RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03042 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. Her non-judicial punishment (NJP) under Article 15 of the 
Uniform Code of Military Justice (UCMJ) imposed on 3 Sep 02 be 
voided and removed from her records. 

 

2. Her Officer Performance Report (OPR) rendered for the period 
14 May 02 through 14 May 03 be voided and removed from her 
records. 

 

3. She be given Special Selection Board (SSB) consideration for 
promotion to the grade of colonel (0-6) for 2009 and 2010. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. Her Article 15, UCMJ punishment has served its intended 
purpose and its continued presence in her record constitutes an 
unduly harsh punishment. 

 

2. Her Article 15 has caused her consequences far beyond the 
intended purpose of accountability. 

 

3. The commander’s intent was to hold her accountable for her 
actions, but to do so in a way that would allow her to recover 
from her isolated mistake. 

 

4. The Board would serve the best interests of the Air Force by 
completely removing the record at this time. 

 

5. The Article 15 now stands out as the one blemish on her 
otherwise outstanding and accomplished career, continues to 
prevent her career advancement and prevents the Air Force from 
utilizing her skills and abilities in positions for which she is 
qualified. 

 

In support of her request, the applicant provides an 11 page 
legal brief with attachments. 

 

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

 

_________________________________________________________________ 

 


STATEMENT OF FACTS: 

 

The applicant is currently serving in the United States Air 
Force Reserve in the grade of lieutenant colonel. 

 

Based on the available evidence, the applicant was charged with 
violations of Articles 92 and 133, UCMJ. Specifically, she was 
accused of violating a lawful general order by wrongfully having 
sexual intercourse with a junior enlisted member; and wrongfully 
engaging in fraternization by kissing and hugging, in a public 
bar a junior enlisted member, who was a member of the unit the 
applicant was inspecting as part of her duties as a member of 
the 14th Air Force Standardization and Evaluation Inspection 
Team. The applicant consulted counsel, waived her right to 
demand trial by court-martial, and accepted the NJP. She 
submitted written matters in her own behalf and requested a 
personal appearance before the commander. 

 

The commander determined she committed the offenses alleged and 
imposed punishment consisting of forfeiture of $1,250 pay per 
month for two months and a reprimand. 

 

The applicant appealed the commander’s decision, however, her 
appeal was denied by her commander and the appellate authority. 
The commander decided the action would be filed in her 
Unfavorable Information File (UIF); however, he decided not to 
file the Article 15 in her Officer Selection Record (OSR). The 
Article 15 action was reviewed by the servicing and General 
Court-Martial Convening Authority (GCMCA) Staff Judge Advocate 
(SJA) offices and determined to be legally sufficient. 

 

On 6 Jun 03, the applicant received a referral OPR for the 
period 14 May 02 through 13 May 03. 

 

On 26 Apr 04, the commander removed the Article 15, UCMJ action 
from her UIF. 

 

The applicant filed an appeal through the Evaluation Report 
Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports; however, the 
ERAB was not convinced the original report was unjust or wrong 
and disapproved the applicant’s request. 

 

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force, which are attached at Exhibits C and D. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

ARPC/DPB recommends denial. AFI 36-2406, Officer and Enlisted 
Evaluation System states that in deciding whether to record 
adverse information on a performance report, evaluators must 


consider that the vast majority of Air Force personnel serve 
their entire career with honor and distinction. Failure to 
document misconduct which reflects departure from the core 
values of the Air Force is a disservice to all personnel 
competing for promotion. Paragraph 1.3.1, strongly encourages 
evaluators to comment on misconduct that reflects a disregard of 
the law, whether civil or the UCMJ, or when actions such as an 
Article 15 have been taken. 

 

The objective of the Reserve promotion process is to promote 
fully qualified officers to serve in the next higher grade based 
on past performance and future potential. 

 

Voiding and removing the Article 15 and the referral OPR would 
imply the applicant never committed the misconduct for which she 
already acknowledged responsibility. It would disadvantage 
every other lieutenant colonel who did not violate the UCMJ, who 
was considered for jobs with greater responsibility, and who 
would compete with her for promotion. 

 

The complete DPB evaluation is at Exhibit C. 

 

AFLOA/JAJM recommends denial. A review of the NJP action shows 
no error in the processing of the action. The applicant was 
given all of her rights throughout the process. She was able to 
present matters (with the assistance of legal counsel) to the 
commander for consideration before imposition of punishment. 
The applicant was able to appeal the decision of her commander. 

 

The applicant’s claim of error or injustice with regard to the 
Article 15 action centers on the fact she claims the Article 
15 has long since fulfilled the commander’s intended purpose, 
but the continuing facts of the Article 15 in the applicant’s 
personnel record serves to make the punishment unduly harsh. 
The applicant points out that the commander decided not to file 
the Article 15 in the applicant’s OSR so as not to affect her 
chances for promotion and advancement. The applicant points out 
occasions when her referral OPR (which includes mention of the 
Article 15) was used to deny her positions for which she would 
have otherwise been the “number one or number two qualified 
candidate.” 

 

A set aside of NJP is the removal of the punishment from the 
record and the restoration of the service member’s rights, 
privileges, pay, or property affected by the punishment. 
Setting aside an Article 15 action restores the member to the 
position held before imposition of the punishment, as if the 
action had never been initiated. Set aside of punishment should 
not routinely be granted. Rather, set aside is to 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. 

 


There is no genuine question about the applicant’s guilt in this 
matter. The applicant has not made any claims that she did not 
commit the offenses for which she faced NJP in 2002. 
Furthermore, contrary to the applicant’s arguments, a set aside 
of the Article 15 would not be in the best interests of the Air 
Force. The issues raised by the applicant as constituting part 
of the “unduly harsh punishment” of the Article 15 are, in fact, 
collateral consequences of the Article 15. The commander’s 
punishment consisted of forfeiture of $1,250 pay per month for 
two months and a reprimand. The commander also opted not to 
file the record of the Article 15 in the applicant’s OSR. This 
latter action by the commander appears to have served its 
purpose, since the applicant was promoted to lieutenant colonel 
at some point after her Article 15 action and in spite of the 
fact that one of the applicant’s OPRs included mention of the 
Article 15. 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 complete JAJM evaluation is at Exhibit D. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant through her attorney responded to the advisory 
opinions. Counsel states the purpose of the applicant’s appeal 
to the AFBCMR is to ensure that her official military record is 
clean of all references to her receipt of NJP as was the intent 
of the imposing commander, Lieutenant General H. Lieutenant 
General H has repeatedly voiced his intent that the Article 
15 not be filed permanently in her record and that it not be 
used to adversely affect her military career. 

 

Counsel states the advisory opinion from the Air Force Legal 
Operations Agency (AFLOA), points out the fact the applicant 
received due process. This fact is not in dispute. The 
applicant acknowledges that she received due process and elected 
to accept the Article 15. She appealed the punishment and her 
appeal was denied. She served her punishment and is not 
requesting any relief regarding the amount or nature of the 
punishment she received. In that respect, the AFLOA discussion 
concerning setting aside the punishment is irrelevant. The 
advisory opinion does not address the removal of the UIF or the 
initiating commander’s authority to take such action. 
Therefore, the advisory opinion does not address the issue of 
whether or not the NJP should be located in any official record 
and should not weight heavily on the final decision of the 
Board. 

 

Counsel states the advisory opinion of the Air Reserve Personnel 
Center (ARPC) cites the section of AFI 36-2406, having to do 
with general considerations and encouraging raters to document 
misconduct. The portions of the regulation specifically 


addressing adverse information are controlling and would also 
point out that misconduct is a very broad category. While it 
certainly behooves the service to provide an accurate picture of 
the officer for promotion boards, it also places the authority 
for painting that picture with the officer’s chain of command. 
The regulation does not mandate mention of disciplinary action, 
except in the case of courts-martial, and instead encourages 
raters to consider factors including impact on the mission, duty 
performance, aggravating factors, and whether the misconduct 
reflected poorly on the Air Force. Lieutenant General H does 
not cite his consideration of these factors in his decision to 
refer the applicant’s OPR, but says he felt constrained by then 
Air Force senior leadership guidance and expectation indicating 
NJP should be cited in annual performance reports. This 
guidance contradicts the regulation and had it not been in place 
at the time, the NJP would not have been mentioned in the 
applicant’s OPR. 

 

The advisory goes on to confuse removing reference to the NJP in 
the OPR with setting aside the punishment, which is an erroneous 
interpretation of AFI 51-202, Nonjudicial Punishment. ARPC also 
states an opinion that the removal of the OPR would “give unfair 
advantage” to the applicant. This could not be further from the 
truth. The applicant would still be competing based on the 
merits of her file. She would not, however, be unfairly 
disadvantaged by a reference that her raters felt compelled to 
include that neither one agreed with. Clearly, the intent of 
the applicant’s chain of command was that she survives this 
isolated incident of misconduct and be competitive for positions 
of increased responsibility and authority. 

 

The advisory opinion from ARPC does not cite any controlling 
authority outside the general consideration of AFI 36-2406. It 
does not comment on the fact that the NJP was not included in 
the officer’s selection record or the impact of that decision. 
The ARPC advisory opinion consists of unsupported opinion and 
should not be given credence by the Board. 

 

The two advisory opinions solicited by the Board do not add 
anything to the determination of whether relief should be 
granted in this case. The consideration is one of both 
propriety and equity. The authority of the commander to decide 
the fate of those with whose lives he or she is entrusted should 
be held in the highest regard and not subject to second-guessing 
or manipulation by either higher authority or subsequent 
authority. To allow this is to circumvent command authority and 
tear at the very fabric of good order, morale and discipline. 
There is no question the applicant is one of the finest and most 
talented officers in the Air Force. Commander after commander 
have lauded her drive, dedication and outstanding performance. 
Her potential to the Air Force as an officer, leader and mentor 
cannot be overstated. It is up to the service to decide whether 
to allow one mistake to inhibit her rise or whether to embrace 


her potential and remove the one blemish tarnishing her 
otherwise pristine career. 

 

Counsel’s complete evaluation is at Exhibit F. 

 

_________________________________________________________________ 

 

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 
carefully reviewing the evidence of record, we are not persuaded 
the Article 15 should be declared void and removed from her 
records. We are also not persuaded that the comments contained 
in her OPR were in error or contrary to the provisions of the 
governing instructions. We also find no basis to recommend SSB 
consideration. As such, we agree with the opinions and 
recommendations of the Air Force offices of primary 
responsibility and adopt the rationale expressed as the basis 
for our conclusion the applicant has not been the victim of an 
error or injustice. We note the applicant has provided a 
statement from the imposing commander in support of her request; 
however, we do not find it sufficiently persuasive to override 
the rationale provided by the Air Force OPR. While it appears 
the incident in question may have been an aberration in an 
otherwise stellar career, the punishment she received appears 
appropriate to the offense and does not appear to be unjust or 
disproportionate. Therefore, we find no basis to recommend 
granting the requested relief. 

 

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-2011-03042 in Executive Session on 1 May 12, under the 
provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

The following documentary evidence pertaining to BC-2011-3042 
was considered: 

 

 Exhibit A. DD Form 149, dated 17 Aug 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, ARPC/DPB, dated 4 Oct 11. 

 Exhibit D. Letter, AFLOA/JAJM, dated 15 Sep 11. 

 Exhibit E. Letter, SAF/MRBR, dated 4 Nov 11 

 Exhibit F. Letter, Applicant, dated 2 Dec 11. 

 

 

 

 

 

 Panel Chair