RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-02255 

 COUNSEL: 

 HEARING DESIRED: YES 

 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His nonjudicial punishment received under Article 15, Uniform 
Code of Military Justice (UCMJ) be removed from his record. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The wrong date appears on the second page of his Air Force Form 
1168, Statement of Suspect/Witness/Complainant. The erroneous 
date reveals the investigator suspected him of providing a false 
official statement, but did not inform him at the time of that 
suspicion or provide him a new Article 31, UCMJ rights 
advisement. The 2006 date on his statement was not brought to 
his attention, which could have placed the entire investigation 
in question. In addition, he was not adequately advised by his 
defense counsel with respect to his right under the UCMJ, nor was 
his defense counsel present when he signed the Air Force (AF) 
Form 3070C, Record of Nonjudicial Punishment Proceedings, 
indicating his election not to appeal. Lastly, his case would 
have been better investigated by the Air Force Office of Special 
Investigations (AFOSI) as an informed investigator would not turn 
a domestic matter into a criminal action. 

 

In support of his appeal, the applicant provides a personal 
statement, a statement from his counsel, electronic 
communications, Area Defense Counsel (ADC) communications, AF 
Form 3070C, and several AF Forms 1168 with attachments. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving as a member of the Regular Air 
Force in the grade of major with a date of rank of 1 September 
2006. 

 


The remaining relevant facts, extracted from the applicant’s 
service records, are contained in the Air Force evaluation at 
Exhibit B. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states the applicant has 
failed to demonstrate a material error or injustice as required 
by AF Instruction 36-3203, paragraph 4.1. While it is true that 
the second page of his statement is dated 16 October 2006, the 
first and third pages of that statement are correctly dated 
16 October 2007. In light of the correct date on the first and 
third pages of the statement, which coincides with the period of 
the investigation, there is no indication of any serious 
confusion by any party as to the date of the statement. The 
applicant’s contention that the 2006 date demonstrates the 
investigator should have provided a new UCMJ Article 31 rights 
advisement is illogical and unsupported. In any event, the 
applicant provides no demonstration that the 2006 date resulted 
in prejudice to his Article 15 proceedings. Accordingly, while 
the 2006 date on the second page of his statement is incorrect, 
it did not constitute material error or injustice. 

 

JAJM indicates the applicant’s contention that he was not 
adequately advised by his defense counsel also lacks merit. He 
provides two electronic messages from his defense counsel in 
which his defense counsel conveyed statements by a base legal 
office attorney suggesting that an appeal may hurt any chance of 
avoiding placement of the Article 15 in the applicant’s Officer 
Selection Record (OSR). While the applicant’s defense counsel 
initially recommended the applicant decline his right to appeal, 
the defense counsel subsequently informed the applicant that the 
OSR “may still be up in the air” and asked the applicant to give 
him a call. Moreover, the applicant does not recount any actual 
discussions he held with his defense counsel. In fact, the 
materials provided by the applicant indicate that his defense 
counsel was actively attempting to avoid placement of the Article 
15 in his OSR and to keep the applicant informed. Additionally, 
there was no requirement and no indication of need for his 
counsel to be present when the applicant signed his appeal 
elections. The AF Form 3070C demonstrates the applicant availed 
himself of the ability to submit any matters that he believed 
pertinent to the determination of whether the Article 15 should 
be placed in his OSR. Finally, the applicant acknowledged his 
guilt in his submission to his commander, does not dispute his 
punishment of forfeitures and a reprimand, and does not indicate 
that he believes that there was a serious basis to challenge the 
commander’s determinations on appeal. Accordingly, no basis is 
provided for concluding that the applicant received inadequate 
counsel or was otherwise prejudiced. Finally, the applicant’s 


contention that an investigation by AFOSI would have been 
“better” or resulted in no Article 15 action is speculative and 
unsupported. He acknowledges that he made a false statement 
while under questioning by a Security Forces investigator. He 
does not assert that he would have answered truthfully had he 
been interviewed by an AFOSI investigator, and there is no reason 
to believe an AFOSI investigation would have led to a different 
outcome. 

 

It is JAJM’s opinion that the applicant has not shown a clear 
error or injustice. 

 

The complete JAJM evaluation is at Exhibit B. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

At no point did he ever state that he was in agreement with the 
specification as written in the Article 15. He did attempt to 
have his assigned counsel work to have the wording in the 
specification changed. However, he was never briefed as required 
by AF Instruction 51-202, nor was he advised of violating 
Article 107. The form as signed and dated by the investigator 
does not accurately reflect the sequence of events. There is no 
doubt in his mind that his military record would have provided an 
adequate defense to a charge without the extemporaneous wording 
added by the Base Legal Office. He should have never relied on 
the advice he was given. The only reason he did not challenge 
the advice of his assigned counsel, was based upon the 
relationship between the ADC and the Base Legal Office. In fact, 
when he signed away his appeal rights in front of the Base Legal 
Attorney, whom he believed was working on his behalf, he still 
felt a decision not to have the Article 15 placed in his OSR was 
in hand. 

 

The applicant’s complete rebuttal, with attachments, is at 
Exhibit D. 

 

_________________________________________________________________ 

 

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 note the 
assertions the applicant and his counsel make concerning the 
erroneous date on page two of the AF Form 1169. However, we do 


not find this typographical error had a material impact on the 
outcome of the Article 15 action. Therefore, 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 the applicant has not been the victim of an error or 
injustice. Accordingly, in the absence of evidence to the 
contrary, we find no 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 issues 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. 

 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2010-02255 in Executive Session on 15 March 2010 under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence for AFBCMR Docket Number BC-
2010-02255 was considered: 

 

Exhibit A. DD Forms 149, dated 15 Jun 10, w/atchs. 

Exhibit B. Letter, AFLOA/JAJM, dated 26 Jul 10. 

Exhibit C. Letter, SAF/MRBR, dated 13 Aug 10. 

Exhibit D. Letter, Applicant, dated 10 Sep 10, w/atchs. 

 

 

 

 

 

 Panel Chair