RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02566 

 COUNSEL: NONE 

 XXXXXXXXXXXXXXXX HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. The Article 15 imposed on him on 6 October 2010 be set aside 
and all rights and privileges be restored. 

 

2. His Enlisted Performance Report (EPR) rendered for the period 
29 August 2009 through 28 August 2010 be voided and permanently 
removed from his record. (Administratively corrected) 

 

3. The non-recommendation for promotion to the grade of technical 
sergeant (E-6) served on him on 16 March 2010 be reversed and 
removed from his record. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The allegations of him having an extra-marital affair and 
disobeying a lawful no-contact order are false, inaccurate, 
unsupported, and blasphemous. 

 

In support of his appeal, the applicant provides a personal 
statement; and, copies of his non-recommendation for promotion 
memorandum; No-Contact Orders; EPRs; character references; 
memorandum for record; certificate of recognition; awards and 
decorations; Performance Feedback Worksheet; notifications of 
referral EPR; rebuttals to referral EPR; Permanent Record of 
Performance Report memorandum; Letters of Evaluation; Army 
Military Police School diploma; and certificates of recognition, 
achievement and appreciation. 

 

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 
senior airman (E-4). 

 

On 16 March 2010, the applicant was non-recommended for promotion 
by his commander for a period of one year for violating a no-


contact order. On 18 October 2010, the applicant received 
Article 15 punishment for disobeying a lawful order in violation 
of Article 92, Uniform Code of Military Justice. He received 
punishment consisting of reduction in grade to senior airman (E-
4) and a reprimand. 

 

On 9 November 2010, the applicant was notified by his rater that 
his EPR rendered for the period 29 August 2009 through 28 August 
2010 was referred. However, the applicant’s acknowledgment of 
receipt was dated 27 September 2010 and his rebuttal to the 
referral EPR was dated 4 October 2010. 

 

On 9 December 2010, the applicant was notified that a “Directed 
by Commander” EPR for the period 29 August 2010 through 
9 December 2010 was referred. 

 

On 22 July 2011, the applicant was notified by AFPC/DPSIDE 
(Superintendant, Air Force Evaluations) that his referral EPR 
closing 28 August 2010 was removed by the Evaluations Report 
Appeal Board (ERAB) as it is in violation of Air Force 
Instruction 36-2406, paragraph 3.9.5.1. DPSIDE indicates the 
referral memorandum was referred to the applicant on 9 November 
2010. The date of the applicant’s rebuttal is recorded as 
4 October 2010, a date which is prior to the date of issuance of 
the referral memorandum, and is thus a procedural violation 
concerning the preparation of the contested report. 

 

On 15 April 2011, the applicant filed an IG complaint with the 
30th Space Wing alleging reprisal by his commander by refusing to 
sign a Command Directed EPR. On 26 April 2011, after conducting 
an analysis of the complaint, the 30th Space Wing Inspector 
General responded to the applicant that he determined there were 
no violations of any laws, policies, instructions, etc.; 
therefore, in accordance with Air Force Instruction 90-301, Table 
2.9, the applicant’s complaint was dismissed. 

 

On 16 May 2011, the applicant filed a Complaint of Wrong under 
Article 138, UCMJ, to the 30th Mission Support Group (General 
Court-Martial Convening Authority), that he was wronged by the 
30th Security Forces Squadron commander by her discretionary 
acts, or acts condoned by her, which violated Air Force 
Instructions, were capricious, an abuse of discretion, and 
clearly unfair by the selective application of standards. The 
14th Air Force Commander responded that after a thorough review 
of his complaint, she found his commander committed no “wrongs” 
under Article 138; therefore, his request for redress was denied. 

 

The remaining relevant facts, extracted from the applicant’s 
service records, are contained in the advisory opinions prepared 
by the Air Force offices of primary responsibility at Exhibits C 
and D. 

_________________________________________________________________ 


 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states that with regard to 
the Article 15 action, the applicant has not shown a clear error 
or injustice. On 6 October 2010, the applicant’s commander 
offered the applicant nonjudicial punishment for failing to obey 
a lawful order not to have contact with a civilian female, in 
violation of Article 92, Uniform of Military Justice (UCMJ). 
After consulting with his assigned military defense counsel, the 
applicant accepted the Article 15 and waived his right to demand 
a trial by court-martial. He presented written matters to and 
personally appeared before the commander who, on 18 October 2010, 
decided the applicant committed the alleged offense. The 
resulting punishment consisted of reduction in grade to senior 
airman (E-4) and a reprimand. The applicant appealed the 
commander’s decision, but that appeal was denied by both the 
commander and the appellate authority. A legal review of the 
Article 15 determined it was legally sufficient. 

 

JAJM indicates that in this case, the applicant protests that he 
did not have an extra-marital affair with the spouse of another 
active duty member. He details how he cannot have committed the 
offense of adultery, a violation of Article 134, UCMJ. He also 
discusses the allegation that his on- and off-duty behavior does 
not adhere to established standards. However, what the applicant 
does not discuss is the single offense with which he was charged 
in the Article 15 action. The Article 15 charge did not allege 
the applicant had committed adultery or even discussed whether 
his on- or off-duty behavior met established standards. The 
allegation on the Article 15 was that: 1) on 17 September 2010, 
his commander issued the applicant a lawful order not to have 
contact with a certain civilian female; 2) the applicant had 
knowledge of that order; 3) the applicant had a duty to obey the 
order; 4) the applicant failed to obey the order by meeting with 
the civilian female between on or about 18 September 2010 and on 
or about 29 September 2010. The applicant’s response to the 
specific allegation of failing to adhere to a lawful no-contact 
order does not address in any way the issue of whether he 
actually met the civilian female during the charged timeframe, 
nor does he provide any evidence to support his contention that 
he did not violate the specific lawful order which was mentioned 
in the Article 15 action. 

 

It is JAJM opinion that there is no error or injustice in the 
Article 15 action such that a set-aside would be in the best 
interests of the Air Force. 

 

The complete AFLOA/JAJM evaluation is at Exhibit C. 

 


AFPC/DPSOE recommends denial of the applicant’s request to remove 
the promotion non-recommendation. DPSOE states the applicant was 
considered and tentatively selected for promotion to the grade of 
technical sergeant during cycle 09E6. He received Promotion 
Sequence Number (PSN) 6569.0 which would have incremented on 
1 June 2010; however, on 6 March 2010, his commander non-
recommended him for promotion. On 18 October 2010, the applicant 
received an Article 15 for disobeying a lawful no-contact order. 
His punishment consisted of a reduction in grade to senior airman 
with a new date of rank of 18 October 2010, and a reprimand. He 
also received referral EPRs for the period 29 August 2009 
thru 28 August 2010, and 29 August 2010 thru 9 December 
2010. The ERAB approved removal of the 28 August 2010 report. 

 

DPSOE indicates the applicant’s commander was in the best 
position to evaluate the applicant’s potential and eligibility 
for promotion; and acted within his authority when he decided to 
non-recommend the applicant for promotion to technical sergeant. 

 

The complete AFPC/DPSOE evaluation is at Exhibit D. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Upon review of the advisory opinions related to his request, he 
finds some inaccuracies and misunderstandings of the 
interpretation of his complaints and the information he has 
provided. 

 

In regard to the DPSOE evaluation, he states that paragraph 4 of 
the nonrecommendation memorandum fails to comply with AFI 36-2502 
by providing vague details of the reason for the demotion, and 
referring to alleged evidence, which he outlined in his 
submission to be falsified and corrupt. The applicant also 
indicates that as much as the actions taken against him are 
technically within the authority of the commander, he disagrees 
that a commander is in the best position to evaluate the 
potential and eligibility for promotion of an enlisted member. 

 

In regard to the JAJM evaluation, he believes their initial 
recommendation is based on an inaccurate analysis of the 
information provided. In response to the statement that his 
appeal was denied by his commander and the appellate authority, 
he contributes this to a broken and unjust legal system as it is 
currently operated. The applicant provided his point by point 
rebuttal to each paragraph in the “Discussion” section of the 
advisory. In regards to the recommendation made to deny his 
request, he does not feel the recommendation or advisory opinion 
of the reviewer is a direct reflection of the correct paperwork 
associated with the matters for which he provided review. He 
believes that a more thorough review of the correct arguments and 


matters pertaining directly to the area he chose to access “would 
result in a different opinion if the opinion was in response to 
the correct documentation for the matters reviewed by this 
section.” 

 

In response to the advisory provided by AFPC/DPSIDE on the 
removal of the contested performance evaluation, he states that 
though the matters associated with the decision reached were not 
directly related to the material provided in his request, they 
are still factors which he pointed out to his commander in a 
formal request for redress, which she chose to disregard. He is 
happy with the outcome of this portion of his request. 

 

The applicant’s complete rebuttal is at Exhibit F. 

 

_________________________________________________________________ 

 

THE BOARD DETERMINES 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 reviewing 
the complete evidence of record and circumstances of this case, 
we are not persuaded that the commander’s action nonrecommending 
the applicant for promotion was in error or constituted an 
injustice. The applicant argues that the commander’s action did 
not comply with the governing instruction, AFI 36-2502. However 
based on our review of AFI 36-2502 and the nonrecommendation 
letter, we believe the letter meets the intent of the 
instruction. While the applicant may or may not have had an 
extra-marital affair, we believe his violation of the no contact 
order was sufficient for the action. In that regard, the letter 
specifically lists this as a reason and gives specific dates of 
occurrences. Although the applicant expresses the view the 
commander was not in the best position to determine if he should 
be promoted, we note this is an inherent responsibility of the 
commander’s position and we are not persuaded by the evidence 
submitted that the commander’s action was arbitrary or capricious 
or outside her discretionary authority. The applicant also 
requested this board remove the referral EPR rendered on him for 
the period 29 August 2009 through 28 August 2010. However, due 
to technical deficiencies, this report has been removed by the 
ERAB. As such, no action is required on this issue. Finally, 
the applicant requests the Article 15 imposed on him be set aside 
stating the action was only found legally sufficient because of a 
broken and unjust legal system. Notwithstanding the applicant’s 
view, we find insufficient evidence that the applicant was denied 
any rights entitled to under the Article 15 process, to include 


his right to demand trial by court martial which would have 
required a different legal standard for his conviction. By 
accepting the Article 15 forum, the applicant entrusted to his 
commander the responsibility to decide if he had committed the 
alleged offenses. We do not find the commander abused her 
discretionary authority or that her action was arbitrary or 
capricious. We considered the extenuating circumstances the 
applicant raised regarding his pending divorce and the dire 
financial straits in which he found himself. We also note his 
exceptional record of performance. Nevertheless, we do not find 
the commander’s actions holding him accountable for his 
misconduct to be unreasonable. We note the applicant filed a 
formal complaint with the IG and also a complaint under Article 
138, UCMJ, against his commander. No acts of wrong doing by his 
commander were substantiated in either case. Therefore, although 
we find the circumstances of this case regrettable, we do not 
find a basis to recommend granting the relief sought and must 
recommend that all requests, with the exception of the 
administrative removal of the EPR, be denied. 

 

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 issues 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-
2011-02566 in Executive Session on 12 October 2011, under the 
provisions of AFI 36-2603: 

 

 XXXXXXXXXXXXXXXXXXXX, Panel Chair 

 XXXXXXXXXXXXXXXXXXXX, Member 

 XXXXXXXXXXXXXXXXXXXX, Member 

 


The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2011-02566: 

 

 Exhibit A. DD Form 149, dated 27 Jun 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 15 Aug 11. 

 Exhibit D. Letter, AFPC/DPSOE, dated 18 Aug 11. 

 Exhibit E. Letter, SAF/MRBR, dated 2 Sep 11. 

 Exhibit F. Letter, Applicant, dated 20 Sep 11. 

 

 

 

 

 XXXXXXXXXXXXXXXXXX 

 Panel Chair