RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03143 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His nonjudicial punishment imposed under Article 15 (Art 15) 
be set aside and removed from his records. 

 

2. His referral Enlisted Performance Report (EPR) rendered on 
him with a close out date of 15 July 2009 be removed from his 
records. 

 

3. He be reinstated to the grade of technical sergeant/E6 with 
his original date of rank 1 May 2006. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He has proudly served in the Air Force for over 17 years. 
During this time, he has never faced disciplinary action. In 
fact, he has received numerous awards and decorations and has 
served his country through seven foreign tours including Iraq, 
Saudi Arabia, Kuwait, Jordan, Qatar and Turkey. He was also 
deployed at the time of this application. 

 

In June 2009, while serving in Turkey, he received nonjudicial 
punishment under Article 15 (Art 15) for five charges: one 
count of having a camera cell phone in a restricted area, two 
counts of sleeping on post, one count of obstruction of justice 
and one count of failing to conduct a foreign object debris 
(FOD) check. He is guilty of having a cell phone in a 
restricted area. The other charges are based on false 
accusations. 

 

He has documented the circumstances surrounding these events in 
an attachment to this request. These charges resulted in a 
reduction in rank and other related punishments. He requests 
the Board review the wrongs of his case and correct his military 
record from the injustice that has occurred. 

 

In support of his appeal, the applicant provides a 22-page 
statement, a copy of his enlisted performance report that 
predates the referral report, a copy of the Article 15, a copy 
of the Article 138 complaint, a copy of the congressional 
inquiry and other supporting documentation. 


 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently on active duty serving in the grade 
of staff sergeant/E5. On 7 July 2009, the applicant was 
notified of his commander’s intent to impose nonjudicial 
punishment (Art 15) against him for violation of Articles 92, 
113 and 134 of the Uniform Code of Military Justice (UCMJ). The 
applicant consulted with counsel, waived his right to a court-
martial and submitted a written statement on his behalf. He 
also requested a personal appearance before his commander. 

 

On 14 July 2009, the commander found the applicant committed one 
or more of the offenses alleged. His punishment consisted of a 
reduction to the grade of staff sergeant with a new date of rank 
of 14 July 2009, forfeiture of $1,414.00 pay per month for two 
months and a reprimand. The applicant did not appeal the 
punishment. On 21 July 2009, the Art 15 was found legally 
sufficient. 

 

On 8 August 2009, the applicant received a referral EPR due to 
comments listed in block 2 of the EPR. He submitted matters to 
the additional rater for consideration on 17 August 2009. 

 

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

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. Nonjudicial punishment is 
authorized by Article 15 of the UCMJ and governed by the Manual 
for Courts-Martial. Under Art 15, commanders may dispose of 
certain offenses without trial by court-martial unless the 
member objects. 

 

The applicant asserts a number of allegations of error or 
injustice in his Art 15. However, an examination of the Art 15 
reveals no errors in the processing of the action. After being 
notified by his commander of the nature of the offenses, the 
applicant consulted with defense counsel. The commander 
considered the information offered before finding he committed 
the offenses as alleged and then imposed punishment. The 
applicant also had the opportunity to consult with counsel prior 
to deciding whether to appeal the commander’s decision. There 
appears to be no deficiencies with the applicant’s rights to due 
process or the assistance of counsel. 


 

The applicant admits guilt to one of the five specifications 
charged. In the context of the applicant’s request to have his 
Art 15 set aside, it is important to point out the commander 
could impose the full range of punishment based on only one 
charge and specification. For instance, had the commander 
agreed the applicant had committed one specification, but none 
of the others, he still could have given the applicant the Art 
15 and imposed the same punishment. 

 

The applicant also asserts there was no investigation as to the 
facts of his case. Yet, the applicant points out that a number 
of witnesses provided sworn statements in conjunction with the 
incidents. There is no requirement that the evidence be 
acquired through an official law enforcement investigation. An 
unofficial investigation at the behest of the commander, first 
sergeant or supervisor is still an investigation into the facts 
of the case. Evidence and witness statements collected through 
such an investigation are properly considered and legally 
considered by a commander in the course of determining whether 
an Art 15 is appropriate. 

 

Additionally, the applicant questions the advice he was given by 
his assigned military defense counsel. He says he received 
feedback from a civilian defense counsel indicating the 
decisions made based on advice from the military defense counsel 
made it look like he was guilty. Acceptance of an Art 15 is not 
an admission of guilt. There is nothing incorrect in the 
information imparted to the applicant by the military defense 
counsel, as quoted by the applicant. A finding of guilty for 
any offense at a court-martial would have meant a federal 
conviction and up to three months in confinement. While the 
offense to which the applicant admits guilt does not carry a 
punitive discharge, the other offenses could have resulted in a 
bad conduct or dishonorable discharge. Furthermore, it is not 
uncommon to seek administrative discharge of Airmen who have 
been convicted of an offense at a court-martial. 

 

The MCM and the governing instruction provide certain relief 
from Art 15s, specifically, mitigation, remission, suspension 
and set aside. A set aside of an Art 15 is the removal of the 
punishment from the record and the restoration of the member’s 
rights. Setting aside an Art 15 restores the member to the 
position held before imposition, as if the action never 
happened. Set aside should not be routinely granted. Rather it 
should be used strictly and in rare and unusual cases where 
genuine questions about the member’s guilt arises or where the 
interest of the Air Force would be served. In this case, the 
applicant’s guilt to at least one offense remains firmly 
established in no less way than the applicants own admission. 

 

The applicant has not established an error or injustice in his 
Art 15 such that a set aside would be in the best interest of 
the Air Force. The commander did not act in an arbitrary or 


capricious way when he found an Art 15 was appropriate in this 
case. Furthermore, the punishment imposed was appropriate for 
the case and was not unfairly harsh. 

 

 

The complete AFLOA/JAJM evaluation is at Exhibit C. 

 

AFPC/DPSOE defers to AFLOA/JAJM’s recommendation. The applicant 
has been considered and nonselected for promotion to master 
sergeant twice. Based on his new date of rank to staff 
sergeant, he was eligible for promotion consideration to 
technical sergeant beginning with cycle 11E6. Due to his 
deployment, he has not yet tested for promotion. Should the 
Board grant the applicant’s request, he would receive 
supplemental promotion consideration to master sergeant 
beginning with cycle 10E7, once he tests. 

 

The completed DPSOE evaluation is at Exhibit D. 

 

AFPC/DPSID recommends denial. The applicant has not filed an 
appeal through the Evaluation Reports Appeals Board (ERAB). 

 

The applicant contends that he received his EPR a couple months 
after the closeout date. However, the actual time was three 
weeks. While timeliness is always an important factor in 
processing performance reports, failure by the rating chain to 
present the referral EPR for signature and submission for 
processing is not a valid reason to challenge the validity of 
the report. The applicant also contends the feedback date 
recorded on the EPR is bogus and refers to attachment 5 of his 
submission, however, that reference could not be found. 

 

An evaluation report is considered to represent the rating 
chain’s best judgment at the time it is rendered. Once a report 
is accepted for file, only strong evidence to the contrary 
warrants correction or removal from an individual’s record. The 
applicant has not substantiated the contested report is unjust 
or inaccurate. 

 

The complete DPSID evaluation is at Exhibit E. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant submitted sworn affidavits as additional evidence 
regarding his case. He maintains while there were four witness 
statements written in his case, there was not a thorough 
investigation. He also states he was never advised he could 
have witnesses appear and testify on his behalf in front of his 
commander after accepting the Art 15. Finally, while he did not 
appeal his punishment, he did continue to appeal to his 
commander and that appeal is submitted with his original 
request. 


 

He respectfully requests the Board review the wrongs and correct 
his military record. He requests his rank be reinstated along 
with his time in grade. However, if the Board feels a complete 
reinstatement is not available, he requests the Board reinstate 
at least 75 percent or such other percentage as deemed 
appropriate. The Art 15 punishment rendered in his case was far 
too severe for the crimes charged, particularly given his 
innocence to all but one of the offenses. 

 

The applicant’s complete response, with attachments, is at 
Exhibit G. 

 

________________________________________________________________ 

 

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 note 
of the applicant’s contentions regarding his nonjudicial 
punishment and that the punishment rendered was far too severe 
for the crimes charged. 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 his 
discretionary authority or that his action was arbitrary or 
capricious. The applicant has not provided evidence that shows 
the Article 15 action was not processed in accordance with 
applicable policy and procedures. As such, we agree with the 
Air Force offices of primary responsibility and adopt their 
rationale as the primary basis for our determination that the 
applicant has not been the victim of error or injustice. 
Therefore, in the absence of 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 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 BCMR Docket Number 
BC-2011-03143 in Executive Session on 27 March 2012, under the 
provisions of AFI 36-2603: 

 

, Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dtd 10 Aug 11, w/atchs. 

 Exhibit B. Letter, Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dtd 27 Sep 11. 

 Exhibit D. Letter, AFPC/DPSOE, dtd 20 Oct 11. 

 Exhibit E. Letter, SAF/MRBR, dtd 13 Jan 12. 

 Exhibit F. Applicant’s Response dtd 9 Feb 12, w/atchs. 

 

 

 

 

 

 Panel Chair