RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-03886
                                             INDEX CODE:  111.00, 126.04,
                                               133.03
      XXXXXXXXXXXXXXXXXXXXXX      COUNSEL:  NO

                                             HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

The non-judicial punishment (NJP) he received on 24 May 2005  under  Article
15, Uniform Code of Military Justice (UCMJ), be set aside, he be  reinstated
to the grade of technical sergeant (TSgt – E-6) effective 24 May  2005,  and
that his Enlisted Performance Report (EPR) be upgraded.

________________________________________________________________

APPLICANT CONTENDS THAT:

The commander was prejudiced against him, the allegations  were  false,  the
investigators failed to investigate past and present complaints against  his
accuser, evidence was  not  used  as  provided,  the  evidence  against  the
accuser was “misplaced or lost on purpose”, and there was coercion.

He was serving in Afghanistan until 7  December  2007.   His  new  commander
fully supports his request.

In support of his appeal, he has provided copies of a personal statement,  a
character reference letter from the then- Superintendent,  Police  Services,
his response to the offer of NJP,  numerous  Statements  of  Suspect/Witness
Complaints, an Incident Report, dated 26 August  2005,  a  letter  from  WR-
ALC/JA concerning disposal of evidence, his request for  suspension  of  the
NJP reduction in rank, a printout of his EPR History,  his  EPRs  closing  5
June 2002, 5 June 2003, 5 June 2004, and  5  June  2005,  an  AF  Form  590,
Withdrawal/Reinstatement of Authority to Bear Firearms, a United States  Air
Force Security Police Report of  Investigation,  a  no  contact  order,  the
Record of Non-judicial Punishment Proceedings, a time-line  of  events,  and
an undated letter to a major.

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

________________________________________________________________



STATEMENT OF FACTS:

The applicant is currently serving on  active  duty  with  the  Regular  Air
Force (RegAF) in the grade of staff sergeant (SSgt – E-5).  At the  time  of
the incident which resulted in his NJP, he was serving in the grade of  TSgt
with the 78th Security Forces Squadron, Robins AFB, GA.

On 12 May 2005, the applicant’s commander offered him NJP under Article  15,
UCMJ, for disorderly conduct and assault.  After  consulting  with  counsel,
he accepted NJP, waived  his  right  to  a  trial  by  court-martial  and  a
personal  appearance  before  the  commander,   and   attached   a   written
presentation.  On 24 May 2005, his commander found that he  had  engaged  in
disorderly conduct and had assaulted the mother of his daughter by making  a
stabbing gesture at her head with a dangerous weapon,  and  reduced  him  to
the grade of SSgt,  effective  24  May  2005.   He  appealed  and  submitted
matters in writing, and the appeal was denied on 2 June 2005.

The applicant was rendered a  referral  EPR  for  the  period  6  June  2004
through 5 June 2005.  The EPR was an Annual Report, and was a  referral  EPR
in that it contained a rating to the  far  left  (Unacceptable)  in  Section
III, Evaluation of Performance, for conduct on/off  duty,  and  comments  in
Section V, Rater’s  Comments,  pertaining  to  the  assault  and  NJP.   The
remaining performance blocks in Section III are  marked  to  the  far  right
(indicating  outstanding  performance/exceeding   expectations),   and   the
overall rating in Section IV, Promotion Recommendation, was  “4” (Ready)  by
both the rater and additional  rater.   The  commander  concurred  with  the
report as written.

The applicant’s EPR profile since 1998 follows:

            PERIOD ENDING                    EVALUATION

             26 May 1998                           5 (firewall)
             26 May 1999                           5 (firewall)
             26 May 2000                           5 (firewall)
              5 Jun 2001                           5 (firewall)
              5 Jun 2002                           5 (firewall)
              5 Jun 2003                           5 (firewall)
              5 Jun 2004                           5
      *       5 Jun 2005                           4 (referral)
              5 Jun 2006                           5 (firewall)
              5 Jun 2007                           5

*  Contested Report

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of his request as the applicant sets  forth  no
legal basis for relief.  A commander’s action should only be set aside  when
the evidence demonstrates an error or injustice, and the applicant  has  not
presented evidence of either error or injustice in the Article 15 process.

NJP is permitted by Article 15, UCMJ, and governed by the Manual for Courts-
Martial and Air Force  Instruction  (AFI)  51-202.   The  procedure  permits
commanders to dispose of certain offenses  without  trial  by  court-martial
unless the service  member  objects.   The  service  member  must  first  be
notified by the  commander  of  the  nature  of  the  charged  offense,  the
supporting evidence, and of the  commander’s  intent  to  impose  NJP.   The
service member may then consult with defense counsel  to  determine  whether
to accept NJP or demand trial by court-martial.  Accepting  the  proceedings
is simply a matter of choice of forum and is not an admission of guilt.   By
electing to resolve the allegation in the non-judicial forum, the  applicant
placed the responsibility for determining his guilt with his commander.

In the case of  NJP,  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.

On 9 February 2005, the applicant was involved in a verbal altercation  with
the mother of their daughter.  On that day,  the  mother  drove  with  their
daughter to his on-base quarters to pick up a punching bag for her son,  and
a verbal altercation ensued outside his  residence.   The  applicant  had  a
screwdriver in his hand which he was using to take  down  the  punching  bag
when she grabbed his puppy which had  jumped  into  her  car  to  see  their
daughter.  What occurred next is disputed.  According to the applicant,  she
threatened to throw the puppy and he simply put the screwdriver  and  pliers
into his right hand and attempted to take the puppy from her with  his  left
hand.  According  to  her,  he  choked  her  and  threatened  her  with  the
screwdriver.

In this case,  assault  under  Article  128  requires  only  that  a  person
attempts or offers to do bodily harm to  another  person,  or  uses  threats
accompanied by a menacing act or gesture.  There were no  witnesses  to  the
incident  other  than  the  two  involved   and   their   daughter.    After
interviewing all three, investigators advised the applicant  of  his  rights
and apprehended him  for  Aggravated  Assault,  Communicating  Threats,  and
Child  Endangerment,  and  his  commander  subsequently  charged  him   with
disorderly conduct and assault.  The commander could have charged  him  with
three serious  charges  but  instead  charged  him  with  two  less  serious
charges.

The applicant’s claims are  without  merit  in  that  he  has  presented  no
evidence of error or  injustice  during  the  Article  15  process,  and  no
evidence that his commander was prejudiced against  him,  the  investigation
was incomplete, that he did not hold the screwdriver in a  menacing  manner,
evidence was “lost” or misplaced, or of coercion.

The AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSIDEP recommends denial of  relief  concerning  the  EPR  unless  the
Article 15 is  set  aside.   The  appeal  process  is  for  the  purpose  of
correcting errors or injustices and as long as the  Article  15 exists,  the
report contains no errors or injustices.

The applicant did not file an appeal with  the  Evaluation  Reports  Appeals
Board (ERAB); however, this appeal was forwarded to the ERAB for review  and
they recommended denial because they  were  not  convinced  the  report  was
inaccurate since the applicant did, in  fact,  receive  an  Article  15  for
assault.

The applicant submitted copies of all his previous EPRs  which  they  assume
is to show the  Board  the  contested  report  was  outside  his  character.
However, ratings are not erroneous or unjust because they  are  inconsistent
with other ratings the applicant may  have  received.   A  report  evaluates
performance during a specific period and reflects the  ratee’s  performance,
conduct, and potential at that  time  in  that  position.   He  received  an
Article 15 for assault during the  period  of  the  contested  report  which
explains why the EPR is inconsistent  with  previous  EPRs.   Based  on  the
facts of the Article 15, the mark-downs and  comments  are  appropriate,  in
fact, generous given the circumstances.   Since  AFLOA/JAJM  recommends  the
Article 15 should remain in his records, they recommend the EPR also  remain
in his records  as  written  as  it  is  accurate  and  appropriate  to  the
circumstances.  If the Board sets aside the Article 15, the EPR should  also
be set aside.

The AFPC/DPSIDEP evaluation is at Exhibit D.

AFPC/DPSOE recommends denial of all  relief  requested  and  defers  to  the
evaluations and recommendations of AFLOA/JAJM and AFPC/DPSIDEP.

The APFC/DPSOE evaluation is at Exhibit E.

________________________________________________________________


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded to  the  applicant  on  18
January 2008, for review and comment, within 30 days.  However, as  of  this
date, no response has been received by this office.

________________________________________________________________

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 probable error or injustice.  We find no evidence of  error  in
this  case  and  after  thoroughly  reviewing  the  documentation  applicant
submitted in support of his appeal, we do not believe he has  suffered  from
an injustice.  Evidence has not  been  presented  which  would  lead  us  to
believe that the nonjudicial punishment was  improper.   In  cases  of  this
nature, we are not inclined to disturb the judgments of commanding  officers
absent a strong showing of abuse of discretionary  authority.   We  have  no
such showing here.  The evidence indicates that, during  the  processing  of
this Article 15 action, the applicant was offered every right  to  which  he
was entitled.  He was represented by counsel, waived  his  right  to  demand
trial by court-martial, and submitted written  matters  for  review  by  the
imposing commander.  After considering the matters raised by the  applicant,
the commander determined that he had committed "one or more of the  offenses
alleged" and  imposed  punishment.   The  applicant  has  not  provided  any
evidence showing the imposing commander or the  reviewing  authority  abused
their discretionary authority; that his  substantial  rights  were  violated
during the processing of the Article 15 punishment; or that  the  punishment
exceeded the maximum authorized by the UCMJ.  In view of this  finding,  and
in the absence of evidence the contested EPR is inaccurate  as  written,  we
find no basis upon which to warrant its upgrade.  Therefore,  based  on  the
available evidence of record, we find  no  basis  upon  which  to  favorably
consider this application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue(s) involved.  Therefore, the  request  for  a
hearing is not favorably considered.

________________________________________________________________



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-2007-03886
in Executive Session on 16 April 2008, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Mary C. Puckett, Member
                       Ms. Barbara J. Barger, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Nov 07, w/atchs.
    Exhibit B.  Applicant’s Automated Records Management System
                Extracts.
    Exhibit C.  Letter, AFLOA/JAJM, dated 10 Dec 07.
    Exhibit D.  Letter, AFPC/DPSIDEP, dated 14 Dec 07.
    Exhibit E.  Letter, AFPC/DPSOE, dated 20 Dec 07.
    Exhibit F.  Letter, SAF/MRBR, dated 18 Jan 08.




                                   THOMAS S. MARKIEWICZ
                                   Chair