RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-03937
            INDEX CODE:  126.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment (NJP) rendered on 8 Feb 07 be set aside.

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APPLICANT CONTENDS THAT:

The legal office did not provide the defense with the evidence  that  proved
his innocence.  The surveillance digital video disc (DVD) (which could  have
exonerated him) was not provided to his attorney until four days  after  his
appeal was denied.  Additionally, the two  individuals  he  was  accused  of
attacking submitted signed statements that they were not assaulted by him.

In support of his  request,  the  applicant  submits  copies  of  electronic
messages, his AF Form 3070, Record of  Nonjudicial  Punishment  Proceedings,
memorandums, and his Enlisted Performance Reports (EPRs).

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 in the grade of staff  sergeant
having assumed that grade effective and with a date of rank of 8 Feb 07.

On 29 Jan 07, the applicant’s commander offered NJP to the  applicant,  then
a technical sergeant.  He was charged with being disrespectful  in  language
to a superior noncommissioned officer, in violation of Article  91,  Uniform
Code of Military Justice (UCMJ); violating a lawful  general  regulation  by
wrongfully using a government travel card for personal, family or  household
related expenses, in violation of Article 92, UCMJ;  unlawfully  striking  a
fellow airman on the body with his arm and pushing an  airman  on  the  body
with his hands, both in violation of Article 128, UCMJ; and being drunk  and
disorderly, which conduct was of a nature to bring discredit upon the  armed
forces, in violation of Article 134, UCMJ.  After consulting  with  counsel,
the applicant accepted the Article 15 proceedings and waived  his  right  to
demand  trial  by  court-martial.   He  presented  written  matters  to  and
personally appeared before  his  commander.   On  8 Feb  07,  his  commander
decided that the applicant committed the alleged  offenses.   The  resulting
punishment  consisted  of  reduction  to  the  grade  of   staff   sergeant,
forfeiture of $1,275.00 pay per month for two months,  45  days  extra  duty
and a reprimand.  The applicant appealed the decision; however,  his  appeal
was denied.  A legal review of the  Article  15  action  determined  it  was
legally sufficient.

The following is a resume of the applicant’s EPRs:

Close-out Date   Promotion Recommendation

 5 May 97        5
 5 May 98        5
 5 May 99        5
14 Dec 99        5
14 Dec 00        5
14 Dec 01        5
14 Dec 02        4
14 Dec 03        4
14 Dec 04        5
14 Dec 05        5
14 Dec 06        5
11 Feb 07 (Referral Report)       3
11 Feb 08        5


The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states NJP is authorized by Article  15,
UCMJ and governed by the Manual for Courts-Martial (Part V) and AFI  51-202,
Nonjudicial Punishment.  This procedure permits  commanders  to  dispose  of
certain offenses without trial by court-martial unless  the  service  member
objects.  The member  may  consult  with  a  defense  counsel  to  determine
whether to accept the NJP or demand trial by court-martial.   Accepting  the
proceedings is simply a choice of forum; it’s not  an  admission  of  guilt.
NJP is also not, when imposed, a criminal conviction.

JAJM notes a set aside of an Article 15 is the  removal  of  the  punishment
from the  record  and  the  restoration  of  the  service  member’s  rights,
privileges, pay, or  property  affected  by  the  punishment.   JAJM  states
setting aside an Article 15 action restores the member to the position  held
before imposition of the  punishment,  as  if  the  action  had  never  been
initiated.  JAJM opines that the set aside  of  punishment  is  to  be  used
strictly in the rare and unusual case where a  genuine  question  about  the
service member’s guilt arises or where the best interest of  the  Air  Force
would be served.

JAJM notes the applicant has raised doubt about his guilt  on  the  assaults
against the airmen.  He has not, however, provided  sufficient  evidence  to
overturn the commander’s  judgment  with  regard  to  those  specifications.
Even though the commander did not have access to the video footage prior  to
making his decision, he did have access to the statements  of  the  victims.
Based on this information, the evidence and other matters submitted  by  the
applicant, the commander concluded that  the  applicant  had  committed  the
offenses.  In addition, after the video footage was provided to the  defense
the applicant was able to  request  his  commander  set-aside  or  otherwise
mitigate  the  punishment  based  on  the  video.   Even  with  the   second
opportunity,  the  commander  still  decided  to  remain  by  his   original
decision.

JAJM points out the assaults were not the only offenses alleged against  the
applicant.  He admits that he was drunk and disorderly and that he used  his
government travel card for personal use.  He also  took  responsibility  for
the  disrespectful  language  toward  a  superior  noncommissioned  officer,
although he states he  was  drunk  and  does  not  remember  committing  the
offense.  JAJM opines the commander considered all of  the  offenses  to  be
serious enough to warrant NJP punishment.

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on  5  Feb
10, for review and comment within 30 days.  As of  this  date,  this  office
has received no response (Exhibit D).

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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  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  the  Air  Force  office  of  primary
responsibility and adopt its rationale as the basis for the 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  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  BC-2009-03937  in
Executive Session on 18 Aug 10, under the provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Jan 09, w/atchs.
    Exhibit B.  Letter, AFLOA/JAJM, dated 15 Jan 10.
    Exhibit C.  Letter, SAF/MRBR, dated 5 Feb 10.




                                   Panel Chair