RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-03120 

 COUNSEL: 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His Article 15 issued in May 01 for assault be set aside. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His punishment for disciplining his step-son was not warranted. 
He spanked the child with his open hand which is legal in the 
state of Florida. He was young and inexperienced, so he accepted 
the punishment for lack of understanding. 

 

In support of his request, the applicant submits a statement from 
his attorney, copies of a Report of Investigation (ROI), his 
Enlisted Performance Reports (EPRs) and awards. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

In May 01, the applicant – then a 19-year old airman first 
class – was accused of excessively striking his two-year old 
stepson on his bare buttocks with an open hand. The applicant 
was attempting to discipline the child for being loud and kicking 
the walls. The act was witnessed by the applicant’s spouse, the 
mother of the child, who reported the incident to the 
authorities. She reported that the applicant struck the child 8-
10 times. Medical examinations of the child revealed no bruising 
or other signs of physical injury and all x-rays were negative 
for any history of child abuse. 

 

On 5 Jun 01, the applicant’s squadron commander offered him 
nonjudicial punishment (NJP). He was charged with assault 
consummated by a battery in violation of Article 128, Uniform 
Code of Military Justice (UCMJ). After consulting with his 
military defense counsel, the applicant accepted the Article 15 
proceedings and waived his right to demand trial by court-
martial. He presented written matters to the commander and 
waived his right to make a personal appearance. After 
considering the applicant’s written matters and weighing the 
evidence, the commander determined the applicant committed the 


alleged offenses. The resulting punishment consisted of a 
reduction to the rank of airman basic (suspended) and a 
reprimand. The applicant declined to appeal the commander’s 
decision. A legal review of the NJP action at two separate 
levels determined it was legally sufficient. 

 

The applicant is currently serving as the Noncommissioned Officer 
in Charge (NCOIC), Plans and Programs, in the grade of technical 
sergeant having assumed that grade effective and with a date of 
rank of 1 Oct 11. 

 

The following is a resume of his Enlisted Performance Reports 
(EPRs): 

 

Close-out Date Overall Rating 

 

 16 Apr 02 5 

 16 Apr 03 5 

 16 Nov 03 5 

 16 Nov 04 5 

 26 Jan 06 (Letter of Evaluation) 

 16 Nov 06 5 

 16 Nov 07 5 

 16 Nov 08 5 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

ALFOA/JAJM recommends denial. JAJM states the applicant has not 
alleged any error or injustice in the processing of his Article 
15 action. JAJM notes the applicant was afforded all of his 
rights under Article 15, UCMJ and he chose to have his commander 
decide whether NJP would be appropriate for the offense. JAJM 
states his commander did not act in an arbitrary or capricious 
manner. At the time in question, there was no evidence to 
indicate the applicant’s wife was exaggerating or otherwise not 
credible. 

 

The applicant argues his conduct was not illegal under Florida 
law; however, NJP under Article 15 is governed solely by the 
UCMJ. JAJM notes the evidence presented to the commander 
supported a finding he committed assault consummated by battery 
as defined in the UCMJ. 

 

The applicant believes the email from his former spouse 
exonerates him. JAJM states this is a question of fact for the 
Board to resolve by weighing the veracity of the spouse’s 
statements at the time against her recent recantation. JAJM 
notes the applicant’s submission does not include any evidence to 
support the authenticity of the email. JAJM opines that the 
email is vague and it is not clear whether it was solicited by 
the applicant or if it is a spontaneous admission. 

 


JAJM states the decisions made at the time of the offense deserve 
considerable deference. JAJM opines the applicant’s commander 
was in the best position to decide whether an Article 15 was 
appropriate for the offenses. JAJM notes the applicant received 
a very limited punishment and did not immediately set back his 
career. 

 

JAJM states the applicant’s reasons for his request are unclear 
because his punishment did not result in any loss of time in 
grade or affect his promotion schedule. JAJM states the Article 
15 will not affect his career unless a later disciplinary 
incident triggers a review of his master personnel file. JAJM 
states the applicant’s request is lacking two significant pieces 
of evidence. First, he could obtain a sworn affidavit from his 
ex-wife detailing the extent of her exaggerations, rather than a 
vague email. Second, there is nothing in his package from his 
current commander or anyone else in his chain of command. That 
is not to suggest that the applicant’s cases is without merit, 
but there are other means of obtaining relief, specifically that 
his current commander could set aside the Article 15 if he or she 
believes that is appropriate given the recently discovered 
evidence. To obtain relief through his current request to the 
Board, the applicant must present a stronger case or show what 
extraordinary circumstances constitute an injustice preventing 
him from exhausting other remedies. He has not met either of 
those standards here. 

 

The complete JAJM evaluation is at Exhibit B. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the applicant 
on 23 Dec 10, for review and comment within 30 days (Exhibit C). 
On 19 Jan 11, the applicant’s counsel requested the case be 
administratively closed to allow time to file a response (Exhibit 
D). On 6 May 11, the applicant’s counsel requested the case be 
reopened and the process continued (Exhibit E). No additional 
information was submitted. 

 

_________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has not 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 injustice. In this 
respect, it appears the applicant has not exhausted all avenues 
available to him to obtain relief. Specifically, we note that 
his current commander could set aside the Article 15 if he or she 
believes that is appropriate given the recently discovered 
evidence. The applicant has not provided evidence of actions on 
his part to obtain the relief he seeks through the proper 
administrative channels. The AFBCMR process is not intended as a 
substitute for the proper utilization of established channels for 
the type of corrections he seeks. Until such time as he has 
exhausted all available administrative remedies, we find no basis 
to recommend granting the relief requested. 

 

_________________________________________________________________ 

 

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 this application in 
Executive Session on 22 Feb 12, under the provisions of AFI 36-
2603: 

 

 , Panel Chair 

, Member 

 , Member 

 

The following documentary evidence was considered in AFBCMR BC-
2010-03120: 

 

 Exhibit A. DD Form 149, dated 24 Apr 10, w/atchs. 

 Exhibit B. Letter, AFLOA/JAJM, dated 23 Oct 10. 

 Exhibit C. Letter, SAF/MRBR, dated 23 Dec 10. 

 Exhibit D. Letter, Applicant’s Counsel, dated 19 Jan 11. 

 Exhibit E. Letter, Applicant’s Counsel, dated 6 May 11. 

 

 

 

 

 

 Panel Chair