RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03187 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. The nonjudicial punishment (NJP), imposed under Article 15 
of the Uniform Code of Military Justice (UCMJ), be declared void 
and removed from his records. 

 

2. He be reimbursed the fine of $1,546.00 he forfeited as a 
result of the Article 15 action. 

 

3. His dates of rank for senior airman (E-4) and staff sergeant 
(E-5) be adjusted accordingly. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He unjustly received NJP, which included a fine of $1,546.00 and 
a suspended reduction to the rank of airman (E-2) for 
Dereliction of Duty for operating a motorcycle prior to 
completing the Motorcycle Safety Foundation Course. However, at 
the time he received NJP, the Motorcycle Safety Foundation 
Course was not a requirement in the relevant Air Force 
Instruction (AFI) and he had been approved to operate his 
motorcycle by his squadron safety officer. 

 

The reduction in rank delayed his promotion to E-4, and 
prevented him from being considered for E-5 in 2007. 

 

A Line of Duty (LOD) Determination completed in 2011 by his Wing 
Judge Advocate supports his contention that the injuries he 
suffered in the motorcycle accident were in the LOD. 

 

In support of his appeal, the applicant provides copies of his 
AF Form 3070A, Record of Nonjudicial Punishment Proceeding, an 
excerpt from AFI 91-207, The U.S. Air Force Traffic Safety 
Program, and a memo from his wing Judge Advocate concerning his 
LOD Determination. 

 

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

 

________________________________________________________________ 


 

STATEMENT OF FACTS: 

 

The applicant entered active duty on 29 Jul 03. On 28 Jan 12, 
he was relieved from active duty and permanently retired for 
physical disability and was credited with eight years and six 
months of honorable active duty service. 

 

The remaining relevant facts pertaining to this application, 
extracted from the applicant’s master personnel records, are 
described in the letters prepared by the Air Force offices of 
responsibility which are included at Exhibits C and D. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial, indicating there is no evidence of 
an error or injustice. A commander considering a case for 
disposition under Article 15 exercises personal discretion in 
evaluating the case, both as to whether NJP is appropriate, and, 
if so, as to the nature and amount of punishment. A review of 
the process of the Article 15 shows that the applicant’s rights 
during the Article 15 process were observed without exception. 
The applicant’s evidence in support of his contention that he 
was not derelict in his duty is, in part, an opinion of the Wing 
Legal Office in the matter of the applicant’s LOD determination. 
A LOD determination for the applicant’s accident was 
accomplished in June 2011. The accident occurred in December 
2004. The author of the legal office opinion noted that the LOD 
determination was most likely being accomplished almost 7 years 
after the accident because of the possibility of permanent 
disability. A LOD determination, though, has a different 
standard and perspective than a charge of dereliction of duty 
under the UCMJ. Ultimately, the applicant has the burden of 
providing evidence to show the error or injustice that he is 
alleging with regard to the Article 15 action and he has not 
done so. While the applicant appealed the commander’s decision 
at the time of the Article 15, he only asked for the commander 
to reduce the amount of his extra work, and did not contest the 
charge of dereliction of duty. Evidence in a case like the 
applicant’s is normally destroyed after three years. In a case 
where the evidence upon which the commander at the time of the 
action based his decision is not available, an evaluation of 
error in the action or the commander’s decision should give 
great weight to the presumption of regularity in the processing 
of the Article 15. Absent evidence to the contrary, the 
commander’s decision should be considered to be based on 
sufficient evidence of the applicant’s misconduct. The 
commander did not act in an arbitrary or capricious manner in 
imposing the punishment and a legal review of the action found 
it to be legally sufficient. 

 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. 


 

AFPC/DPSOE recommends denial, deferring to the AFLOA/JAJM 
evaluation. The applicant was an A1C (E-3) with a Date of Rank 
(DOR) of 29 Jul 03 at the time the punishment was imposed. He 
would have been eligible for promotion to Senior Airman (E-4) 
effective 29 Nov 05 had it not been for his suspended reduction 
through 28 Feb 06. Should the Board remove the Article 15, the 
applicant’s DOR to E-3 would become 29 Nov 05, and he would be 
eligible for supplemental promotion consideration to staff 
sergeant (E-5) beginning with cycle 06E5. However, based upon 
comparing the applicant’s test scores and the scores required 
for promotion to staff sergeant at that time, the applicant 
would not have become a staff sergeant during any earlier 
promotion cycle than he actually did. Therefore, removing the 
Article 15 action would have no effect on his DOR to E-4. 

 

A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 16 Dec 11 for review and comment with 30 days. As 
of this date, no response has been received by this office 
(Exhibit E). 

 

________________________________________________________________ 

 

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 an error or injustice. We took 
notice of the applicant's complete submission in judging the 
merits of the case; however, we agree with the opinion and 
recommendation of AFLOA/JAJM and adopt their rationale as the 
basis for our conclusion the applicant has not been the victim 
of an error or injustice. The applicant’s contentions are duly 
noted; however, we do not find these assertions or the 
documentation provided, namely the LOD determination rendered 
years after the matter under review, sufficient to convince us 
the commander exceeded his discretionary authority or acted in 
an otherwise arbitrary or capricious manner. In this respect, 
we note the contested Article 15 was found legally sufficient 
and it appears the applicant was provided all of the rights to 
which he was entitled, including the right to refuse the Article 
15 and demand trial by court martial. By waiving his right to 
trial by court-martial, he accepted the commander’s evaluation 


of the evidence and his judgment as to the applicant’s guilt or 
innocence and punishment. Therefore, in absence of evidence the 
applicant was denied rights to which he was entitled or 
appropriate standards were not applied, 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 the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2011-03187 in Executive Session on 1 March 12, under the 
provisions of AFI 36-2603: 

 

 , Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 7 Aug 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 26 Oct 11. 

 Exhibit D. Letter, AFPC/DPSOE, dated 5 Dec 11. 

 Exhibit E. Letter, SAF/MRMR, dated 16 Dec 11. 

 

 

 

 

 

 

 Chair