RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-01280 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

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

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

She was punished via an Article 15, UCMJ, for allegedly being 
drunk on duty on or about 16 Oct 10, in violation of Article 
112 of the UCMJ. 

 

The evidence attached to her Article 15 alleges at the time of 
the offense, she was “on-call” and that, while on-call, she was 
arrested upon suspicion of driving under the influence (DUI). 

 

There was no evidence to suggest that she was ever recalled from 
on-call status. The facts, as the government has alleged them, 
make it impossible for her to be guilty of violating Article 112. 
Specifically, one of the elements of Article 112 is that the 
accused be “on-duty.” The President specifically limited the 
scope of Article 112 to not include those periods where a member 
is not on the installation or on detail being tasked to perform 
actual military duties. Therefore, as a matter of law, it is 
impossible for her, who was merely on-call, to be considered “on-
duty.” She could not have been considered “on-duty” for Article 
112 purposes unless she was actually recalled and tasked. 

 

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

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant was accused of driving under the influence (DUI) 
during a time period when she had been placed on the On-Call 
Military Dog Handler schedule. As a result, on 15 Nov 10, the 
applicant’s commander offered the applicant NJP under Article 15, 
UCMJ. She was charged with one specification of being found 
drunk while on duty as an on-call military working dog handler, 
in violation of Article 112, UCMJ. After consulting with 


counsel, the applicant accepted the Article 15, and waived her 
right to demand trial by court-martial. She opted not to present 
written matters or to make a personal appearance before the 
commander. On 18 Nov 10, the commander decided she committed the 
alleged offense and imposed punishment consisting of a reduction 
to the grade of senior airman (E-4) and 15 days of extra duty. 
The applicant appealed the commander’s decision, but her appeal 
was denied by the commander and the appellate authority. 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 her records. The applicant has not shown a clear 
error or injustice. The applicant was under an order from a 
superior authority to execute a military duty – being on-call in 
case she was needed for military working dog duties. The fact 
the unit allowed the applicant to spend her on-call time away 
from the base does not take away from the fact of her duty. The 
applicant was not in a status of leisure where she could be 
considered “off-duty” or “on liberty.” Quite logically, if the 
applicant’s status is not entirely “off duty” or “on liberty,” it 
must be “on-duty.” 

 

There are two things of importance with regard to the applicant’s 
Article 15. First, the applicant chose to have her commander 
evaluate the evidence and the charged offense. She could have 
made the case that she’s now making to the Board to the commander 
before he decided to impose punishment. Instead, she opted not 
to submit written matters and she did not make a personal 
appearance. Based on the attachments to the application, it 
appears the first mention of this issue to the commander was in 
the submission of the applicant’s defense counsel upon appeal of 
the commander’s decision. Second, the applicant has not 
contested the fact of being drunk, which is the other element to 
the offense with which she was charged. It does not appear there 
is any question that the applicant was drinking the night in 
question. It is not uncommon in units such as the applicant’s to 
have a written policy regarding drinking while on-call. 
Additionally, many specialties in the Air Force (such as aircrew) 
have written policies about drinking within a certain number of 
hours of duty. There is no evidence whether this is the case 
here, but in such a case, the applicant’s commander could also 
have charged the applicant with dereliction of duty or violation 
of a lawful order, in violation of Article 92, UCMJ. 

 

The commander was in the best position to weigh the facts of the 
applicant’s case against the elements of the offense and come up 
with an appropriate decision in the case. The applicant has not 
raised any genuine doubt as to her guilt of the offense for which 
she was punished or established any error or injustice in her 
Article 15 action such that a set aside would be in the best 
interests of the Air Force. Based on the evidence presented in 
the case, the commander was clearly not acting in an arbitrary or 


capricious manner when he found NJP appropriate in this case. 
The punishment imposed was appropriate to the offense and not 
unfairly harsh. 

 

The complete JAJM evaluation is at Exhibit B. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

On 27 May 11, a copy of the Air Force evaluation was forwarded to 
the applicant for review and comment within 30 days. To date, a 
response has not been received (Exhibit C). 

 

_________________________________________________________________ 

 

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 
the applicant’s appeal, we do not believe she has suffered from 
an injustice. Evidence has not been presented which would lead 
us to believe that the nonjudicial punishment, imposed on 18 Nov 
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 she was entitled. She was represented by counsel, 
waived her right to demand trial by court-martial, and opted not 
to submit 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 her substantial rights were violated during the processing 
of the Article 15 punishment, or that the punishment exceeded the 
maximum authorized by the UCMJ. 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-2011-01280 in Executive Session on 5 Jan 12, under the 
provisions of AFI 36-2603: 

 

 , Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, undated, w/atchs. 

 Exhibit B. Letter, AFLOA/JAJM, dated 18 May 11. 

 Exhibit C. Letter, SAF/MRBR, dated 27 May 11. 

 

 

 

 

 

 Chair