing further administrative discharge
proceedings. On 14 November 2005, the Secretary of the Air Force accepted
his tender of resignation and directed that he receive an Under Honorable
Conditions, General Discharge. Subsequently, the applicant was discharged
under the provisions of AFI 36-3206 (Misconduct) and received a General
(Under Honorable Conditions) discharge. He served 3 years, 3 months, and 1
day of commissioned service and 8 years, 9 months and 20 days of enlisted
service.
The remaining relevant facts pertaining to his nonjudicial punishment are
contained in the letter prepared by the appropriate office of the Air Force
at Exhibit C.
________________________________________________________________
AIR FORCE EVALUATION:
AFLSA/JAJM recommends the application be denied. JAJM states the applicant
makes several arguments for removing the Article 15; which includes
disputing the October time period for the incident, establishing he could
not have driven the airman from the bar to his home because his car was in
the shop, challenging the airman’s description of his residence, providing
his phone records to show he did not call the airman as she claimed, and
characterizing the investigation by the Security Forces Office of
Investigation (SFOI) as incomplete and resulting in untruthful witness
statements.
JAJM states the applicant argues the incident could not have happened in
October 2004. While the exact date in October is unknown, the totality of
the evidence supports the commander’s decision to punish the applicant
under Article 15.
JAJM advises the applicant provides evidence that his car was in the shop
and, therefore, he could not have driven the airman to his house from the
bar. The evidence only substantiated that the car was in the shop in
November and December, not in October. JAJM advises the totality of the
evidence supports the applicant’s commander’s findings.
JAJM states that while the airman’s description of the house and room may
not have been precise and accurate, this was the first and last time she
had been in the home, she was recalling the layout over four months after
her visit, she was in the home for a relatively short period of time, it
was late at night, and the amount of lighting at the time is unknown.
JAJM states the applicant states SFOI is guilty of “orchestrating” witness
interviews, “corrupting and guiding witnesses’ stories,” and calling the
witnesses back in to “change their statements.” JAJM advises the applicant
makes a valid point in questioning the investigative process; nevertheless,
the consistency of the witnesses’ statements regarding the facts of the
incident, other than the exact date, is compelling evidence the applicant’s
commander considered.
It is JAJM’s opinion that the evidence presented is insufficient to warrant
removing the Article 15 action and does not demonstrate an equitable basis
for relief. The AFLSA/JAJM evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant states this is a clear case of he said/she said, in which he
asks the Board to look at his Air Force career and his evaluations up
until this alleged incident. This is an attack on his integrity. When he
has done wrong, he comes forward on his own accord, regardless of the
punishment. All statements taken were not supported by evidence given by
the accuser or the initial complaining party. The applicant’s rebuttal is
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 error or injustice. After reviewing all the evidence
provided, the majority of the Board is not persuaded that the nonjudicial
punishment, imposed on 18 May 2005 should be set aside. Evidence has not
been presented which would lead the majority of the Board to believe that
the imposition of the Article 15 on the applicant was improper or
disproportionate. In cases of this nature, the Board is not inclined to
disturb the decisions of commanding officers absence a showing of abuse of
that authority. The majority of the Board has no such showing here. The
evidence indicates that during the processing of this Article 15, the
applicant was offered every right to which entitled. The majority of the
Board notes the applicant’s argument regarding the Security Forces Office
of Investigations (SFOI) “orchestrating” the interviews of the witnesses
resulting in untruthful witness statements. Based on the opinion provided
by JAJM, although the investigative process was less than flawless, the
consistency of the witnesses’ statements regarding the facts of the
incident, other than the exact date, is compelling evidence the applicant’s
commander considered. In view of this, the Board majority does not believe
that an error occurred in the processing of the contested Article 15 and
defers to the opinion of legal authority regarding this issue. By electing
to resolve the unprofessional relationship charge in the nonjudicial forum,
the applicant placed the responsibility to decide whether he had committed
the offense with his commander. Therefore, in the absence of evidence
which shows to the majority’s satisfaction that the applicant’s substantial
rights were violated, he was coerced to waive any of his rights, or the
commander who imposed the nonjudicial punishment abused his discretionary
authority, the Board majority concludes that no basis exists to recommend
favorable action on the applicant’s request. Likewise, since the Board
majority has determined favorable consideration of the applicant’s request
for removal of his Article 15 is not appropriate, his request that his
discharge be upgraded is not possible.
_________________________________________________________________
RECOMMENDATION OF THE BOARD:
A majority of the Board finds insufficient evidence of error or injustice
and recommends the application be denied.
_________________________________________________________________
The following members of the Board considered Docket Number BC-2005-03543
in Executive Session on 25 April 2006, under the provisions of AFI 36-2603:
Mr. Michael K. Gallogly, Panel Chair
Ms. Mary C. Puckett, Member
Mr. Grover L. Dunn, Member
Mr. Gallogly voted to grant the applicant’s request but elected not to
submit a minority report. The following documentary evidence was
considered:
Exhibit A. DD Forms 149, dated 15 Nov 05, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLSA/JAJM, dated 26 Jan 06.
Exhibit D. Letter, SAF/MRBR, dated 10 Feb 06.
Exhibit E. Applicant’s Rebuttal, dated 20 Feb 06.
MICHAEL K. GALLOGLY
Panel Chair
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