RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00489 

 COUNSEL: None 

 HEARING DESIRED: YES 

 

 

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APPLICANT REQUESTS THAT: 

 

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

 

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APPLICANT CONTENDS THAT: 

 

His three previous commanders were prejudiced against him due to 
an ongoing investigation that took over four years to complete. 
Between December 2006 and March 2010, his commanders indicated 
they wished to demote and discharge him based on false 
information they were provided. His record, prior to his Article 
15, was flawless. He was poorly advised by the acting First 
Sergeant on whether or not to accept nonjudicial punishment 
proceedings. 

 

In support of his appeal, the applicant provides copies of a 
witness statement, his Article 15, an excerpt of a news article, 
a memorandum of record, his appeal of nonjudicial punishment, and 
a letter of support. 

 

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

 

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STATEMENT OF FACTS: 

 

The applicant is currently serving as a member of the Regular Air 
Force in the grade of staff sergeant (E-5). 

 

On 20 January 2010, the applicant’s commander preferred court-
martial charges against the applicant. The offenses included 
larceny, in violation of Article 121 UCMJ; and solicitation, 
obstruction of justice, and other offenses, all in violation of 
Article 134, UCMJ. The charges and specifications were referred 
to a general court-martial on 25 February 2010. The trial took 
place on 23-26 August 2010. A panel of officers found the 
applicant not guilty of all charges and specifications. The 
investigation which led to the applicant’s court-martial began at 
Hurlburt Field, Florida. Personnel from the Air Force Office of 
Special Investigation informed authorities at Davis-Monthan Air 


Force Base about the investigation involving the applicant in 
July 2008. As a result of that investigation, the applicant’s 
security clearance was suspended. 

 

In October 2008, the applicant’s commander offered the applicant 
an Article 15 for dereliction of duty for willfully failing to 
refrain from attending a classified training briefing while his 
security clearance was suspended. After consulting with counsel, 
the applicant accepted the nonjudicial punishment proceedings and 
waived his right to demand a trial by court-martial. He 
presented written matters to and requested a public appearance 
before the commander. On 23 October 2008, the commander 
concluded the applicant had committed the alleged offenses and 
imposed punishment consisting of a suspended reduction to the 
grade of senior airman, 30 days extra duty, and a reprimand. The 
applicant appealed, but the appeal was denied. A legal review of 
the Article 15 action determined it was legally sufficient. 

 

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AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states the applicant has 
failed to demonstrate a material error or injustice in his 
Article 15 action such that a set-aside would be in the best 
interest of the Air Force. The applicant implies that his 
commanders used the pretext of his attendance at the classified 
briefing as a way to impose punishment on him for the 
investigation that was ongoing against him in 2008. However, 
there is no evidence in the record or in the application to 
support this implication. An examination of the process of the 
Article 15 shows the commander observed the applicant’s rights 
throughout the process. He was given the opportunity to turn 
down the proceeding and demand court-martial. He had 
opportunities to present any extenuating or mitigating evidence 
to his commander as part of the Article 15 proceeding. Once the 
commander found the applicant had committed the offense and 
imposed punishment, the applicant had the opportunity to have 
those decisions reviewed by a higher commander. In addition, 
once the process was complete, the Article 15 underwent two 
levels of legal review. By accepting the offer of non-judicial 
punishment, the applicant accepted the fact that the commander 
would make a determination as to whether the applicant committed 
the offense and, if so, what would be the appropriate punishment 
for the offense. Ultimately, the commander was in the best 
position to weigh the information provided by the applicant and, 
also the other evidence in the case, and make informed findings 
of fact and arrive at a suitable punishment. Based on the 
evidence in this case, it was not an abuse of the commander’s 
authority to find the applicant had committed the offense and 
that nonjudicial punishment was appropriate for the offense. 

 

The applicant says he is not guilty of the offense because he did 
not know the briefing was classified. He also included in his 


application statements from others who attended the briefing and 
said they did not know it was classified. This is the same 
argument the applicant made to his commander and, seemingly, also 
in his appeal to the higher commander. In addition the applicant 
states he received bad advice from an acting First Sergeant with 
regard to his decision to accept the Article 15. However, he 
clearly indicated on the Article 15 form (AF Form 3070) that he 
had the opportunity to consult with a defense counsel before he 
made his decision to accept the Article 15. There is no evidence 
of any advice given to the applicant by an acting First Sergeant; 
therefore, his argument is not persuasive. 

 

 

The complete JAJM evaluation is at Exhibit B. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was provided to the applicant 
on 8 April 2011 for review and comment within 30 days. To this 
date, this office has received no response. 

 

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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. Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. We note the 
applicant’s commander offered him Article 15 punishment for 
dereliction of duty for willfully failing to refrain from 
attending a classified training briefing while his security 
clearance was suspended. The applicant contends he was unaware 
the briefing was classified and provides supporting witness 
statements indicating there were no classified signs posted, nor 
did the briefer notify the audience that the briefing was 
classified. The provided witness statements indicate there were 
numerous security violations in their organization in regard to 
classified briefings, i.e., allowing cell phones in classified 
briefings, briefers not verifying that only those members with 
the requisite access were allowed in the briefing, loss of 
control of Special Access Program (Top Secret) material, etc. 
While we believe the applicant bears responsibility for ensuring 
he did not violate any security standards while his security 
clearance was suspended, we believe the evidence he has provided 
establishes reasonable doubt that he did not willfully violate 
security standards and that he may not be solely at fault for the 
breach. As such, we elect to resolve any doubt in favor of the 
applicant. While we normally accord great deference to the 


actions of commanders unless clear evidence is provided that they 
exceeded their discretionary authority or their actions were 
arbitrary or capricious, in this instance we believe it is in the 
interest of equity and justice to remove the Article 15 from the 
applicant’s record. Therefore, in an effort to offset any 
possibility of an injustice, we recommend the applicant’s record 
be corrected to the extent indicated below. 

 

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(s) 
involved. Therefore, the request for a hearing is not favorably 
considered. 

 

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THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT be corrected to reflect that the 
nonjudicial punishment under the provision of Article 15, Uniform 
Code of Military Justice, initiated on 21 October 2008, and 
imposed on 23 October 2008, be declared void and expunged from 
his records, and all rights, privileges and property of which he 
may have been deprived be restored. 

 

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The following members of the Board considered AFBCMR Docket 
Number BC-2011-00489 in Executive Session on 12 October 2011, 
under the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

All members voted to correct the records, as recommended. The 
following documentary evidence for AFBCMR Docket Number BC-2011-
00489 was considered: 

 

 Exhibit A. DD Form 149, dated 24 Jan 11, with atchs. 

 Exhibit B. Letter, AFLOA/JAJM, dated 21 Mar 11, w/atchs. 

 Exhibit C. Letter, SAF/MRBR, dated 8 Apr 11. 

 

 

 

 

 Panel Chair