RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00654 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

The Article 15 punishment imposed on 18 Aug 09, be set aside, and 
all money and rank taken from him as a result, be restored. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He has an “erroneous” Article 15 in his records and his command 
will not correct it. He was found not guilty at a court-martial 
for the same offense for which his commander had previously 
imposed nonjudicial punishment (NJP). 

 

On 10 Jun 09, his commander issued a no-contact order that 
prohibited him from having contact with a certain female master 
sergeant because of “allegations of inappropriate conduct.” 

 

On 18 Aug 09, he received an Article 15 for violating a “no-
contact order.” 

 

On 3 Sep 09, his commander vacated the suspended portion of his 
Article 15, and issued another no-contact order – even though he 
was legally separated from his wife and, despite the fact that on 
18 Aug 09 (the same date of his Article 15), the Investigating 
Officer (IO) concluded “the allegation that MSgt R. was engaged 
in an inappropriate relationship with MSgt D. [is] 
unsubstantiated.” 

 

His commander was well aware (while he was not) that his wife had 
installed spyware on his computer and was monitoring/intercepting 
his private communications. The commander was also aware he had 
filed for divorce and was legally separated from his wife, and 
had been for months. 

 

The commander continued to issue the no-contact orders, and took 
away his beret, his gun, and put him on the “Relieved of Duty” 
squad. 

 

In Nov 09, he was offered an Article 15, which he refused, and 
his command took the usual step of charging him not merely for 
the Nov allegation, but also for the previous incidents for which 
he had already received Article 15 punishment. He was also 
charged with adultery. A court-martial acquitted him of all 
charges and specifications. This included the specification for 
violating the no-contact order for which he had previously been 
punished pursuant to Article 15. 

 


He was subsequently prosecuted, and then acquitted, for the exact 
same offenses for which he previously received an Article 15 – 
and thus did not get the credit he was entitled to under US v. 
Pierce because there is no sentencing proceeding. 

 

The Article 15 should be rescinded and removed from his records, 
for the reasons below: 

 

 -An Article 15 and Courts-Martial are both a part of the same 
process: Article 15 and court-martial proceedings are not 
entirely separate and distinct processes; both are governed by 
the Uniform Code of Military Justice (UCMJ). 

 

 -The validity of the numerous no-contact orders. There were 
many different orders issued, some clearly were not legal and the 
government conceded such at trial, some had to be re-issued 
because the first ones were illegal and the Command, after 
consulting with the legal office, attempted to correct the 
previous deficiencies. The ultimate result was he was acquitted 
of violating the orders. 

 

Even if the Board finds no legal grounds to accord relief, he 
should be restored to his proper rank based upon the inequities 
involved. 

 

In support of his request, the applicant provides an 11-page 
Brief of Counsel, with nine enclosures, his Divorce Petition, 
Excerpted results from the CDI, Interrogatory Responses, a Charge 
Sheet, Article 15 documents, Excerpts from the Record of Trial, 
Excerpted trial testimony, Article 32 testimony, and Article 15 
Set Aside request. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving on active duty in the grade of 
technical sergeant. 

 

On 6 Aug 09, the applicant’s commander offered the applicant, 
then a master sergeant (E-7), NJP under Article 15 of the UCMJ 
for violations of Article 92, for failure to obey a lawful no-
contact order. The order stated the applicant should not have 
contact with a certain female master sergeant. The commander 
issued the order on 9 Jun 09. The applicant was alleged to have 
had contact with the female master sergeant on or about 10 Jul 
09. After consulting with counsel, the applicant accepted the 
Article 15 proceedings and waived his right to demand trial by 
court-martial. He presented written matters to the commander, 
but did not request a personal appearance. On 18 Aug 09, the 
commander found the applicant committed the alleged offense and 
imposed punishment consisting of a suspended reduction to the 
grade of technical sergeant (E-6), 30 days extra duty and 
forfeiture of $1,661.00 pay per month for two months. Part of 


the extra duty and forfeitures were also suspended. The 
applicant did not appeal the commander’s decision and a legal 
review of the Article 15 determined it was legally sufficient. 

 

The applicant was subsequently alleged to have had contact with 
the female master sergeant again on 19 Aug 09, in violation of 
the commander’s 9 Jun 09 no-contact order. On 3 Sep 09, the 
applicant’s commander notified the applicant that he intended to 
vacate the suspended portions of the punishment from the 18 Aug 
09 Article 15 action. On 3 Sep 09, the applicant’s commander 
issued another no-contact order. On 17 Sep 09, the commander 
found the applicant committed the offense, which resulted in 
vacation of the suspended punishment – 15 days extra duty, 
$831.00 pay per month for two months, and reduction to the grade 
of technical sergeant. 

 

On 12 Oct 09, the applicant was alleged to have had contact with 
the female master sergeant. Based on this allegation, the 
applicant’s commander offered the applicant NJP again. The 
applicant declined the NJP and demanded trial by court-martial in 
lieu of NJP. 

 

On 17 Dec 09, the applicant’s commander preferred court-martial 
charges against the applicant. He was charged with two 
specifications of willfully disobeying the lawful order of a 
superior commissioned officer, in violation of Article 90, UCMJ; 
and one specification of adultery, in violation of Article 134, 
UCMJ. The first violation of Article 90 alleged that the 
applicant had received a lawful command from his commander not to 
have contact with the female master sergeant and that the 
applicant had contact with the master sergeant on multiple 
occasions between on or about (o/a) 9 Jun 09 and o/a 9 Jul 09. 
The second violation of Article 90 alleged the applicant had 
received a lawful command from his commander not to have contact 
with the female master sergeant and that the applicant had 
contact with the master sergeant on multiple occasions between 
o/a 11 Jul 09 and o/a 1 Dec 09. The charges and specifications 
were referred to a special court-martial on 18 Sec 09. On 23 Mar 
10, a panel of officer and enlisted members found the applicant 
not guilty of all charges and specifications. 

 

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force at Exhibit B and C. 

 

_________________________________________________________________ 

 

 

 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial of applicant’s request to remove the 
Article 15 from his records. The applicant has not shown a clear 
error or injustice. 

 


The applicant’s main issue raised is the objectionable nature of 
him being found not guilty at the court-martial for the same 
offense for which his commander had previously imposed NJP. The 
applicant sites U.S vs. Gammons, which says that NJP is not 
intended to be “criminal” in nature and, therefore, a prior 
Article 15 is not a complete bar to later prosecution. The 
answer to this problem from the Gammons Court, relying on a prior 
decision, U.S. v. Pierce, is that the accused has the ability in 
the presentencing phase of a court-martial to use the fact of 
previous NJP to argue for a lesser sentence at the court-martial. 
As the applicant points out, though, the applicant did not get 
that opportunity in this case. Since he was acquitted of all 
charges and specifications, the case did not go into the 
presentencing phase. The applicant argues the appropriate remedy 
for this inequity is for the Board to remove the Article 15. 

 

The applicant contends he was charged with the same offense on 
the Article 15 action and at the court-martial. Since he was 
found not guilty of one of the like offenses at trial, at least 
equity requires the Board set aside the Article 15 for the other 
like offense. This argument, though, depends on finding that the 
offenses are indeed the same. 

 

There are slight differences between the specifications included 
in the court-martial charges and the specifications and those 
included in the Aug 09 Article 15 action and the Sep 09 action 
which vacated the suspended punishments. The court-martial 
charges were violations of Article 90 – Willfully Disobeying a 
Superior Commissioned Officer. The charges for the Article 
15 and vacation action were violations of Article 92 – Failure to 
Obey a Lawful Order or Regulation. There is little difference 
between these charges, though, since a violation of Article 92 is 
a lesser included offense of a violation of Article 90. 

 

The bigger issue for comparing the charges is the difference in 
the dates. The court-martial charges covered time frames 
“between o/a 9 Jun 09 and o/a 9 Jul 09” and “between o/a 11 Jul 
09 and o/a 1 Dec 09.” The Article 15 covered “o/a 10 Jul 09” and 
the vacation action covered “o/a 19 Aug 09.” While the date 
charged for vacation action is covered by one of the charged time 
periods from the court-martial charges, the date charged on the 
Article 15 falls exactly between the two time periods included in 
the court-martial charges. 

 

If the Board finds the Article 15 and court-martial charges 
covered the same period, then it can exercise its power of 
clemency and grant the applicant’s request. On the other hand, 
it is important to point out the applicant’s allegation of error 
or injustice in the Article 15 from Aug 2009 relies on the 
findings of the court-martial which took place about seven months 
later. As the applicant points out, there is no evidence of the 
5th Amendment’s prohibition against double jeopardy inherent in 
being convicted at court-martial for the same thing that was 
addressed by an Article 15. The fact that the Article 15 and the 
court-martial charges cover the same offense and same time period 
does not require action by the Board. 

 


The applicant and his defense counsel had the benefit of knowing 
what evidence the commander was considering and also had the 
opportunity to provide the commander additional information about 
the offense. The commander evaluated the evidence and determined 
the applicant had committed the offense. The commander’s 
decision, considering what he knew at the time, was not arbitrary 
or capricious and the applicant’s rights were observed throughout 
the process. Furthermore, just because a different finder of 
fact seven months after the original Article 15 was completed 
could come to a different conclusion than the commander does not 
mean the original Article 15 was in error or represented an 
injustice at the time. 

 

Setting aside an Article 15 action restores the applicant to the 
position held before imposition of the punishment, as if the 
action had never been initiated. Set aside of punishment should 
not routinely be granted. The Article 15 process relies on the 
fact that, when a member accepts an Article 15, the commander 
considering the case exercises largely unfettered discretion in 
evaluating the case, both as to whether punishment is warranted 
and, if so, the nature and extent of punishment. Setting aside 
the Article 15 also sets aside the subsequent vacation action. 

 

He has not raised any genuine doubt as to his guilt of the 
offense for which he was punished or established any error or 
injustice in his Article 15 such that a set aside would be in the 
best interests of the Air Force. 

 

If the Board finds the Article 15 and court-martial charges were 
the same offenses for the same time periods, it may be 
appropriate to grant the applicant’s request. If the Board finds 
the offenses or time period were different, the Board should not 
grant the request. 

 

The complete JAJM evaluation is at Exhibit C. 

 

AFPC/DPSOE reviewed the case and states should the Board grant 
the applicant’s request and set aside the Article 15, his rank 
would be restored to master sergeant with a date of rank (DOR) of 
1 Jul 06. He would not be eligible for supplemental promotion 
consideration for cycles 10E8 and 11E8 as he received a referral 
Enlisted Performance Report (EPR) for period 5 Dec 08 – 4 Dec 09, 
and his subsequent nonreferral report did not close out until 
1 Feb 11 (after the Promotion Eligibility Cutoff Date (PECD) for 
cycle 11E8). 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant’s counsel states the advisory opinion seems to 
concede that “If the Board finds that the Article 15 and the 
court-martial charges were for the same offenses for the same 
periods, then it may be appropriate to grant the applicant’s 
request…” This would seem to end the matter for two 
incontrovertible reasons. 

 


 1) A military judge found, unequivocally at trial, that the 
Article 15 and the court-martial charges were for exactly the 
same time periods and for the exact same charges. Unless this 
Board is going to overturn that ruling and say the military judge 
erred, then that matter has been adjudicated against the 
government already. 

 

 2) The advisory opinion acknowledges that the military judge’s 
decision was right on point with the law – as it has to. There 
is no question that a specification using “on or about” language 
and alleging an offense within one day is, in every jurisdiction 
in the land, “on or about.” The advisory opinion cannot point to 
a single contrary decision because there is not one anywhere. It 
is black letter that the government gets the benefit when it 
alleges “on or about” and can be within weeks or perhaps even 
months and still obtain a conviction, so it cannot try – when it 
is to the accused benefit – to suddenly narrow the “on or about” 
language to a certain date. The military judge pointed this out 
exactly at trial. Therefore, the fact of the matter is that the 
charges were the exact same and the petitioner was entitled to 
relief at trial – and is entitled to relief now – because he was 
acquitted of the exact same offenses for which he previously 
received an Article 15. The government chose to “reset” the 
issue and put the commander’s original Article 15 judgment to the 
scrutiny of a court-martial, they did not have to and could have 
simply charged the ‘new offenses’ – those that they believe 
occurred after the first Article 15. 

 

The applicant is entitled to have the Article 15 and subsequent 
vacation action removed from his record and to restore him to the 
position he was prior to that action. That means that he should 
be a master sergeant – with no Article 15 punishments in his 
record. In light of that, the applicant should be entitled to 
sit for the selection board at which he would have sat, but for 
the Article 15 and offenses of which he has been subsequently 
proven “not guilty” in a court of law. 

 

The counsel’s complete response is at Exhibit E. 

 

_________________________________________________________________ 

 

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 an error or injustice. The 
applicant asserts that the punishment he received under Article 
15 is erroneous due to his later being found not guilty by a 
court martial of charges and specifications that were included in 
the Article 15. However, upon review of all the evidence and 
circumstances, we do not find an error or injustice that would 
warrant granting the applicant’s request. As AFLOA/JAJM points 
out in its advisory; a commanders discretion in evaluating and 
imposing nonjudicial punishment should not be reversed, or 


otherwise changed on appeal, or by the Board absent good cause. 
The applicant has not provided evidence that shows he was not 
accorded all rights to which entitled under the Article 
15 process. The Article 15 was determined to be legally 
sufficient at the time and we are not persuaded that the outcome 
of the subsequent court martial changes this fact. Even if we 
concede that the same charges already settled by the Article 15 
were included in the court martial charges, in our view, since 
the applicant was found not guilty, we do not believe he has been 
harmed to an extent warranting action by this Board. Therefore, 
in the absence of persuasive 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 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 Docket Number 
BC-2011-00654 in Executive Session on 23 Aug and 21 Sep 11, under 
the provisions of AFI 36-2603: 

 

 

 , Panel Chair 

 , Member 

 , Member 

 

 

The following documentary evidence pertaining to Docket Number 
BC-2011-00654 was considered: 

 

 Exhibit A. DD Form 149, dated 14 Jan 11, w/atchs. 

 Exhibit B. Letter, AFLOA/JAJM, dated 12 Apr 11. 

 Exhibit C. Letter, AFPC/DPSOE, dated 3 May 11. 

 Exhibit D. Letter, SAF/MRBR, dated 20 May 11. 

 Exhibit E. Letter, Counsel, dated 25 Aug 11. 

 

 

 

 

 Panel Chair