RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02911 

 COUNSEL: NONE 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. The Record of Nonjudicial Punishment (NJP), imposed on 2 Oct 
08, pursuant to Article 15, Uniform Code of Military Justice 
(UCMJ), be set aside and all associated documentation be removed 
from her records. 

 

2. The AF IMT 707B, Company Grade Officer Performance Report 
(OPR) (2LT Thru Capt), rendered for the period 2 Mar 08 through 
15 Nov 08, be declared void and removed from her records. 

 

3. Adverse information associated to the Article 15 be removed 
from her Officer Selection Record (OSR). 

 

4. She be considered for a Special Selection Board (SSB) for 
promotion to the grade of major (0-4). 

 

5. She be considered for an Intermediate Development Education 
(IDE) slot. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The issuing authority of the Article 15 did not anticipate the 
consequences and supports a set aside of the Article 15. 

 

Had she known the General would have supported a set aside while 
she was on active duty, she would have appealed to him in 
writing and stayed on active duty; however, he previously made 
it clear in their Jan 09 meeting that he would not set aside the 
Article 15 while Lt Gen P. was still his commander. Therefore, 
she did not appeal to him in writing for a set aside, nor did 
she appeal to have the Article 15 removed from her OSR once he 
informed her that she had not been promoted. 

 

Had she been aware the General would have supported a set aside, 
despite what he told her in their meeting, she would have 
appealed and the Article 15 would not have remained in her OSR; 
she would have remained on active duty and been given fair 
consideration for promotion and IDE. 

 

The NJP resulted in her nonselection to promotion and transfer 
from active duty to the Reserves. 


The Article 15 and related adverse documentation in her records 
and the resulting negative impact on her Air Force career is 
erroneous and an injustice. 

 

She understands that she does not have an automatic right to 
appear before the Air Force Board for Correction of Military 
Records (AFBCMR), however, she believes a review of her 
submitted documentation and a personal appearance will clearly 
establish the merits of her claim. 

 

In support of her request, the applicant provides copies of her 
DD Form 214, Certificate of Release or Discharge from Active 
Duty; AF Form 3070C, Record Of Nonjudicial Punishment 
Proceedings, Memo of Mitigation, a letter from her attorney, 
Referral OPR and her response, requests to void OPR, non-
selection to 0-4, Evaluation Reports Appeal Board’s (ERAB) 
decision, online posting of non-selection to 0-4, Divorce 
Agreement, numerous electronic communiqués, character 
references, Letters of Appreciation, her OSR, to include OPRs, 
decorations, and school evaluations. 

 

The applicant's complete submission is at Exhibit A. 

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving in the Air Force Reserves in 
the grade of captain, having assumed the grade effective with a 
date of rank of 30 May 05. She was considered and not selected 
for promotion by the P0409A (2 Nov 09) major central selection 
board. 

 

On 2 Oct 08, the applicant's commander offered her nonjudicial 
punishment for fraternizing with an enlisted person in violation 
of Article 134, UCMJ. She accepted the Article 15 and presented 
matters to her commander. 

 

On 17 Oct 08, the commander decided she committed the alleged 
offense and imposed punishment. The applicant appealed the 
commander's decision and provided matters in writing; she also 
asked the commander not to place the Article 15 in her OSR. 
Both her commander and the appellate reviewing authority denied 
the applicant's appeal and decided that the action should be 
filed in the applicant's OSR. 

 

On 22 Oct 08, the applicant appealed the action to the imposing 
commander and to the appeal authority. She also submitted 
written matters to the commander regarding his decision about 
her OSR. The applicant's civilian defense counsel submitted a 
memorandum in support of the applicant's appeal. The defense 
counsel argued that the Article 15 was not legally supported by 
the evidence. Her appeals were denied. On 31 Oct 08, the 
Article 15 action was found to be legally sufficient. 


 

The following is a resume of the applicant’s performance 
profile: 

 

Period Ending Performance Factor 

 

 6 Jul 10 Meets Standards 

 11 Jan 10 Meets Standards 

 21 Jun 09 Meets Standards 

* 15 Nov 08 Does Not Meet Standards 

 1 Mar 08 Meets Standards 

 1 Mar 07 Meets Standards 

 17 Apr 06 Meets Standards 

 29 Apr 05 Meets Standards 

 7 May 04 Meets Standards 

 7 May 03 Meets Standards 

 31 May 02 Meets Standards 

 

*Contested Report 

 

The applicant separated from the Regular Air Force on 13 Aug 10, 
and transferred to the Air Force Reserves on 14 Aug 10. 

 

The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force offices of 
primary responsibility, which are attached at Exhibits C, D, E, 
F, and G. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial of her request to remove the Article 
15 and states, in part, nonjudicial punishment is authorized by 
Article 15, UCMJ (10 U.S.C. § 815), and governed by the Manual 
for Courts-Martial (Part V) and AFI 51-202, Nonjudicial 
Punishment. A commander considering a case for disposition under 
Article 15 exercises personal discretion in evaluating the case, 
both as to whether nonjudicial punishment is appropriate, and, if 
so, as to the nature and amount of punishment. This procedure 
permits commanders to dispose of certain offenses without trial 
by court-martial unless the service member objects. Service 
members first must be notified by their commanders of the nature 
of the charged offenses, the evidence supporting the offenses, 
and the commander's intent to impose the punishment. The member 
may consult with a defense counsel to determine whether to accept 
the nonjudicial punishment or demand trial by court-martial. 
Accepting the proceedings is simply a choice of forum; it is not 
an admission of guilt. Nonjudicial punishment is also not, when 
imposed, a criminal conviction. 

 

The applicant's argument that lesser administrative action would 
have been more appropriate is not supported by her application. 
A commander may dispose of allegations against a service member 


in a number of ways, including no action, administrative action, 
nonjudicial punishment or trial by court-martial. The 
commander's decision to deal with the applicant's offense in an 
Article 15 was clearly within the scope of his authority. 
Furthermore, the imposing commander, Major General F., said in 
his memorandum to the Board that, even in hindsight, he would 
still offer the applicant an Article 15. 

 

The applicant also argues that a set aside of her Article 15 is 
appropriate because of the extenuating and mitigating 
circumstances surrounding the incident, as well as the extreme 
and far-reaching nature of the collateral consequences of the 
Article 15. A set aside of nonjudicial punishment restores the 
member to the position held before imposition of the punishment, 
as if the action had never been initiated and should be used 
strictly in the rare and unusual case where a genuine question 
about the service member's guilt arises or where the best 
interests of the Air Force would be served. 

 

The applicant's admits that she engaged in an inappropriate email 
and phone relationship with an enlisted member and that she 
kissed him goodbye at the airport. The interests of the Air 
Force are not served by setting aside an Article 15 which 
properly documents the misconduct committed by the applicant. 
The applicant's case, although compelling, is not strong enough 
to support a set aside of her Article 15. 

 

The complete AFLOA/JAJM evaluation is at Exhibit C. 

 

HQ AFPC/DPSID recommends denial to remove the contested report. 
DPSID states the applicant did file an appeal through the ERAB 
under the provisions of AFI 36-240l, Correcting Officer and 
Enlisted Evaluation Reports; however, the ERAB was not convinced 
that the report was unjust or inaccurate and denied the 
applicant’s request for relief. 

 

The complete AFPC/DPSID evaluation is at Exhibit D. 

 

HQ AFPC/DPAPFE makes no recommendation and states the member will 
not be competitive for IDE with derogatory data in her records. 
If the applicant’s request is approved, she will have to seek 
developmental education through the US Reserves Component in 
accordance with AFMAN 36-8001, Reserve Personnel Participation 
and. Training Procedures. The applicant may also earn “IDE 
Select” status if she is given an opportunity to meet a SSB. 

 

The complete AFPC/DPAPFE evaluation is at Exhibit E. 

 

HQ AFPC/DPSOO recommends denial of the applicant’s request for 
SSB consideration. DPSOO states their evaluation of the 
applicant’s request requires they rely on the advisory opinions 
from the Air Force Office of Primary Responsibility (Exhibits C 
and E). As such, based on their recommendations to deny 


removing the Article 15 and OPR, they recommend denial for SSB 
consideration. 

 

The complete AFPC/DPSOO evaluation is at Exhibit F. 

 

HQ AFPC/PB recommends denial of her request to remove her Article 
15 retroactively from her OSR. PB states that AFI 36-2608, Article 15, Record of Nonjudicial Punishment Procedures, Chapter 
8 establishes procedures for filing the Article 15 into the OSR 
as well as removal/early removal procedures. Paragraph 8.2., 
specifically states the decision to file the NJP is subject to 
review by the next senior Air Force commander. The review 
authority may either concur or nonconcur with the commander 
imposing the NJP and this decision is final. The AFI also 
states, the NJP will not be removed until receipt of an approved 
request for its removal or early removal is approved by the 
appropriate authority. Unless requested under the early removal 
as an exception to policy the removal will not be processed until 
the officer is afforded one In the Promotion Zone (IPZ) or Above 
the Promotion Zone (APZ) consideration. 

 

The complete AFPC/PB evaluation is at Exhibit G. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant states the purpose of her appeal is to first 
establish the appropriate authority to determine the best 
interest of the Air Force and the opinion of that authority, 
which was not addressed in any advisory. Second, to establish 
the arbitrary nature of the punishment, as deemed by the issuing 
authority. Finally, to provide additional supporting evidence 
generated since the initial submission of her request. She 
further expounds on the aforementioned statements in her 
rebuttal (Exhibit I). 

 

The applicant refers to the JAJM advisory, dated 8 Sep 11, and 
states JAJM asserts that "claims of error or injustice are not 
compelling enough to warrant action by the Board with regard to 
Article 15 action" because the commander was within the scope of 
his authority. She argues that the scope of the commander’s 
authority also allows him to set aside the punishment. JAJM 
focuses on the second paragraph of his 11 Apr 11 letter and 
ignores the third paragraph where Major General F. clearly 
states his support of a set aside of his punishment for the good 
of the Air Force. He states, "More than anyone I ever met in my 
32 years in the Air Force (Capt L) deserves another chance ... 
do what I think is the right thing by recognizing that the 
system is not perfect and set aside the Article 15." 

JAJM further states that a set aside is to be used "where the 
best interests of the Air Force would be served." The applicant 
asks, “Who better to determine whether or not a set aside is in 
the best interest of the Air Force than the imposing commander?” 


She states the same commander has submitted a second letter to 
the AFBCMR in support of granting her appeal. 

 

She states that her level of commitment, personal character and 
strong work ethic should outweigh a onetime lapse in judgment 
during a very difficult personal situation. AFI 51-202 states 
the purpose of NJP is to provide commanders "with an essential 
and prompt means to promote positive behavior changes in the 
service member." In his reprimand, Major General F. told her she 
had to work hard and win back the trust of her superiors. She 
refers the Board to her actions as reflected in the four OPRs 
following the Article 15, as well as the recent Letter of 
Evaluation (LOE) from Afghanistan where she was recommended for 
a Bronze Star Medal. 

 

She understands she made a mistake but mistakes allow people to 
grow in character, which makes them better Air Force officers. 
In his March 2012 letter, Major General F. clearly supports her 
retention in the Air Force. The only way she will be retained 
in the Air Force is with the removal of the Article 15 from her 
record so she can be promoted. 

 

In support of her rebuttal she includes a Memorandums from the 
issuing commander and the 45th Space Wing Commander, a Character 
reference letter, her Letter of Evaluation from Deployed Task 
Force and her OPR ending 6 Jul 11. 

 

The applicant's complete response, with attachments, is at 
Exhibit I. 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by 
existing law or regulations. 

 

2. The application was timely filed. 

 

3. Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. After 
careful consideration of the applicant’s complete submission we 
believe it to be in the interest of justice to grant the 
requested relief. In reaching our decision, we were greatly 
influenced by the support the applicant has presented from her 
rating chain at the time of the alleged offenses and from her 
current rating chain. In cases of this type that seek to 
overturn the action of a commander, it is the normal practice of 
the Board to accord great deference to a commander’s actions 
unless evidence of abuse of discretionary authority is presented 
or we are led to conclude the commander’s actions were arbitrary 
and capricious. In our view, the circumstances of the instant 
case make it reasonable to accord a degree of deference to the 
recommendations of the applicant’s commanders to grant her 


relief. We note the recommendations of the Air Force offices of 
primary responsibility to deny the requested relief. However, 
their recommendations appear to be based primarily on the fact 
the actions taken against the applicant were properly executed 
in accordance with governing policy. We too fail to find that 
any of the actions taken were improper at the time of execution 
or were not done in accordance with pertinent policy. 
Nevertheless, we must note that this Board may base its 
decisions on matters of equity and justice, rather than simply 
on whether rules and regulations were followed. After 
considering the impact of the Article 15 on the applicant’s Air 
Force career, we believe it would be appropriate to grant 
relief. In fact, based on the unequivocal support of her rating 
chain, we believe that to grant relief in this instance may also 
be in the best interest of the Air Force. While the Article 15 
and other actions were proper at the time of their execution, 
the applicant has shown through her performance and actions 
since that her misconduct during the period in question was an 
aberration and that the Article 15 has served its rehabilitative 
purpose. Therefore, we believe it would be in the interest of 
justice to set aside the Article 15, remove the contested OPR 
ending 15 Nov 08, and for her corrected record be considered for 
promotion to the grade of major by SSB for the CY11 Central 
Selection Board. We note that DPSIP states if the applicant is 
considered for SSB she will be afforded an opportunity to earn 
an IDE slot. Accordingly, we recommend her record be corrected 
as indicated below. 

 

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 pertinent military records of the Department of the Air 
Force relating to APPLICANT be corrected to show that: 

 

 a. The nonjudicial punishment under the provisions of 
Article 15, Uniform Code of Military Justice, initiated on 
3 October 2008 and imposed on 9 December 2008, be declared void 
and expunged from her records, and all rights, privileges and 
property of which she may have been deprived be restored. 

 

 b. The Company Grade Officer Performance Report, AF IMT 
707B, rendered for the period 2 March 2008 through 15 November 
2008, be declared void and removed from her records 

 

It is further recommended that her record be considered for 
promotion to the grade of major by a Special Selection Board for 
the Calendar Year 2011 Major Central Selection Board. 


 

________________________________________________________________ 

 

The following members of the Board considered this application 
in Executive Session on 20 Mar 12, under the provisions of AFI 
36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

 

The following documentary evidence was considered in AFBCMR BC-
2011-02911: 

 

 Exhibit A. DD Form 149, dated 20 Jul 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 8 Sep 11. 

 Exhibit D. Letter, AFPC/DPSID, dated 17 Nov 11. 

 Exhibit E. Letter, AFPC/DPAPFE, dated 16 Dec 11. 

 Exhibit F. Letter, HQ AFPC/DPSOO, dated 10 Jan 12. 

 Exhibit G. Letter, AFPC/PB, w/atchs, dated 1 Feb 12. 

 Exhibit H. Letter, SAF/MRBR, dated 10 Feb 12. 

 Exhibit I. Rebuttal, Applicant, dated 1 Mar 12, w/atchs. 

 

 

 

 

 

 Panel Chair 

 

 


AFBCMR BC-2011-02911 

 

 

 

 

MEMORANDUM FOR THE CHIEF OF STAFF 

 

Having received and considered the recommendation of the Air Force Board for Correction 
of Military Records and under the authority of Section 1552, Title 10, United States Code, it is 
directed that: 

 

The pertinent military records of the Department of the Air Force relating to the 
APPLICANT be corrected to show that: 

 

 a. The nonjudicial punishment under the provisions of Article 15, Uniform Code of 
Military Justice, initiated on 3 October 2008 and imposed on 9 December 2008, be, and hereby 
is, declared void and expunged from her records, and all rights, privileges and property of which 
she may have been deprived be restored. 

 

 b. The AF IMT 707B, Company Grade Officer Performance Report, rendered for the 
period 2 March 2008 through 15 November 2008, be, and hereby is, declared void and removed 
from her records 

 

 It is further directed that her record be considered for promotion to the grade of major by a 
Special Selection Board for the Calendar Year 2011 Major Central Selection Board. 

 

 

 

 

 

 Director 

 Air Force Review Boards Agency