RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00944 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His nonjudicial punishment (NJP) action received on 19 Oct 10, 
under Article 15, Uniform Code of Military Justice (UCMJ) be set 
aside and removed from his records. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The evidence supporting the allegations against him is all 
circumstantial and the video surveillance tapes do not actually 
show him removing or replacing any stickers. He was advised by 
his Area Defense Counsel (ADC) to accept the Article 
15 punishment instead of court martial. He did not know this 
would establish a Federal Bureau of Investigations (FBI) file. 

 

He worked directly for his newly appointed group commander for 
six months, and they did not get along. 

 

He retires on 1 Apr 11, and if future employers run a background 
check, an FBI file will be present. This will disqualify him for 
employment. 

 

He has not been in any trouble for the past 20 years. 

 

In support of his request, the applicant provides documents 
pertaining to his Article 15. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 4 Sep 10, while serving on active duty the applicant purchased 
two items from the Base Exchange (BX). When the applicant 
presented one of the items, a barbeque grill, to the cashier it 
bore several BX stickers indicating it was reduced in price, one 
of them yielding a 75 percent discount. Store surveillance 
cameras showed the applicant putting the grill in his shopping 
cart and then proceeding to another area of the store, where he 
picked up a printer ink cartridge that bore a 75 percent discount 
sticker. The applicant progressed through other aisles in the 


store and later placed the printer cartridge box on a shelf in an 
aisle of toys. The tape showed the applicant making his purchase 
and then leaving the store. Although he left the grill’s box 
behind when he loaded it into his car, the discount stickers 
present on it at the time of checkout were no longer there. 

 

On 5 Sep 10, the applicant was contacted by a security forces 
investigator and asked about his BX purchase. The applicant 
declined to exercise his rights to remain silent and provided a 
written statement in which he admitted to purchasing the grill 
for a 75 percent discount and picking up, but discarding without 
purchasing, an ink cartridge. He specifically denied removing or 
replacing any discount stickers. He also claimed that an unnamed 
BX employee said they had just reduced the price on the item that 
day. 

 

On 19 Oct 10, the applicant’s commander offered the applicant NJP 
for making a false official statement in violation of Article 
107, UCMJ, and for larceny of the unpaid discounted portion of 
the grill in violation of Article 121, UCMJ. 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 make a 
personal appearance. On 26 Oct 10, the commander decided he 
committed the alleged offense and imposed punishment consisting 
of a suspended reduction to the grade of technical sergeant, 
forfeiture of $500.00 pay, and a reprimand. The applicant 
appealed the commander’s decision and provided matters in 
writing. Both his commander and the appellate authority denied 
his appeal, and his commander decided the action would not be 
filed in his SNCOSR. A legal review of the Article 15 determined 
it was legally sufficient. 

 

_________________________________________________________________ 

 

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 was given all of his rights 
throughout the process. He was able to present matters (with the 
assistance of legal counsel) to the commander for consideration 
before imposition of punishment. He was able to appeal the 
decision of his commander. The commander was in the best 
position to carefully weigh all of the evidence, make informed 
findings of fact, and arrive at a suitable punishment. The 
punishment imposed was appropriate to the offense and not 
unfairly harsh. 

 

The applicant is in error in stating that the absence of direct 
video evidence showing his alleged sticker-swapping offenses is 
proof that they were not committed at all. Circumstantial 
evidence of an offense is still evidence, and in the applicant’s 


case there appears to be little question as to the reliability of 
the circumstantial evidence pointing to his guilt. 

 

A commander in considering a case for disposition under Article 
15 exercises largely unfettered discretion in evaluating the 
case, both as to whether punishment is warranted and, if so, the 
nature and extent of punishment. The exercise of that discretion 
should generally not be reversed or otherwise changed on appeal 
or by the Board absent good cause. 

 

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. 

 

The complete JAJM evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The alleged incident occurred on 4 Sep 10 at 15:14:39 and 
security forces was not notified until 5 Sep 10 at 15:50, by 
telephone, over 24 hours later. The Security Forces Squadron has 
not produced the video showing that he swapped the sticker as 
they claimed. He was charged with lying which established an FBI 
record. If a potential employer should run a background check a 
record will be present, which will disqualify him and this is 
unfairly harsh. If he is accused of lying to the security 
forces; they should have to produce the video showing he swapped 
the sticker. He is retired and cannot find work to feed his 
family because of his FBI record. His security clearance is also 
in jeopardy. His integrity has always been unquestionable and 
the fact is, he did not commit this crime. 

 

He was told that the AFBCMR could review the video tape and check 
if it had been altered; however, he does not have a copy of it. 
He picked up a grill and ink cartridge and later placed the ink 
cartridge on another shelf because he could not remember the 
printer model number. The security manager said he stayed in 
aisle B34 for approximately one minute on surveillance video; but 
he neglected to mention the distance between both aisles, and the 
fact he was pushing a cart with a 50 pound grill in it. The 
security manager stated there was a 75 percent discount sticker 
on the ink cartridge, but the cashier said that a 25, 50 and 
75 percent sticker was on the grill. The cartridge he picked up 
did not have a discount sticker, so he could not have swapped the 
sticker. He did not tell the cashier that a lady told him the 
grill was on sale; rather he said a lady over the intercom said 
the grill was on sale. He asked the cashier to verify the price 
on the grill, and the cashier said “no I believe you.” The grill 
would not fit in his car, so he had to rip the box to get the 
grill out. The discount sticker must have been removed in the 


process. He discarded the box in front of the BX next to a trash 
can. 

 

The applicant’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 error or injustice. After 
thoroughly reviewing the documentation submitted in support of 
his appeal, we do not believe he has suffered from an injustice. 
Evidence has not been presented which would lead us to believe 
that the nonjudicial punishment, imposed on 26 Oct 10 was 
improper. In cases of this nature, we are not inclined to 
disturb the judgments of commanding officers absent a strong 
showing of abuse of discretionary authority. We have no such 
showing here. The evidence indicates that, during the processing 
of this Article 15 action, the applicant was offered every right 
to which he was entitled. He was represented by counsel, waived 
his right to demand trial by court-martial, and submitted written 
matters for review by the imposing commander. After considering 
the matters raised by the applicant, the commander determined 
that the applicant had committed the offense alleged and imposed 
punishment on the applicant. The applicant has not provided any 
evidence showing that the imposing commander or the reviewing 
authority abused their discretionary authority, that his 
substantial rights were violated during the processing of the 
Article 15 punishment, or that the punishment exceeded the 
maximum authorized by the UCMJ. Additionally, the applicant 
requests the Board review a video tape to see if it has been 
altered; however, he has not provided a copy of the video tape. 
The Board by law is a function of the Secretary of the Air Force 
acting through panels of Civilians of the Department to correct 
an error or injustice; when necessary; however, the Board is not 
an investigative body and this request is not within the purview 
of the Board. AFI 36-2603, Air Force Board for Correction of 
Military Records which governs the AFBCMR process states “the 
applicant has the burden of providing sufficient evidence of 
probable material error or injustice.” Therefore, based on the 
available evidence of record, we find no basis upon which to 
favorably consider this application. 

 

_________________________________________________________________ 

 

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-2011-00944 in Executive Session on 21 Jul 11, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 16 Feb 11, w/atchs. 

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

 Exhibit C. Letter, SAF/MRBR, dated 22 Apr 11. 

 Exhibit D. Letter, Applicant, dated 9 May 11, w/atch. 

 

 

 

 

 Panel Chair