RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03325 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. The non-judicial punishment (NJP), imposed on 23 Feb 11 
under Article 15 of the Uniform Code of Military Justice (UCMJ), 
be declared void and removed from her records. 

 

2. She be reinstated to the rank of Senior Airman (E-4) with a 
date of rank (DOR) of 2 Feb 11. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

She had inadequate legal representation. Her Area Defense 
Counsel (ADC) was located in a different country, making it 
difficult to receive proper legal advice. In fact, her ADC 
indicated that she was too busy to research her concerns and 
provide appropriate legal advice. 

 

The contested NJP was inappropriate as evidenced by the 
subsequent recommendation of the Administrative Discharge Board 
which determined she did not commit two of the three offenses 
which formed its basis. 

 

In support of her appeal, the applicant provides copies of her 
AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB 
thru TSgt), her personal presentation and appeal to her 
commander concerning the contested Article 15, two character 
references, the Administrative Discharge Board findings, her 
records review listing, and several Enlisted Performance Reports 
(EPRs). 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The following facts were extracted from the Air Force 
Advisories: 

 


On Nov 10, the applicant was a staff sergeant (E-5) deployed to 
Afghanistan and assigned to the Combined Security Transition 
Command-Afghanistan (CSTC-A). 

 

On 2 Feb 11, the applicant received an Article 15 (nonjudicial 
punishment) for wrongfully allowing a person of the opposite 
gender to visit her quarters on diverse occasions between on or 
about 1 Nov 10 and on or about 23 Jan 11. The punishment was a 
reduction in rank from staff sergeant (E-5) to senior airman 
(E-4). 

 

On 23 Feb 11, the applicant’s commander offered her nonjudical 
punishment a second time when additional allegations came to 
light. The charges were: 

 

 1. Failure to obey a lawful order, in violation of Article 
92 of the UCMJ, to have no contact with a Private First Class 
(PFC), who had previously shared quarters with her, by 
contacting the PFC through a third party. 

 

 2. Violation of a lawful order, in violation of Article 92 
of the UCMJ, by wrongfully allowing a person of the opposite 
gender to visit her quarters between on or about 1 Oct 10 and on 
or about 31 Oct 10. 

 

 3. Retaliating against the PFC after she provided a 
witness statement in the investigation of the applicant in 
violation of Article 134 of the UCMJ by distributing a 
photograph of the PFC standing in front of a naked man lying on 
her barracks room bed. 

 

On 26 Feb 11, the applicant acknowledged receipt of the action 
and indicated that she had consulted legal counsel. She waived 
her right to a court-martial and accepted nonjudicial punishment 
proceedings, submitted a written statement in her behalf, and 
requested a personal appearance before the commander. On 1 Mar 
11, her commander administered nonjudical punishment consisting 
of a reprimand and a reduction to the grade of Airman (E-2) with 
a date of rank of 26 Feb 11, with reduction below Airman First 
Class (E-3) suspended until 15 Aug 11. 

 

On 5 Mar 11, the applicant submitted an appeal of the punishment 
of reduction in grade, but her appeal was denied. 

 

On 14 Jul 11, an Administrative Discharge Board was convened to 
consider the applicant’s involuntary discharge from the Air 
Force. After considering all the evidence in the case, a 
majority of the voting members made the following findings: 

 

* a. The applicant did, between on or about 1 Nov 10, and on or 
about 23 Jan 11, violate a lawful general order, to wit: 


paragraph 2.n., General Order Number 1B, dated 14 Jul 10, by 
wrongfully allowing a person of the opposite gender to visit her 
quarters. 

 

**b. The applicant did not, on or about 2 Feb 11, having 
knowledge of a lawful order issued by her squadron commander not 
to have contact with a certain PFC, to include contact through a 
third party, failed to obey that order by wrongfully telling a 
third party to contact the PFC to let her know the applicant had 
a certain picture of the PFC that the applicant was going to 
take to the Inspector General’s office. 

 

**c. The applicant did not, between on or about 1 Oct 10, and 
on or about 31 Oct 10, violate a lawful general order, to wit: 
paragraph 2.n., General order Number 1B, dated 14 Jul 10, by 
wrongfully allowing a person of the opposite gender to visit her 
quarters. 

 

**d. The applicant did, between on or about 1 Feb 11, and on or 
about 9 Feb 11, retaliate against the aforementioned PFC after 
the PFC provided a witness statement in a law enforcement 
investigation of which the applicant was the subject, by 
distributing a photograph of the PFC standing in front of a 
naked male lying on the PFC’s barracks room bed, which conduct 
was prejudicial to good order and discipline in the Armed Forces 
and is of a nature to bring discredit upon the armed Forces. 

 

* Basis of the first Article 15 

 

** Basis of the second, contested, Article 15 

 

On 2 Aug 11, the discharge authority concurred with the 
recommendation of the Administrative Discharge Board and 
directed the applicant’s retention. 

 

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force, which is attached at Exhibit C. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial indicating there is no evidence of 
an error or injustice. An examination of the Article 15 in 
question shows no error in processing. 

 

There is no evidence to support the applicant’s claim that she 
received less than adequate legal counsel or advice. It is not 
uncommon for an Airman facing nonjudicial punishment to consult 
with an area defense counsel over the phone when one is not 


available in the same location as the Airman. The applicant 
also says her defense counsel said she was too busy to provide 
legal advice to the applicant or to research her concerns. 
However, this allegation is undermined by the fact the applicant 
initialed block 3a of the Form 3070, Record of Nonjudicial 
Punishment Proceedings, which indicated that she had consulted 
with a lawyer before making her decision to accept the Article 
15. 

 

It appears the discharge board found that the applicant did not 
commit two of the three offenses with which the applicant was 
charged. The relevance of the discharge board’s findings with 
regard to the commander’s decision on the Article 15 is 
questionable. It is important to point out, though, that the 
commander can impose the full range of nonjudicial punishment 
based on only one charge and specification. In this case, even 
if more weight is given to the discharge board’s determination 
than the commander’s, the discharge board still found that the 
applicant had committed the third offense on the Article 15--
retaliation against a fellow military member by distributing a 
photograph of that military member standing in front of a naked 
male lying on her barracks room bed. Based on only this 
offense, the commander could still have given the applicant an 
Article 15 and could still have imposed the punishment that the 
applicant ended up receiving. The applicant’s guilt as to at 
least one of the offenses remains firmly established on the 
basis that the applicant offered the Board, as a guide,the 
determination of her discharge board. 

 

In the end, resolution of the allegations against the applicant 
required an evaluation of the available evidence and a 
determination of whether or not it was sufficient to establish 
the applicants’ guilt. In this case, the applicant’s commander 
was in the best position to evaluate the evidence available and 
to weigh that against the applicant’s version of events. The 
exercise of that discretion should generally not be reversed or 
otherwise changed by the Board absent good cause. Based upon 
the evidence presented in the case and considering the other 
factors mentioned by the applicant, the commander was clearly 
not acting in an arbitrary or capricious manner when he found 
nonjudicial punishment appropriate to the offense and not 
unfairly harsh. 

 

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

 

AFPC/DPSOE defers to AFLOA/JAJM’s recommendation on dispensation 
of the Article 15. Her new DOR to A1C is 26 Feb 11. She also 
received a referral EPR for the period 16 Jul 10 – 15 Jul 11. 
Based on her DOR, she will not be eligible for promotion to SrA 
until 26 Oct 12 (20 months time-in-grade), provided she receives 
a nonreferral EPR with a close out date on or before 26 Oct 12. 


 

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

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 4 Dec 11 for review and comment within 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 not timely filed; however it is in the 
interest of justice to excuse the failure to timely file. 

 

3. Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. The 
applicant is requesting her nonjudicial punishment (Article 15), 
dated 23 Feb 11, be removed from her record. While the Board 
would normally give great deference to the decision of the 
commander, the unique characteristics of this case merit 
granting the request. We took particular note of the fact that 
the applicant’s Administrative Discharge Board determined she 
did not commit two of the three charges upon which the Article 
15 was based. Furthermore, the remaining charge the discharge 
board determined she was guilty of was an action she undertook 
only after first seeking advice from a field grade officer and a 
security forces NCOIC, and then following the advice she 
received. We gave great credence to the memos from the Security 
Police Navy Lieutenant Commander and Army NCOIC, each of whom 
admitted to providing the applicant with advice that directly 
contributed to her receiving this Article 15. Finally, her 
otherwise superlative military record appears to be a mitigating 
factor in her behalf. Therefore, we recommend her records be 
corrected as indicated below. 

 

________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that the AF 
Form 3070A, Record of Nonjudicial Punishment Proceedings (AB 
thru TSgt) (Article 15), dated 23 Feb 11, be declared void and 


expunged from her records, and all rights, privileges and 
property of which she may have been deprived be restored. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2011-03325 in Executive Session on 12 Apr 12, under 
the provisions of AFI 36-2603: 

 

, Panel Chair 

, Member 

, Member 

 

All members voted to correct the records as recommended. The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-03325 was considered: 

 

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

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 5 Oct 11. 

 Exhibit D. Letter, AFPC/DPSOE, dated 17 Oct 11. 

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

 

 

 

 

 

 Panel Chair