ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-02116

		COUNSEL: 
		
		HEARING DESIRED:  YES


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APPLICANT REQUESTS THAT:

1.  His non-judicial punishment (Article 15) be declared void and be removed from his record.  

2.  His referral Enlisted Performance Report (EPR), rendered for the period 5 Apr 10 through 4 Apr 11, be declared void and removed from his record.

3.  His discharge from the Air Force be rescinded. 

4.  In the alternative, his Narrative Reason for Separation as reflected on his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to “Secretarial Authority,” the characterization of his discharge be upgraded to Honorable, and his Reentry (RE) code be change to one that would allow him to reenlist.   

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RESUME OF CASE:

On 7 Mar 13, the Board considered and denied the applicant’s original request to correct his records. In the original case, the applicant contended he is innocent of the charges preferred against him and the evidence was not sufficient to support non-judicial punishment (NJP).  Specifically, the two witnesses who testified against him were unreliable.  One witness was a self-identified long-term drug user, and the other was a confidential informant for the Office of Special Investigation (OSI) who later recanted his statement that the applicant used Spice.  After a thorough review of the evidence of record and the applicant’s complete submission, the Board determined the evidence provided by the applicant was insufficient to demonstrate the NJP had an insufficient basis or constituted an abuse of the commander’s discretionary authority.  The Board concluded that 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 higher standard of evidence for determining whether or not he committed the alleged offenses.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit I. 

On 15 Jun 13, through legal counsel, the applicant submitted a statement requesting reconsideration of his case due to having submitted new evidence.  The new evidence consists of a personal signed letter, dated 29 May 13, from the applicant’s accuser (not the OSI informant), who is no longer an Air Force member, stating she only accused the applicant of using Spice to get back at her ex-boyfriend (the OSI informant) because she was mad at him and the applicant was his friend.  She states “I know that my statement has caused (the applicant) to be thrown out of the Air Force, but he should not have been.”  In addition, she states that during her court-martial it was disclosed that her ex-boyfriend (the OSI informant) was the only OSI informant in the case, and she is aware he too signed a statement admitting the applicant did not use Spice.  The applicant further contends that if the commander at the time had known his accuser only accused him because she was angry with her ex-boyfriend and she recanted her statement, he would not have upheld the Article 15. 

The applicant’s complete submission, with attachment, is at Exhibit J.

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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 concerning the applicant’s receipt of non-judicial punishment, the referral EPR, or his involuntary discharge.  We took notice of the applicant’s complete submission in judging the merits of the case; however, the Board believes the commander at the time properly exercised the discretion the applicant granted him when he accepted NJP proceeding in lieu of his right to be tried by a court-martial.  The legal review process showed the commander did not act arbitrarily or capriciously in making his decision.  Given the clear lack of credibility of the two most significant witnesses, having provided evidence first against and then later on behalf of the applicant, the newly submitted information does not constitute a compelling argument that the Board should overturn the NJP action which formed the legitimate basis for the applicant’s discharge.  However, while we are reluctant to substitute our judgment for that of the commander in the NJP process as we are not privy to the totality of the evidence he considered, we believe that it would be in the interest of justice to correct the applicant’s record to reflect he was honorably discharged.  In this respect we note that while the evidence presented by the applicant is not sufficient for us to conclude the NJP, subsequent referral enlisted performance report (EPR), and resultant discharge were not proper, we believe that some measure of relief is warranted.  Therefore, in the interest of justice, we recommend the applicant’s record be corrected as indicated below.

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.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 3 August 2011, he was honorably discharged with a narrative reason for separation of “Secretarial Authority,” rather than “Misconduct—Drug Abuse,” a separation program designator (SPD) code of “KFF” rather than “JKK,” and a reentry (RE) code of “3K” rather than “2B.”

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The following members of the Board considered the applicant’s request for reconsideration of AFBCMR Docket Number BC-2012-02116 in Executive Session on 12 Nov 13, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

     	Exhibit I.  Record of Proceedings, dated 7 Mar 13. 
	Exhibit J.  Letter, Applicant, dated 7 Mar 13, w/atchs.




                                   
			Panel Chair