RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05820
						COUNSEL
                   	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  Void and remove the Article 15, Uniform Code of Military 
Justice (UCMJ) punishment, received on 10 August 2011, and any 
references thereto from his official military personnel record.  

2.  His referral Enlisted Performance Report (EPR), rendered for 
the period 3 June 2011 through 2 June 2012, be voided and 
removed from his official military personnel record.  

3.  His demotion from master sergeant (E-7) to technical 
sergeant (E-6) be voided and his rank of master sergeant be 
reinstated.  

4.  Remove any adverse documentation from his promotion 
selection record.  
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APPLICANT CONTENDS THAT:

His Article 15 and associated subsequent adverse actions were 
all based on unreliable and personally motivated hearsay, as 
opposed to credible evidence.   He has not committed any 
misconduct in his 18 years of service.  Because of his demotion 
to technical sergeant (E-6), he will be forced into retirement 
in 2013 due to reaching his high year of tenure.  His command 
promised to return his stripe in three months; however, they 
have failed to honor that promise.  

In support of his appeal, the applicant provides a personal 
statement, and, copies of his Article 15; response to the 
Article 15; Area Defense Counsel’s response to the Article 15; 
request for suspension of nonjudical punishment; witness 
statements; referral EPR; career EPRs; awards, decorations, and 
recognitions; and character references.  

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

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STATEMENT OF FACTS:

The applicant is a former member of the Regular Air Force who 
retired effective 1 December 2013 in the grade of technical 
sergeant.  

On 10 August 2011, the applicant was offered nonjudicial 
punishment under Article 15, UCMJ, for one specification of 
adultery by having sexual intercourse with a married woman not 
his wife in violation of Article 134, UCMJ.  

The applicant was afforded the opportunity to consult with 
defense counsel, accepted the Article 15, and waived his right 
to demand trial by court-martial.  He elected to present written 
matters and made a personal appearance before the commander.  On 
16 August 2011, the applicant’s group commander decided the 
applicant had committed the offense and imposed punishment 
consisting of reduction in grade to master sergeant, with a new 
date of rank of 16 August 2011, and a reprimand.  The applicant 
appealed the commander’s decision; however, his appeal was 
denied.  The Article 15 action was reviewed and determined to be 
legally sufficient.  

As a result of his nonjudicial punishment, the applicant 
received a referral EPR for the period 3 June 2011 through 2 
June 2012.  

The remaining relevant facts, extracted from the applicant’s 
military service records, are contained in the evaluations by 
the Air Force offices of primary responsibility at Exhibits C 
through F.  

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant does 
not allege error in how the Article 15 was processed; however, 
he does allege that the evidence used to support his nonjudicial 
punishment was inconsistent, unreliable, and does not rise to 
the legal standard required for giving nonjudicial punishment.  
Nevertheless, the applicant’s commander looked at all the 
relevant evidence, and, with the guidance of her staff judge 
advocate, decided there was enough relevant evidence to impose 
the nonjudical punishment.  The nonjudicial punishment was 
reviewed for legally sufficiency by the wing staff judge 
advocate and by the general court-martial convening authority’s 
staff judge advocate, where it was deemed legally sufficient by 
both levels of legal review.  

The applicant does not make a compelling argument that the Board 
should overturn the commander’s original, nonjudicial punishment 
decision.  The commander’s ultimate decision on the Article 15 
action is firmly based on the evidence of the case and the 
punishment decision was well within the limits of the 
commander’s authority and discretion.  The applicant elected not 
to appeal the nonjudicial punishment decision.

The complete JAJM evaluation is at Exhibit C.  

AFPC/DPSIM agrees with AFLOA/JAJM’s recommendation to deny the 
relief sought to set aside the nonjudicial punishment received 
on 13 August 2011.  The applicant’s request is based on the 
legitimacy of the evidence used in determining appropriate 
punishment.  Unfortunately, their office cannot speak to whether 
or not the commander’s judgment or actions were just or not; at 
most, they can only discuss if proper procedure was followed to 
establish an Unfavorable Information File (UIF).  After careful 
review of the evidence presented, they have concluded correct 
procedure was used in administering the UIF.  The applicant has 
not provided sufficient evidence to clearly establish a 
procedural error or injustice by the Air Force.  

The complete DPSIM evaluation is at Exhibit D.  

AFPC/DPSID states that based on the recommendation from 
AFLOA/JAJM and lack of evidence of corroborating evidence 
provided by the applicant, they recommend the Board deny the 
applicant’s request to void the contested EPR.  The applicant 
has not provided evidence to show the report was unjust or 
inaccurate at the time it was written.  They defer consideration 
of any other aspects of the applicant’s appeal to the relevant 
appropriate agencies or offices of primary responsibility.  

The complete DPSID evaluation is at Exhibit E.  

AFPC/DPSOE states that based on the AFLOA/JAJM opinion, 
AFPC/DPSID has determined the contested EPR is accurate as 
written and recommends denial of its removal.  Their office has 
no equity in the decision.  Based on the applicant’s reduction 
to technical sergeant, he will be forced to retire effective 
1 December 2013.  Should the Board remove the Article 15 and 
restore the applicant’s rank to master sergeant, his original 
date of rank was 1 March 2010.  Should the Board also remove the 
referral EPR, he would be eligible for supplemental promotion 
consideration to senior master sergeant (E-8) with cycle 12E8 
(once tested).  

The complete AFPC/DPSOE evaluation is at Exhibit F.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The substantive issues raised in his appeal have not been 
adequately addressed by the Air Force.  The entirety of the 
government’s response is “trust the commander.”  There was no 
analysis about how the inconsistent, unreliable statements, upon 
which the adverse actions were based, met the applicable legal 
standard.  AFLOA/JAJM simply states that the commander made a 
decision that was previously reviewed for legal sufficiency and 
that the applicant does not make a compelling argument.  The 
other advisory opinions follow the recommendation of JAJM.  No 
one bothered to try to reconcile the clear evidentiary problems 
– because they can’t be reconciled.  No one has attempted to 
explain away the obvious motives of his accuser – because they 
can’t be explained away.  There was no analysis of the unfilled 
promise by his command, his career contributions or the impact 
of the adverse actions on his career.  He doesn’t understand how 
an attorney arguing that an appeal should be denied can make a 
conclusory recommendation without a substantive analysis and 
argument to back it up.  

The applicant’s complete rebuttal is at Exhibit H.  

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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 an 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.  We note the applicant’s contentions that the 
evidence to support the adultery allegation was inconsistent and 
did not legally support the allegation; however, he does not 
provide any evidence to support his contentions that the 
evidence used to support the nonjudicial punishment action 
against him was insufficient.  While the impact of these actions 
on the applicant’s career may be regrettable, we do not find the 
actions serve to make the applicant the victim of error or 
injustice.  Therefore, in the absence of evidence to the 
contrary, we do not find it in the interest of justice to 
recommend granting the relief sought in this application.

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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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2012-05820 in Executive Session on 12 December 2013, 
under the provisions of AFI 36-2603:

	                      , Panel Chair
	                      , Member
	                      , Member

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2012-05820:

Exhibit A.  DD Form 149, dated 4 Dec 12, w/atchs.
Exhibit C.  Letter, AFLOA/JAJM, dated 29 Jan 13.
Exhibit D.  Letter, AFPC/DPSIM, dated 25 May 13.
Exhibit E.  Letter, AFPC/DPSID, dated 23 Aug 13.
Exhibit F.  Letter, AFPC/DPSOE, dated 25 Sep 13.
Exhibit G.  Letter, SAF/MRBR, dated 23 Oct 13.
Exhibit H.  Letter, Applicant, dated 8 Nov 13.




                      
Panel Chair