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 applicants 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 applicants
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
applicants 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 applicants 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 applicants Officer
Selection Record (OSR). While the applicants 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
commanders determinations on appeal. Accordingly, no basis is
provided for concluding that the applicant received inadequate
counsel or was otherwise prejudiced. Finally, the applicants
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 JAJMs 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 applicants 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
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