RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-04128 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

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. His rank of staff sergeant (SSgt/E-5) be restored with his 
original date of rank (DOR). 

 

3. His referral Enlisted Performance Report (EPR) be declared 
void and removed from his records. 

 

4. His promotion test results for cycle 10E6 be published, and 
he be awarded the appropriate line number to the rank of 
technical sergeant (TSgt/E-6). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. The accusations that formed the basis of the action came to 
light during an unprofessionally led Human Relations class where 
the instructor told the trainees that nothing would leave the 
room in order to coerce information, which gave the trainees 
license to stretch the truth. Once one trainee spoke up about 
an incident, others followed suit, regardless of whether or not 
there was actual evidence of misconduct. Most of the original 
trainee statements were hearsay and not actual fact. 

 

2. The specifications listed in the NJP are not supported by 
the evidence. Any contact with the trainees was unintentional 
and certain statements that indicate otherwise were authored by 
individuals who were not of the utmost character as evidenced by 
their repeated violations of integrity and other standards as 
cited in their training records. Furthermore, the statements of 
other trainees call into question the character of his accusers 
and support the fact that he never intentionally poked, grabbed, 
or placed hands on other trainees. 

 

3. He was not given due process. He was charged and then 
demoted. He was offered NJP on 15 Mar 11, which would lead a 


casual observer to believe he had already been found guilty 
before the investigation was even completed. 

 

4. Given the evidence, the contested actions were extremely 
harsh and unwarranted as AFI 51-202, paragraph 3.4, indicates 
that proof beyond a reasonable doubt of each element of every 
offense by legal and competent evidence is a prerequisite to 
conviction. Whether such proof is available should be 
considered before initiation of action under Article 15. 

 

5. His subsequent referral EPR should be expunged from his 
record as it was a by-product of the unsubstantiated NJP action. 
Additionally, while NJP was imposed and he was relieved from his 
military training instructor (MTI) duties, the “1” rating issued 
is not reflective of his duty performance over the course of the 
reporting period as evidenced by the character statement of the 
supervisor to which he was assigned subsequent to being relieved 
of his MTI duties. 

 

6. Finally, the punishment was disproportionate to the 
circumstances as his demotion will unfairly result in the end of 
his career. While NJP is intended as a rehabilitative tool, his 
demotion to senior airman will result in his separation at ten 
years of service under high year tenure (HYT) rules. 

 

In support of his appeal, the applicant provides copies of his 
AF Form 3070A, Record of Nonjudicial Punishment Proceeding, 
multiple witness statements from trainees and coworkers, 
excerpts from the training records of several trainees who 
reported him, documentation of his success as a Military 
Training Instructor, and documentation related to the 
administration of his NJP and referral EPR. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 30 Mar 11, the applicant’s commander notified him that he was 
considering punishing the applicant under Article 15 of the 
UCMJ. The reasons for the action were as follows: 

 

Violation of Article 93 of the UCMJ 

 

1. He did, at or near Lackland Air Force Base (AFB), TX, 
between on or about 1 Feb 11 and on or about 4 Mar 11, maltreat 
basic trainees, persons subject to his orders, by ordering 
trainees to use offensive and demeaning language while on the 
telephone by using profanity in violation of Article 93 of the 
UCMJ. 

 

 


Violation of Article 128 of the UCMJ 

 

2. He did, at or near Lackland AFB, TX, between on or about 1 
Feb 11 and on or about 4 Mar 11, unlawfully push an Airman on 
the chest with his forearm. 

 

3. He did, at or near Lackland AFB, TX, between on or about 1 
Feb 11 and on or about 4 Mar 11, unlawfully push four Airmen’s 
glasses against their faces using his hands. 

 

4. He did, at or near Lackland AFB, TX, between on or about 1 
Feb 11 and on or about 4 Mar 11, unlawfully grab and Airman on 
the face with his hand. 

 

On 24 Mar 11, after consulting with legal counsel, the applicant 
acknowledged receipt of the action and elected to waive his 
right to court-martial and accept NJP proceedings, submit 
statements on his behalf, and appear before the commander. 

 

On 30 Mar 11, the commander determined the applicant committed 
one or more of the allegations, with the exception of the 
specification related to Article 93 of the UCMJ, and imposed 
punishment of a reprimand and a reduction to the grade of Senior 
Airman (E-4), with a new date of rank of 30 Mar 11. 

 

On 1 Apr 11, the applicant appealed the NJP to the issuer’s 
commander. His appeal was denied on 4 Apr 11, his commander 
subsequently directed an Unfavorable Information File (UIF) be 
established. The applicant acknowledged receipt of the action 
on 6 Apr 11. 

 

On 16 May 11, the contested EPR was referred to the applicant 
due to comments related to the NJP. The applicant submitted a 
written response on 24 May 11. 

 

On 25 Jun 12, he was honorably discharged and credited with ten 
years and one day of active service. 

 

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

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial of the applicant’s request to 
remove the NJP, indicating there is no evidence of an error or 
injustice. 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 and should not 
routinely be granted. Rather, set aside is to be used strictly 
in the unusual case where a genuine question about the service 
member’s guilt arises or where the best interest of the Air 


Force would be served. The applicant alleges injustice in that 
the evidence was insufficient to meet the legal standards of 
beyond a reasonable doubt. He argues that young trainees 
typically do not like their training instructors and will blow 
events out of proportion in an attempt to excuse their own 
behavior. He argues that some of the trainees making 
accusations against him had reputations for their lack of 
veracity as to the truthfulness and the forum of non-
attribution, where these accusations were originally made, was 
unprofessional and conducive to false claims of abuse. The 
applicant, however, does not allege error in how the Article 15 
was processed. The applicant’s rights were observed throughout 
the process of the Article 15. The commander, at the time of 
the Article 15, had the best opportunity to evaluate the 
evidence in the case, as evidenced by the fact the commander was 
persuaded by the applicant to withdraw the specification 
alleging maltreatment. With that perspective, the commander 
exercised the discretion the applicant granted him when he 
accepted NJP proceeding in lieu of his right to be tried by a 
court-martial. Moreover, the commander’s decision was 
scrutinized by the applicant’s exercise of his right of appeal 
to higher authorities. The legal review process showed that the 
commander did not act arbitrarily or capriciously in making his 
decision. The applicant does not make a compelling argument 
that the Board should overturn the contested action on the basis 
of injustice. The commander’s ultimate decision on the Article 
15 action, while arguably harsh, is firmly based on the evidence 
of the case and the punishment rendered was well within the 
limits of the commander’s authority and discretion. 

 

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

 

AFPC/DPSID recommends denial of the applicant’s request to 
remove the contested referral EPR, indicating there is no 
evidence of an error or injustice. The applicant contends that 
his EPR was extremely harsh and unwarranted due to his belief 
that he is innocent of the offenses as reported on the referral 
EPR. Specifically, he contends there was insufficient proof 
beyond a reasonable doubt to the specifications. As proof, the 
applicant provides numerous witness/victim statements which 
indicate that though he engaged in the accused behavior, it was 
neither intentional nor meant to be harmful, and that a number 
of witnesses were untruthful. Ultimately, he did accept NJP, 
waiving his right to a court-martial and in accordance with AFI 
36-2406, evaluators are strongly encouraged to comment in 
performance reports on misconduct that reflects a disregard of 
the law, whether civil law or the UCMJ, or when adverse actions, 
such as NJP, letters of reprimand, admonishment, or counseling 
have been taken. In this case, the applicant’s rating chain 
chose to comment on the contested report. The applicant also 
contends the action was disproportionate to the offense in that 
his complete record of service was not appropriately weighed 
against the circumstances of his mistakes. However, his rating 
chain was in the best position to evaluate duty performance, 


both on and off-duty, during the contested rating period. The 
Air Force places great trust in this process and only by a 
preponderance of the evidence could a case be made that this 
trust was violated in this specific circumstance. The applicant 
has attempted to make a sympathetic appeal to fairness, but 
ultimately has not proven in any way that the evaluation made by 
the rating chain was inappropriate, unfair or biased. The fact 
remains that he received an Article 15 during the contested 
rating period for “maltreatment/maltraining of basic trainees 
entrusted to his care,” and had the opportunity to appeal this 
action, but the appeal was denied. The applicant’s evaluators 
chose to document this behavior on his EPR as the behavior is 
unacceptable performance of an Airman. 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 corrective action or 
removal from and individual’s record. The applicant has not 
provided compelling evidence to show the report is unjust or 
inaccurate as written. 

 

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

 

AFPC/DPSOE defers to the recommendations of AFLOA/JAJM and 
AFPC/DPSID. The applicant requests reinstatement of his rank to 
SSgt, and that his test results for cycle 11E6 (TSgt) be 
published with any applicable line number awarded to him. (he 
is likely referring to cycle 10E6 as he has never tested for 
11E6). Based on his SSgt DOR, the first time he was eligible 
for promotion consideration to TSgt was cycle 10E6. He tested 
for promotion on 16 Mar 10. Should the Board remove his Article 
15 and referral EPR, they could direct reinstatement of the rank 
of SSgt and direct the applicant be provided supplemental 
promotion consideration beginning with cycle 10E6. 

 

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

 

AFPC/DPSIMC recommends denial concerning the applicant’s request 
to void and remove this Unfavorable Information File (UIF). The 
applicant was charged with violating Article 28 of the UCMJ, and 
was reprimanded by receipt of NJP. The UIF was established 
correctly IAW AFI 36-2907, Unfavorable Information File Program. 

 

A complete copy of the AFPC/DPSIMC evaluation is at Exhibit F. 

 

________________________________________________________________ 

 

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 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 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 opinions and 
recommendations of the Air Force offices of primary 
responsibility, and adopt their rationale as the basis for our 
conclusion the applicant has not been the victim of an error or 
injustice. Notwithstanding the applicant’s assertions that the 
evidence was insufficient to support the specifications for 
which the applicant was punished, 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, which would have required a different standard for 
determining whether he committed the alleged offenses or not. 
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, 
we believe the NJP action was proper and we do not find the 
commander’s actions to be arbitrary or capricious. Moreover, we 
note that although the punishment may have ultimately resulted 
in the applicant’s eventual separation due to high year of 
tenure (HYT) rules, he has presented no evidence to indicate the 
commander did not fully consider this was an outcome of the 
punishment. Therefore, in absence of evidence the applicant was 
denied rights to which he was entitled, appropriate standards 
were not applied, or that his commander abused his discretionary 
authority, we find no basis to recommend granting the relief 
sought in this application. 

 

________________________________________________________________ 

 

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-2011-04128 in Executive Session on 19 Jul 12, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 13 Oct 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 2 Dec 11. 

 Exhibit D. Letter, AFPC/DPSID, dated 9 Apr 12. 

 Exhibit E. Letter, AFPC/DPSOE, dated 27 Apr 12. 

 Exhibit F. Letter, AFPC/DPSIMC, dated 29 Feb 12. 

 Exhibit G. Letter, SAF/MRBR, dated 11 May 12. 

 

 

 

 

 

 Panel Chair