RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-01549 

 COUNSEL: NONE 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. The Article 15s for adultery and assault and all punishment 
related to the record be removed from his military records. 

 

2. The action vacating the suspended punishment for the second 
Article 15 and all punishment related to the record be removed 
from his military records. 

 

3. All records of military protective orders for incidents 
between he and his spouse, as well as, the letter stating his 
entrance into the Department of Defense (DoD) Central Registry 
for emotional abuse be removed from his military records. 

 

4. He be reinstated back into the Air Force, if the Board grants 
his requests. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. His Article 15 for adultery was unjust because the adulterous 
conduct did not meet all elements to constitute an offense of 
crime under the Uniform Code of Military Justice (UCMJ). 

 

2. The vacation action was unjust because he believed his 
supervisor had excused him from work. 

 

3. Prior to being discharged, he was attending counseling for 
domestic abuse in a program offered through the Family Advocacy 
Program at Dover AFB, DE. He successfully completed 17 of the 
26 required classes. 

 

In support of his request, the applicant provides a personal 
statement, copies of letters of argument on his behalf, a 
doctor’s note, certificate of completion for domestic abuse 
classes, an excerpt of Article 134, Uniform Code of Military Justice (UCMJ) and other documentation in support of his 
request. 

 

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

 

_________________________________________________________________ 

 


STATEMENT OF FACTS: 

 

On 22 Oct 07, the applicant enlisted in the Regular Air Force. 

 

On 23 Feb 11, the applicant was notified of his commander’s 
intent to recommend he be discharged from the Air Force under 
the provisions of AFPD 36-32, Air Force Military Training and 
AFI 36-3208, Administrative Separation of Airmen, paragraph 
5.50.2, A Pattern of Misconduct, specifically, Conduct 
Prejudicial to Good Order and Discipline. 

 

The specific reasons for this action were: 

 

On or about 1 Jan 09 and on or about 31 Mar 09, the applicant 
wrongfully had sexual intercourse with Ms. G, a woman not his 
wife in violation of Article 134, UCMJ. For this misconduct, he 
received a reduction to the grade of airman first class (E-3), 
forfeiture of $250 pay per month for two months, and 20 days 
extra duty. The reduction was suspended until 22 Feb 11, at 
which time it was to be remitted without further action, unless 
sooner vacated. 

 

On or about 4 Dec 10, the applicant violated Article 128, UCMJ 
when he unlawfully shoved airman first class O in the chest with 
his hand, punched her in the face and unlawfully threw her to 
the ground by pulling on her hair. Also, he violated Article 
134, UCMJ by being disorderly, which conduct was of a nature to 
bring discredit upon the armed forces. For this misconduct, he 
received reduction to the grade of airman (E-2) with a reduction 
below E-3 suspended until 21 Jun 11 and forfeiture of $500 pay 
per month for two months. 

 

On or about 19 Jan 11, the applicant violated Article 86, UCMJ 
when he without authority, failed to go at the time prescribed 
time to his appointed place of duty. For this misconduct, the 
suspension of his reduction in rank to E-2 was vacated on 
3 Feb 11. 

 

On 4 Mar 11, the Staff Judge Advocate recommended to the Wing 
Commander that the applicant be discharged and issued a general 
discharge without probation and rehabilitation. On 8 Mar 11, 
the discharge authority approved the applicant’s discharge. On 
22 Mar 11, the applicant was discharged from the Air Force with 
a general (under honorable conditions) discharge in the grade of 
airman. He served three years, five months and 1 day of total 
active service. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial of his request to remove the 
military justice actions from his records. JAJM states the 
applicant claims injustice in the 23 Aug 10 Article 15 action 


because he says his conduct did not meet all of the elements to 
constitute an offense under the UCMJ. The elements of the 
offense are: 1) the accused wrongfully had sexual intercourse 
with a certain person; 2) at the time, the accused or the other 
person was married to someone else; 3) under the circumstances, 
the conduct of the accused was to the prejudice of good order 
and discipline in the armed forces or was of a nature to bring 
discredit upon the armed forces. The applicant does not dispute 
the first two elements, but says his conduct does not rise to 
the level of being prejudicial to good order and discipline or 
service discrediting. In the applicant’s case, he had an affair 
while he was still married to his wife and a child was born of 
that affair. Both the applicant’s wife and members of the 
applicant’s unit knew about the affair and child, since the 
applicant signed a voluntary acknowledgement of paternity. An 
actual paternity test later showed that the applicant is the 
father of the child. Furthermore, the applicant’s wife later 
took evidence of the applicant’s continuing relationship with 
the woman to the applicant’s first sergeant. 

 

The applicant was afforded all his procedural rights during the 
Article 15 action. Most importantly, the applicant had the 
opportunity to turn down the Article 15 and demand court-
martial. By not doing so, the applicant agreed that the 
commander would be the one to decide whether he committed the 
offense and, if so, what would be the appropriate punishment. 
The evidence in the applicant’s case is sufficient to find 
either prejudice to good order and discipline or discredit to 
the service. By so finding, the applicant’s commander did not 
act in an arbitrary or capricious manner. The Board should not 
overturn the commander’s decision since the commander was the 
one in the best position to evaluate the applicant’s offense 
against the good order and discipline of the applicant’s unit. 

 

The applicant claims injustice in regard to the 
22 Dec 10 Article 15 action and the action that served to vacate 
the suspended punishment from that Article 15 action. The 
applicant did not provide any justification for why there was 
error or injustice in the 22 Dec 10 Article 15 action and a 
review of the Article 15 does not show any error or injustice. 
The applicant was afforded all his procedural rights during the 
proceedings. He took advantage of his rights to counsel and 
provide a written response to his commander. He also made a 
personal presentation to his commander in the Article 15 action. 
The commander considered the applicant’s submissions and 
properly informed the applicant of his decision. The applicant 
had the opportunity to appeal the Article 15 action and the 
action underwent legal review at two different levels, as 
required by AFI 51-202, Nonjudicial Punishment. 

 

The applicant alleges injustice in the underlying offense which 
resulted in the vacation of his suspended punishment from the 
22 Dec 10 Article 15 action. The applicant was accused of 
failure to go to his place of duty on 19 Dec 10. The applicant 


relies on a statement from his supervisor to show that he was 
excused for the day in question. A review of the supervisor’s 
statement shows, though, that: 1) the applicant missed all or 
part of both 19 and 20 Dec 10; and 2) that the applicant was not 
excused for at least one of those days. The supervisor seems to 
indicate that the applicant may have been excused from work on 
19 Dec 10 for a sick child, but not for a trip to the courthouse 
which is what he actually did that day according to his own 
admission. When the applicant did not go to work on 
20 Dec 10 (also for a sick child), the supervisor called the 
applicant back into work for an explanation. 

 

The evidence presented is sufficient for the commander to have 
found that the applicant committed the offense. Just as with 
the two Article 15 actions, the commander was in the best 
position to evaluate all of the evidence before making a 
decision and the Board should not overturn that decision 
lightly, especially considering that a little over a month ago, 
the applicant was making the same argument to his commander that 
he is now making to the Board. 

 

The complete JAJM evaluation is at Exhibit C. 

 

HQ AFPC/DPSOS recommends denial of his request for 
reinstatement. DPSOS states based on the documentation on file 
in the master personnel records, the discharge was consistent 
with the procedural and substantive requirements of the 
discharge instruction and was within the discretion of the 
discharge authority. There was no error or injustice in the 
applicant’s discharge from the Air Force, nor did the applicant 
submit any evidence or identify any error or injustices in the 
discharge processing. 

 

The complete DPSOS evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 19 Aug 11 for review and comment within 30 days 
(Exhibit E). As of this date, this office has not received a 
response. 

 

_________________________________________________________________ 

 

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. We took notice 
of the applicant’s complete submission in judging the merits of 
the case; however, we agree with the opinions and 
recommendations of the Air Force offices of primary 
responsibility and adopt their rationale as the basis for our 
conclusion the applicant has failed to sustain his burden of 
proof of the existence of an error or injustice. Absent 
evidence the applicant was denied rights to which entitled, 
appropriate regulations were not followed, or appropriate 
standards were not applied, we find no basis to disturb the 
existing record. In view of the above, and 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 AFBCMR Docket 
Number BC-2011-01549 in Executive Session on 4 October 2011, 
under the provisions of AFI 36-2603: 

 

 Panel Chair 

Member 

 Member 

 

 

 

 

 

 

 

 

 

 

 


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-01549 was considered: 

 

 Exhibit A. DD Form 149, dated 27 March 2011, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. AFLOA/JAJM, Letter, dated 23 May 2011 

 Exhibit D. AFPC/DPSOS, Letter, dated 1 August 2011. 

 Exhibit E. SAF/MRBR, Letter, dated 19 August 2011. 

 

 

 

 

 

 Panel Chair