RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-00034 

 INDEX CODE: 111.02, 126.00 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

___________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His Article 15 be removed from his records. 

 

2. His referral Enlisted Performance Report (EPR) for the period of 
1 May 07 thru 3 Jun 08 be expunged from his records. 

 

___________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. He received an Article 15 for sexual assault that he did not 
commit. After the investigation was completed, his Article 15 
package was forwarded to the 5th Air Force Commander (5AF/CC) to 
decide if action was going to be taken on his case. The package 
was returned twice without action stating the evidence did not 
support action by the 5AF/CC; any action would need to be taken at 
the Wing level. 

 

2. 5AF/CC issued a “Withholding Authority to Impose Nonjudicial 
Punishment under Article 15, Uniform Code of Military Justice 
(UCMJ)” memorandum that did not allow commanders to impose 
nonjudicial punishment under Article 15 on officer personnel and 
senior non-commissioned officers in the grade of senior master 
sergeant and chief master sergeant. He believes the Wing acted in 
direct contradiction of the AFI and the memorandum with regard to 
imposing UCMJ punishment. He maintains his innocence in this 
matter. His Area Defense Counsel (ADC) expressed concern with the 
UCMJ punishment that was imposed and requested the commander review 
the “authority” to issue an Article 15. His ADC also urged the 
commander to consider that current delegations do not authorize the 
issuance of this Article 15. 

 

3. When he arrived at his new base, he completed a set-aside 
package. His new commander was willing to set aside the Article 
15; however, he was misinformed on the timeline to submit the 
package and therefore missed the deadline. 

 

4. With regard to his request for his referral EPR to be expunged 
from his records, he was not officially charged prior to his EPR 
closeout date and feels that because the investigation was not 
completed prior to the closeout date he should not have received a 
referral EPR. 


In support of his request, the applicant provides copies of 
memorandums from the AFLOA/ADC, copies of the Withholding Authority 
to Impose Nonjudicial Punishment memorandums, an excerpt from 
AFI 51-202, a copy of the applicant’s response to the Article 15, a 
copy of an AF Form 3070B, Record of Nonjudicial Punishment 
Proceedings (MSgt thru CMSgt), a copy of the applicant’s request to 
set-aside the Article 15, a copy of the applicant’s referral EPR, a 
copy of the applicant’s rebuttal to the EPR, and copies of 
character letters. 

 

His complete submission, with attachments, is at Exhibit A. 

 

___________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving on active duty in the grade of 
senior master sergeant. On 8 Sep 08, the applicant’s commander 
offered him nonjudicial punishment. The specific reasons for this 
action were: 

 

 a. Violation of Article 93, UCMJ: One specification of cruelty 
and maltreatment of a subordinate for making sexually suggestive 
remarks to a female airman. 

 

 b. Violation of Article 120, UCMJ: One specification of 
wrongful sexual contact. 

 

 c. Violation of Article 134, UCMJ: One specification of being 
drunk and disorderly. 

 

The applicant consulted with counsel and waived his right to demand 
trial by court-martial. He submitted written statements and 
personally appeared before the commander. The commander found that 
the applicant had committed cruelty and maltreatment, and had been 
drunk and disorderly. However, the commander did not find the 
applicant guilty of one specification of wrongful sexual contact. 
The applicant forfeited $1,985.00 pay per month for two months and 
received a reprimand. The applicant appealed the commander’s 
decision to the 18th Wing Commander; however, his appeal was denied. 
A legal review determined the Article 15 was legally sufficient. 

 

___________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denying the removal of the applicant’s 
Article 15 from his records. JAJM states the applicant contends 
the injustice in this case are that the commanders did not follow 
the governing regulations for imposing nonjudicial punishment on a 
member in the grade of senior master sergeant and that he did not 
commit sexual assault against the accuser. However, JAJM points 
out that the applicant was charged with three offenses on the 


Article 15; however the applicant only focused on the sexual 
assault offense when he provided his appeal to the commander. As a 
result, the commander lined through the offense of wrongful sexual 
contact, but found that the applicant did commit the other two 
offenses. The commander acted within the regulations governing 
nonjudicial punishment when he imposed the punishment. For the 
offenses committed, the punishment was lawful and not too harsh. 
Additionally, the applicant has not provided any other evidence 
with regard to the other offenses and therefore has not met the 
burden of proof. JAJM notes the “Withholding Authority to Impose 
Nonjudicial Punishment under Article 15, Uniform Code of Military 
Justice (UCMJ)” memorandums, stating the newly assigned commander 
intentionally did not sign a “Withholding Authority to Impose 
Nonjudicial Punishment under Article 15, Uniform Code of Military 
Justice (UCMJ)” to the Kadena commander because he was a general 
officer unlike the colonels assigned to other 5AF locations. 

 

The AFLOA/JAJM complete evaluation is at Exhibit B. 

 

AFPC/DPSIDEP recommends denying the removal of the applicant’s 
referral EPR from his records. DPSIDEP states the applicant 
received a referral EPR for the period ending 3 Jun 08. The 
referral report was sent to the applicant; he provided comments on 
his own behalf and by his ADC. The applicant did not submit an 
appeal through the Evaluation Reports Appeals Board (ERAB); 
however, the ERAB reviewed the applicant’s application and 
recommends denial. On 8 Jul 08, the group commander reviewed the 
comments IAW AFI 36-2406. On 8 Sep 08, the applicant received the 
Article 15; however, based on the applicant’s own rebuttal to the 
contested EPR, the Article 15 was unrelated to the comments 
mentioned in the EPR. The applicant has not provided any other 
evidence to substantiate his claim that the statements in the EPR 
are inaccurate or unjust. 

 

The DPSIDEP complete evaluation is at Exhibit C. 

 

___________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 30 Apr 10 for review and comment within 30 days. As 
of this date, this office has received no response. 

 

___________________________________________________________________ 

 

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. After a 
thorough review of the evidence and the applicant’s submission, 
we are not persuaded the requested relief should be granted. His 
contentions are duly noted, however, we do not find these 
assertions, in and of themselves, sufficiently persuasive to 
override the rationale provided by the Air Force offices of 
primary responsibility. The evidence reflects that the commander 
initiated the Article 15 action based on information he 
determined to be reliable, the action was properly accomplished 
and the applicant was afforded all rights granted by statute and 
regulation. We are not convinced, by his submission, that his 
commander abused his discretionary authority when he issued the 
Article 15, and since we find no abuse of that authority, we find 
no reason to overturn the commander’s decision. With regard to 
the EPR removal, we are not persuaded by the evidence provided 
that the contested report is not a true and accurate assessment 
of his behavior and demonstrated potential during the specified 
time period or that the comments contained in the report were in 
error or contrary to the provisions of the governing instruction. 
According to AFPC/DPSIDEP, the Article 15 was unrelated to the 
comments mentioned in the EPR and the applicant has provided no 
evidence to substantiate that the statements in the EPR are 
inaccurate or unjust. Therefore, we agree with AFPC/DPSIDEP 
recommendation and adopt their rationale as the basis for our 
conclusion that the applicant has not has suffered either an 
error or an injustice. Therefore, in absence of evidence to the 
contrary, we find no basis to recommend granting the relief 
sought. 

 

___________________________________________________________________ 

 

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-2010-00034 in Executive Session on 13 Oct 10, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 


The following documentary evidence for Docket Number BC-2010-00034 
was considered: 

 

 Exhibit A. DD Form 149, dated 22 Dec 09, w/atchs. 

 Exhibit B. Letter, AFLOA/JAJM, dated 8 Mar 10. 

 Exhibit C. Letter, AFPC/DPSIDEP, dated 9 Apr 10 

 Exhibit D. Letter, SAF/MRBR, dated 30 Apr 10. 

 

 

 

 

 

 Panel Chair