RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02759
            INDEX CODES:  111.02, 126.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 imposed on 15  Dec  05  be
set aside and removed from her records.

Her Enlisted Performance Report (EPR) rendered for the  period  15 Jun
04 through 14 Feb 06 be declared void and removed from her records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She unjustly received the Article 15 for driving under  the  influence
(DUI) of alcohol.  However, she was  not  driving  the  night  of  the
incident.

The referral EPR she received was based on the Article 15 punishment.

In  support  of  her  appeal,  the  applicant  provides  an   expanded
statement, supportive statements, copies of the Article  15  and  EPR,
and other documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
the applicant is currently serving on active  duty  in  the  grade  of
airman first class, with a date of rank (DOR) of 15 Oct 06.  Her Total
Active Federal Military Service Date (TAFMSD) is 15 Jun 04.

Applicant's EPR profile follows:

     PERIOD ENDING                            EVALUATION

  *   14 Feb 06          3 (referral)
      10 Oct 06     5

* Contested report.

On 5 Dec 05, she received nonjudicial punishment under Article 15  for
operating a vehicle (passenger car) on 11 Nov  05  while  the  alcohol
concentration in her breath was 0.11 grams of alcohol per  210  liters
of breath as shown by chemical analysis.  She  was  reduced  from  the
grade of airman first class to airman basic and was ordered to forfeit
$250.00 per month for two months, which was suspended until 14 Jun 06,
after which it was remitted.  In addition, she was restricted  to  the
base for 30 days and ordered to perform 30 days of  extra  duty.   She
did not appeal.  On 20 Dec 05, legal authority found that the  Article
15 proceedings were legally sufficient.

On 17 Mar 06, the applicant, through counsel, requested a set aside of
the nonjudicial punishment as a result  of  a  new  statement  from  a
witness.  Since it appeared there was no action taken on the  request,
another one was offered on 19 Apr 06.   On  8 May  06,  the  commander
determined there was not clear  and  convincing  evidence  that  would
cause him to set aside the punishment.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial  indicating  the  applicant  provides  no
evidence of clear error or injustice in the Article 15 process.   When
evidence of an error or injustice is missing, it is clear that the Air
Force Board for Correction of Military Records (AFBCMR) process is not
intended to simply second guess the appropriateness of  the  judgments
of field commanders.  In the case of nonjudicial punishment,  Congress
(and the Secretary via AFI 51-202) has designated only  two  officials
with the responsibility for  determining  the  appropriateness  of  an
otherwise lawful punishment:  the commander and the appeal  authority.
So long as they are lawfully acting  within  the  scope  of  authority
granted them by law, their  judgment  should  not  be  disturbed  just
because others might disagree. Commanders "on the scene"  have  first-
hand access to facts and a unique appreciation for the needs of morale
and discipline in their command that even the best-intentioned  higher
headquarters cannot match.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSIDEP recommends denial indicating  they  accept  the  advisory
opinion from  AFLOA/JAJM  regarding  the  Article  15.   Since  it  is
AFLOA/JAJM’s position the Article 15 should remain in the  applicant’s
records, they believe the contested report is an  accurate  assessment
of her performance and should also remain in her records.

A complete copy of the AFPC/DPSIDEP evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicates she does not deny she was intoxicated when she was
approached by security personnel.  However, she never had the keys  to
her vehicle nor was she  driving  the  night  of  the  incident.   She
understands the commander’s discretionary authority.  However, because
of the number of individuals  charged  with  DUIs,  she  believes  her
punishment was used as an example by the commander that DUIs would not
be tolerated.  She requests the Board review the evidence presented to
determine the justice of her Article 15 punishment.  She  particularly
wants the Board to review the statement from the  individual  who  has
admitted to driving the vehicle.

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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   The  applicant's  complete
submission was thoroughly  reviewed  and  her  contentions  were  duly
noted.  However, we do not find her assertions  or  the  documentation
presented in support of her appeal sufficiently persuasive to override
the  rationale  provided  by  the  Air  Force   offices   of   primary
responsibility  (OPRs).   The  evidence  of   record   indicates   the
applicant's commander determined that she had  committed  the  alleged
offense of driving under the influence of alcohol,  resulting  in  her
nonjudicial punishment under Article 15.   Although  she  subsequently
requested a set aside of the punishment based  on  new  evidence,  the
commander did not find it sufficient to set aside the Article 15.   We
are not inclined to disturb the discretionary judgments of  commanding
officers, who are closer to events, absent a strong showing  of  abuse
of that authority.  Also, in light of our conclusion that the  Article
15 should not be removed, we find no evidence which would lead  us  to
believe the applicant’s EPR  closing  14  Feb  06  was  an  inaccurate
depiction of her performance at the time it was rendered.  In view  of
the foregoing, and in  the  absence  of  sufficient  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 AFBCMR Docket Number BC-
2007-02759 in Executive Session on 21 Feb 08, under the provisions  of
AFI 36-2603:

      Mr. Wayne R. Gracie, Panel Chair
      Mrs. Lea Gallogly, Member
      Mr. Joseph D. Yount, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Aug 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 12 Oct 07.
    Exhibit D.  Letter, AFPC/DPSIDEP, dated 16 Nov 07.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Dec 07.
    Exhibit F.  Letter, applicant, dated 8 Jan 08.




                                   WAYNE R. GRACIE
                                   Panel Chair