RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01415
            INDEX NUMBER:  126.00;111.00
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  5 Nov 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 3 Mar 03 be  set  aside  and  removed
from his record.

The referral Officer Performance Report (OPR) rendered on him for  the
period 21 Apr 02 through 20 Apr 03 be declared void and  removed  from
his record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Key evidence and testimony were  ignored  throughout  the  Article  15
proceedings and appeal process.  Three witnesses were not contacted on
his behalf and their statements were  not  considered.   When  he  was
notified he was being accused of a hit and run accident, he  was  told
there were paint chips matching his vehicle.  He was  never  told  the
extent of the damage nor saw the damaged vehicle or photographs  until
after the offer of nonjudicial punishment.   He  also  failed  to  get
legal  representation  until   after   his   second   interview   with
investigators.  He believes this was a serious mistake and that if  he
had exercised his rights to representation, the whole situation  could
have been avoided.  Not knowing the extent of the damage,  he  allowed
himself to be convinced he was responsible.

The OPR was referred to him by  his  additional  rater  who  was  also
listed in the memorandum as the individual to provide his comments to.
 Consequently, he  was  not  provided  the  opportunity  to  have  his
comments reviewed by the next person in the chain in  accordance  with
AFI 36-2406.

He requests the Board pay special attention to statements provided  by
individuals during his Article 15, Article  15  appeal,  and  to  this
Board.

In  support  of  his  appeal,  the  applicant  provides  new   witness
statements, investigation  information,  a  copy  of  the  Article  15
documentation, documentation related to the referral  OPR,  and  a  CD
with digital images of the vehicles involved in the accident.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active  duty  in  the  grade  of
major.  On 31 Jan 03, his wing commander offered him proceedings under
Article 15 on behalf of the  Numbered  Air  Force  commander  for  the
following offenses:

        a.  He did on or about 7 Jan 03, with intent to deceive,  make
to Security Forces Investigators, official statements, “I did not  hit
another vehicle” and “the damage to my vehicle is old, having occurred
when I struck a tree stump in the woods,” or  words  to  that  effect,
which statements were totally false, and were then known to be  false,
in violation of the Uniform Code of Military Justice  (UCMJ),  Article
107.

        b.  He did on or about 10 Jan 03, with intent to deceive, make
to Security Forces Investigators an official statement,  “At  no  time
did I realize I made contact with another  vehicle,”  which  statement
was totally false, and was then known to be false, in violation of the
Uniform Code of Military Justice (UCMJ), Article 107.

        c.  He did, as the driver of a  vehicle  at  the  time  of  an
accident in which said vehicle was involved, and having  knowledge  of
said accident, on or about 3 Jan 03, wrongfully leave the scene of the
accident without making his identity known.

On 18 Feb 03, the applicant accepted  proceedings  under  Article  15,
consulted a lawyer, requested a personal appearance,  and  attached  a
written presentation.  On 3 Mar  03,  the  Numbered  Air  Force  (NAF)
commander determined the  applicant  committed  one  or  more  of  the
alleged offenses.  He imposed punishment consisting of forfeitures  of
$2,477.00 per month for two months and a reprimand.  On 6 Mar 03,  the
applicant acknowledged receipt of the  punishment  and  his  right  to
appeal.  On 18 Mar 03,  the  applicant  appealed  his  punishment  and
submitted a written presentation.  The NAF commander denied his appeal
on 27 Mar 07.  On 16  Apr  03,  the  Appellate  Authority,  the  Major
Command Vice Commander, denied the applicant’s appeal.  On 17 Apr  03,
the NAF commander determined the Article 15  would  be  filed  in  the
applicant’s unfavorable information file (UIF).  The Article 15 action
was subsequently reviewed and found legally sufficient.

A review of the applicant’s OPRs reveals, with the  exception  of  the
referral OPR closing 20 Apr 03, overall ratings of “meets  standards.”
The OPR was referred due to the following line in Section  VI,  “Rater
Overall Assessment:”  “Outstanding performance marred  by  nonjudicial
punishment received for false official statement/fleeing the scene  of
an accident—bottom line—I’d want him by my side again; future CCs  are
lucky to have him!”

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFLOA/JAJM recommends denial of the applicant’s request to  set  aside
the Article 15.  They note the applicant’s request to have his Article
15 removed from his record is based principally on his  contention  he
did not damage a vehicle in  the  parking  lot  and  did  not  lie  to
Security Forces investigators when he  denied  damaging  the  vehicle.
AFLOA/JAJM discusses the information contained in the statements  made
during  the  investigation,  the  character  references  made  on  the
applicant’s behalf, and the Article 15 process.  AFLOA/JAJM states the
applicant contests the merits of the entire  Article  15  action,  but
fails to provide any  new  or  compelling  information  that  was  not
available to him at the time of the imposition of the Article 15.  The
commander imposing the Article 15 was in the best position  to  assess
the evidence and determine the credibility of the witnesses and  in  a
balancing test of credibility between the witnesses,  the  applicant’s
commander could reasonably find that the conduct occurred.

The complete evaluation is at Exhibit C.

AFPC/DPPP recommends denial of the applicant’s request to void his OPR
closing 20 Apr 03.  AFPC notes the applicant’s contention the OPR  was
not  properly  referred.   However,  they  note  that  the  Air  Force
Instruction clearly states that an evaluator can  refer  a  report  on
behalf of the previous evaluator.  The applicant believes because  the
rater did not sign the referral memorandum that the  referral  process
was not done in  accordance  with  the  Air  Force  Instruction.   The
applicant provided his comments to the additional rater on 14  Jul  03
and did not  mention  any  concerns  in  his  comments  regarding  the
referral process.  The memorandum did not prevent the  applicant  from
submitting his statements and his statements being considered  by  the
additional  rater.   AFPC/DPPP  states   that   from   an   evaluation
standpoint, the applicant’s comments were considered by the additional
rater, which is the correct procedure for referring a report on behalf
of the rater.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responds that most of the actions in his case could have
been avoided if he had requested legal representation earlier  in  the
process.  He indicates he made mistakes  to  include  making  multiple
statements without legal representation and not seeing photographs  of
the  damaged  vehicle  until  after  the  Article  15  was  presented.
However, he feels the Air Force too made mistakes.   He  asks  how  an
investigation can be conducted if witnesses on  his  behalf  were  not
interviewed.  Additionally, every time the information  was  reviewed,
the Air Force position strengthened.  The applicant  also  points  out
what he considers other discrepancies in the investigative process.

The applicant’s complete response 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.  Sufficient relevant evidence has been presented to demonstrate  the
existence of error or injustice.  After reviewing the complete evidence
of record, the Board does not find it definitive as to whether  or  not
the applicant was involved in the accident that led to  his  punishment
by Article 15.  However, the central issue as we see it, is not whether
the applicant caused the accident, but whether he was aware  he  caused
it and then, subsequently, took inappropriate actions to cover  up  his
involvement.  The Article 15 imposed on the applicant was  due  to  the
commander determining  the  applicant  was  aware  he  had  caused  the
accident and that the applicant wrongfully  left  the  scene  and  took
subsequent actions to deceive investigators by  making  false  official
statements.  The Board is not persuaded this was the  case.   Both  the
Report of Investigation (ROI)  and  the  documented  interview  by  his
additional rater include testimony that the applicant was not aware  he
had hit the vehicle.   Additionally,  we  note  that  as  soon  as  the
applicant became convinced he caused the accident, based on evidence he
was confronted with by the investigators,  he  provided  his  insurance
information  to  the  owner  of  the  damaged  vehicle.   Finally,  the
commander’s decision to punish the applicant  under  Article  15  would
appear to indicate he believed the applicant’s actions indicated a lack
of integrity.  However, we note the immense outpouring of  support  for
the applicant from his chain of  command,  contemporaries,  and  others
that served with him on a daily basis.  This support, coupled with  the
ROI and other evidence, gives  this  Board  pause  as  to  whether  the
applicant deliberately intended to deceive regarding the accident.   As
such, we  believe  any  doubt  should  be  resolved  in  favor  of  the
applicant.  Therefore, we find a reasonable  basis  to  set  aside  the
Article 15 he received and to void the subsequent OPR rendered on  him.
We recommend  the  applicant’s  records  be  corrected  to  the  extent
indicated below.

_______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of  the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

        a.  The nonjudicial punishment, under the provision of  Article
15, Uniform Code of Military Justice (UCMJ), initiated  on  31  January
2003 and imposed on 3 March 2003 be declared void and expunged from his
records, and all rights, privileges and property of which he  may  have
been deprived be restored.

        b.  The Field Grade Officer Performance Report (OPR), AF Form
707A, closing 20 April 2003, be declared void and  removed  from  his
records.

_______________________________________________________________

The following members of the Board considered  Docket  Number  BC-2006-
01415 in Executive Session on 31 October 2006, under the provisions  of
AFI 36-2603:

      Ms. Martha J. Evans, Panel Chair
      Mr. Wallace F. Beard, Jr., Member
      Ms. Jan Mulligan, Member

All  members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 2 May 06, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLOA/JAJM, dated 20 Jun 06.
     Exhibit D.  Memorandum, AFPC/DPPP, dated 5 Sep 06
     Exhibit E.  Letter, SAF/MRBR, dated 15 Sep 06.
     Exhibit F.  Memorandum, Applicant, dated 11 Oct 06.




                                   MARTHA J. EVANS
                                   Panel Chair


AFBCMR BC-2006-01415


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXX, XXXXXXX, be corrected to show that:

            a.  The nonjudicial  punishment,  under  the  provision  of
Article 15, Uniform Code of Military Justice (UCMJ),  initiated  on  31
January 2003 and imposed on 3 March 2003 be, and  hereby  is,  declared
void and expunged from his records,  and  all  rights,  privileges  and
property of which he may have been deprived be restored.

            b.  The Field Grade Officer Performance Report (OPR),  AF
Form 707A, closing      20 April 2003, be, and  hereby  is,  declared
void and removed from his records.







            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency