RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2009-03698
			COUNSEL:  NOT INDICATED
			HEARING DESIRED:  NO


________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudical punishment (NJP), under Article 15 of the Uniform 
Code of Military Justice (UCMJ), be set aside and his previous 
rank of staff sergeant (E-5) be restored.  In the alternative, 
the portion of the punishment related to his reduction in rank 
to senior airman (E-4) be set aside.

________________________________________________________________

APPLICANT CONTENDS THAT:

New evidence has arisen indicating he did not commit the alleged 
assault.  The victim in the case has come forward with a 
statement indicating he did not assault her, but instead was 
trying to restrain her for her own safety due to her intoxicated 
state.  He was engaging in the defense of another by restraining 
her because she was at risk of harming herself.  She is grateful 
he attempted to prevent her from further embarrassment.

In support of his request, the applicant provides an expanded 
statement and copies of the victim’s statement and his         
AF Form 3070A, Record of Nonjudicial Punishment Proceedings.

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

________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System 
(MilPDS) indicates the applicant is currently serving on active 
duty in the grade of senior airman (E-4), effective and with a 
date of rank of 28 Oct 08.  He enlisted in the Regular Air Force 
on 22 May 01 and has continually served on active duty, entering 
his most recent enlistment on 26 Mar 07, when he reenlisted for 
five years.  Prior to the events under review, he was 
progressively promoted to the grade of staff sergeant (E-5).

On 21 Oct 08, the applicant was notified by his commander of his 
intent to impose NJP under Article 15 of the UCMJ.  The reasons 
for the action were:

	a.  He was, on or about 21 Sep 08, derelict in the 
performance of his duties in that he willfully failed to refrain 
from entering into an unprofessional relationship with Airman 
First Class G--.

	b.  He did, on or about 21 Sep 08, unlawfully grab Airman 
First Class G-- by her hair with his hands.

On 24 Oct 08, the applicant acknowledged receipt of the action, 
accepted NJP proceedings, thereby waiving his right to demand 
trial by court-martial, and elected to submit a statement in his 
defense.

On 28 Oct 08, the commander found the applicant had committed 
the alleged offenses and imposed punishment consisting of a 
reduction to the grade of senior airman (E-4), 45 days of extra 
duty (suspended through 27 Apr 09), and a reprimand.

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force, which are attached at Exhibits C and D.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, indicating the applicant has not 
demonstrated an error or injustice.  The applicant has raised 
the issue of genuine doubt as to his guilt of one of the 
offenses for which he was punished.  His request should not be 
granted for three reasons.  First, the mere fact the victim has 
made a statement does not mean that the commander’s original 
decision was incorrect.  The commander was in the best position 
to evaluate the evidence, which included the statement of a 
witness who saw the assault occur.  Additionally, the victim’s 
previous personal relationship with the applicant casts some 
doubt on her impartiality as she comes forward with a statement 
a year later intended to exonerate the applicant.  Second, the 
applicant was charged with dereliction of duty related to 
entering into an unprofessional relationship with the victim in 
addition to assault.  Even without the assault charge, his 
commander could have offered him NJP for dereliction of duty and 
could have imposed the same amount of punishment.  Third, the 
applicant is currently facing a general court-martial based on 
an accusation of rape.  The fact the applicant had previously 
received an Article 15 for an assault consummated by a battery 
on a half-naked drunk woman is certainly likely to be relevant 
to the court-martial case at some point.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.
AFPC/DPSOE defers to the recommendation of AFLOA/JAJM regarding 
the Article 15 and restoration of his former rank of staff 
sergeant.

A complete copy of the AFPC/DPSOE evaluation is at exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant 
on 23 Dec 09 for review and response within 30 days.  As of this 
date, no response has been received by this office (Exhibit E).

________________________________________________________________

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 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 AFLOA/JAJM and adopt its rationale as the 
basis for our conclusion the applicant has not been the victim 
of an error or injustice.  Therefore, in the absence of evidence 
the information used as a basis for the Article 15 was 
erroneous, or there was an abuse of discretionary authority, we 
find no 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-2009-03698 in Executive Session on 25 May 10, under 
the provisions of AFI 36-2603:

		, Panel Chair
		, Member
		, Member

The following documentary evidence pertaining to AFBCMR Docket 
Number 2009-03698 was considered:

	 Exhibit A.  DD Form 149, dated 2 Oct 09, w/atchs.
	 Exhibit B.  Applicant's Master Personnel Records.
	 Exhibit C.  Letter, AFLOA/JAJM, dated 24 Nov 09.
	 Exhibit D.  Letter, AFPC/DPSOE, dated 7 Dec 09.
	 Exhibit E.  Letter, SAF/MRBR, dated 23 Dec 09.




                                   
                                   Panel Chair