RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-00126
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
His nonjudicial punishment under Article 15 of the Uniform Code
of Military Justice (UCMJ), be set aside or remedial alternatives
be implemented to set-aside the punishment.
APPLICANT CONTENDS THAT:
The Article 15 is a continuing injustice and is having an effect
on him since being discharged from the Air Force. He believes it
will have a negative affect on his profession as an attorney, his
reputation as a pillar of his community, and his character as an
honorably discharged veteran.
He was never informed or aware of the avenues and deadline for
appeal or alternative relief for accepting the Article 15. He
was neither aware of or informed of the protracted, unjust
ramifications of accepting the Article 15 and the effect it would
have on the remainder of his military service, as well as his
post-military personal and professional life.
He believes that receiving an Article 15 does not constitute an
admission of guilt. His counsel at the time provided him with
substandard legal advice regarding his situation. His counsel
discouraged him from seeking private counsel, stating they only
cash your checks. His counsel did not inform him of the 5-day
window for appealing an Article 15 nor was he informed of any of
his options to defend against the charge. He refers to Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984) holds that The right to counsel is the
to effective assistance of counsel. He submits that his
right to counsel inasmuch as it was related to the effective
assistance of counsel in this matter was not upheld to the
standard established by Strickland v. Washington.
He applied for executive clemency authorized under Article II,
Section 2, of the United States Constitution in Mar 08, but was
denied for lack of form, because although it has no inherent
expiration, the Article 15 is not a criminal conviction.
Hypothetically, he would have had the opportunity to mitigate it
with a Petition for Presidential Pardon had a conviction
He respectfully requests a retroactive set-aside of this Article
15, or retroactive appeal, in the interest of justice because of
the rationale described above is sufficient evidence of the
continuing injustice and active stigma the Article 15 represents.
After weighing the totality of the circumstances involved in this
case, if the Board remains not persuaded the continuing stigma
and injustice he is experiencing does not merit mitigation, he
requests and whole-heartedly welcomes, any suggestion the Board
may have regarding remedial alternatives to setting-aside the
He is licensed to practice law in New Jersey and has done so
successfully for almost 4-years without a single allegation of
impropriety. He considered sending character references with his
appeal; however, he does not want to impose on the valued
attorney-client relationships unless the Board requires further
evidence of his admirable character. Furthermore, he volunteered
hundreds of uncompensated hours to historical preservation,
natural conservation, and special needs services.
In support of his request, the applicant provides a copy of a
letter from AFLSA/CCDC, a copy of AF Form 3070, Record of
Nonjudicial Punishment Proceedings, and a copy of his Petition
for Pardon after Completion of Sentence package.
His complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant served in the Regular Air Force in the grade of
Captain, having assumed that grade effective and with a date of
rank of 8 Jan 08. He received an Article 15 on 1 Nov 05 for
bringing a Chino P-32 Caliber handgun in a hollowed-out book,
inside a briefcase, and then left the briefcase containing the
handgun sitting in a public parking lot, conduct which under the
circumstances was unbecoming an officer and a gentleman. He
forfeited $1250.00 pay per month for 2 months. The applicant
received an honorable discharge on 8 Jul 07 after serving
8 years, 6 months, and 1 day on active duty.
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states 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 the commander. The commander found the applicant
had committed the offense and imposed punishment. On 1 Nov 05,
his commander notified him the Article 15 would be filed in an
Unfavorable Information File. The applicant acknowledged receipt
on the same date. After a legal review, the staff judge advocate
found it to be legally sufficient.
The application is untimely. Even assuming the applicants
counsel told him nothing about the appeal process, it is hard to
credit the applicants claim that he was neither informed nor
aware of the avenues and deadline for appeal of the Article 15.
AF Form 3070, Block 4c, notifies the applicant that he must
notify the commander by 1230 hours, 2 Nov 05, whether he appeals
the action. On 28 Oct 05, at 1230 hours, the applicant signed
Block 5 of the form indicating he acknowledged receipt of the
punishment and his right to appeal. After three days, the
applicant signed Block 6 and initialed next to the line I do not
appeal. Block 6 states, members decision ends the time limit
There is no indication, other than the applicants assertion,
that either of the Area Defense Counsels (ADCs) were anything
other than zealous advocates.
In order to convict the applicant of the charged offense at a
court-martial, the government would have had to prove, beyond a
reasonable doubt that he:
a. Brought a handgun onto McGuire Air Force Base, New Jersey
and then left that briefcase containing the handgun sitting in a
public parking lot.
b. Under the circumstances, that conduct was unbecoming an
officer and a gentleman.
Based on the information available in the Automated Military
Justice Analysis and Management System (AMJAMS), the government
would have had sufficient evidence to prove the charges beyond a
reasonable doubt. Considering the good chance the applicant
would have been found guilty at trial, had a federal conviction
on his record and could have faced a punitive discharge and
confinement, his ADC provided effective assistance.
The applicant does not make a compelling argument to overturn the
commanders original decision based on clemency. The commander
had the best opportunity to evaluate the evidence in the case and
weigh it against the applicants written response and verbal
presentation at that time.
The AFLOA/JAJM complete evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
In a four-page response, the applicant provides a detailed
explanation as to why the evaluation should not be considered.
Specifically, he cites the following reasons: 1) it asserts facts
not in evidence; 2) it includes a moot application of the
timeliness requirements for filing; 3) it insufficiently refutes
the claim that he received inadequate counsel; and 4) it fails to
address several critical elements of injustice upon which his
application has been based.
The applicants complete submission, with attachments, is at
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. After a thorough
review of the evidence of record and applicant's submission, we
are not persuaded that his uncorroborated assertions, in and by
themselves, sufficiently persuasive to override the rationale
provided by the Air Force. Therefore, we agree with the opinion
and recommendation of the Air Force office of primary
responsibility and adopt the rationale expressed as the basis for
our decision the applicant has failed to sustain his burden of
establishing that he has suffered either an error or an injustice.
Therefore, in the absence of persuasive evidence to the contrary,
we find no basis to recommend granting the relief sought in this
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 issue 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-2011-00126 in Executive Session on 20 Sep 11, under the
provisions of AFI 36-2603:
, Panel Chair
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 29 Nov 10, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 4 Mar 11.
Exhibit D. Letter, SAF/MRBR, dated 11 Mar 11.
Exhibit E. Letter, Applicant, dated 11 Apr 11.
________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSOR recommends denial, stating, in part, that based on the documentation on file in the master personnel records, the discharge to include the character of service was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The complete DPSOR evaluation is at Exhibit C. AFLOA/JAJM recommends approval,...
___________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM addressed the applicant’s request in regards to the 25 Nov 05 Article 15 being set aside and that he be reinstated to the rank of staff sergeant with his original date of rank, 31 Jan 01; stating, in part, that the applicant’s contentions provide no legal basis for relief and has not presented evidence of a meaningful error or clear injustice in the Article 15 process, and recommended the...
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04010 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. The AF Form 3070A, Record of Nonjudical Punishment Proceedings, reflects the following: Block 3.a. The complete DPSID evaluation is at Exhibit D. AFPC/DPSOE does not provide a recommendation.
The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicants request to set aside his NJP, indicating the applicant has not shown a clear error or injustice. He was later informed that the commander had made his decision to impose...
Specifically, the Procedural Guidance Message was not properly followed at the time of the original allegation submitted by a recruit. He understands that an Article 15, NJP is rarely set aside, unless it is in the best interest of the Air Force. 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...
On 14 May 10, the applicants commander notified him that he was considering whether to recommend that he be punished under Article 15 of the UCMJ for Violations of Articles 92 and 107. On 21 May 10, the applicant, through council, requested the commander drop the Article 15 to a Letter of Reprimand (LOR), and waived his right to court-martial and accepted non-judicial punishment (NJP). But the evidence indicates each commander involved in the Article 15 process, and subsequent set-aside...
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00707 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her Article 15, nonjudicial punishment (NJP), and all actions associated with the punishment be removed; she be reinstated to active duty with her original date of rank; and her reentry (RE) code be changed to one that would allow her to return to...
On 28 May 14, the applicants commander notified him he was being considered for nonjudicial punishment (NJP) under Article 15. AFLOA/JAJMs position to deny the applicants request is supported; however, if the Board determines an error or injustice has occurred, and elects to restore the grade of master sergeant (E-7), the appropriate date of rank and effective date is 1 Feb 11. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence...
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. The AFLOA/JAJM complete evaluation is at Exhibit B. AFPC/DPSIDEP recommends denying the removal of the applicants referral EPR from his records. With regard to the EPR removal, we are not persuaded by the evidence...
The applicant also says her defense counsel said she was too busy to provide legal advice to the applicant or to research her concerns. The applicant is requesting her nonjudicial punishment (Article 15), dated 23 Feb 11, be removed from her record. Furthermore, the remaining charge the discharge board determined she was guilty of was an action she undertook only after first seeking advice from a field grade officer and a security forces NCOIC, and then following the advice she received.