RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-00226
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
The Article 15 imposed on her on 18 Aug 08 be corrected or removed from her records.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The Article 15 she was given is in error and is not an accurate reflection of the crimes that she was accused of; therefore, she does not believe the Article 15 should remain on her record. Her commander initially gave her an Article 15 on 7 August 08, however, there was no punishment issued on that date. Her commander stated that he would allow her to take care of the violation that she was being charged for and that he would continue with the proceedings on 9 Aug 08 pending the outcome. On 18 Aug 08, she was given two new charges for violation of Article 86 as well as the initial charge. She was completely unaware of either of these violations and was never notified of the alleged offenses. The only reference to the Article 86 is a Memorandum for Record (MFR) written on 18 Aug 08, stating the violations she was accused of committing. She does not feel this should be allowed since both days recorded happened prior to the Article 15 being written and are completely fabricated.
In support of her request, the applicant provided a personal statement, two copies of AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt), dated 7 Aug 08 and 18 Aug 08.
The applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is currently serving on active duty in the grade of senior airman (E-4), having assumed that grade effective and with a date of rank of 21 Aug 08.
On 7 Aug 08, while the applicant was serving in the grade of SSgt (E-5), her commander notified her he was considering punishment under Article 15 for violation of the UCMJ, Article 134, for dishonorable failure to pay a just debt. On 15 Aug 08, the commander decided to drop the Article 15, in favor of a second Article 15 with additional offenses. On 18 Aug 08, the commander notified her he was considering punishment under Article 15 for violation of Article 134, dishonorable failure to pay a just debt and two instances of failure to go to her appointed place of duty in violation of Article 86. Upon consulting with counsel, the the applicant accepted the nonjudicial punishment and waived her right to demand trial by court-martial. She presented matters to and personally appeared before the commander. The commander determined the applicant committed the offenses and on 18 Aug 08, the applicant received punishment of reduction in grade to senior airman (E-4) with a new date of rank of 21 Aug 08 and 30 days extra duty. The applicant appealed the punishment and the appeal was denied.
Additional relevant facts pertaining to this application are contained in the evaluation prepared by the Air Force Legal Operations Agency at Exhibit B.
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AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states that MFRs are used to document incidents such as failure to go to an appointed place of duty. They serve as the starting point for initiating an Article 15 action. If the MFR is based on erroneous information or fraudulent in any way, the commander is in the best position to evaluate that fact when determining whether the individual committed the offense referenced on the MFR. JAJM states that the applicant had the opportunity to rebut any erroneous information contained in the MFR to her commander in writing and in person. The applicant had access to a defense counsel for assistance in evaluating any legal arguments inherent in her case and for help in drafting a response to the action. With that assistance, the applicant decided to accept the commander's judgment in deciding whether she committed the offenses and, if so, what the appropriate punishment should be. JAJM further states that the legal office correctly followed Air Fore regulations in dismissing the first Article 15 and issuing the second action. The applicant did not suffer any error or injustice as the first Article 15 was completely dismissed and the second Article 15 process ensured the applicant received all her rights from beginning to end.
The complete AFLOA/JAJM evaluation is at Exhibit B.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was sent to the applicant on 6 Mar 09 for review and comment within 30 days. As of this date, this office has not received a response.
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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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in 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 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.
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The following members of the Board considered Docket Number BC-2009-00226 in Executive Session on 30 Apr 09, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence pertaining to Docket Number BC-2009-00226 was considered:
Exhibit A. DD Form 149, dated 5 Jan 09, w/atchs.
Exhibit B. Letter, AFLOA/JAJM, dated 3 Mar 09.
Exhibit C. Letter, SAF/MRBR, dated 6 Mar 09.
Panel Chair
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