ADDENDUM TO 

punishment 

(NJP) 

and 

any 

nonjudicial 

DOCKET NUMBER: BC-2011-04130 
COUNSEL: 
HEARING DESIRED:  YES 

                       RECORD OF PROCEEDINGS 
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 
IN THE MATTER OF: 
   
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
1.  His 
negative 
information related to the Driving under the Influence (DUI) of 
alcohol incident be removed.   
 
2.  His  enlisted  performance  report  (EPR)  rendered  for  the 
period of 2 Mar 10 through 1 Mar 11 be removed.   
 
3.  He  be  restored  to  the  appropriate  grade  with  all  back  pay 
and allowances. 
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On  24  Jan  11,  the  applicant  was  offered  nonjudicial  punishment 
under  Article  15,  Uniform  Code  of  Military  Justice  (UCMJ).    He 
was  charged  with  one  specification  of  drunk  or  reckless 
operation of a vehicle in violation of Article 111, UCMJ.  The 
facts  of  the  case  specify  that  he  was  initially  pulled-over  by 
security  forces  personnel  for  traveling  northbound  in  a 
southbound lane.  He admitted to drinking an hour prior to the 
traffic  stop  and  was  sweating  profusely.    He  consented  to  a 
field  sobriety  test  and  exhibited  signs  of  driving  while  under 
the  influence  of  alcohol.    He  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 not to 
present  written  matters  but  did  make  a  personal  appearance 
before  the  commander.    On  28 Jan 11,  the  commander  decided  the 
applicant  had  committed  the  charged  offense  and  imposed 
punishment  consisting  of  a  suspended  reduction  to  the  rank  of 
senior  airman,  a  suspended  forfeiture  of  $500.00  pay,  ten  days 
extra  duty  and  a  reprimand.    The  applicant  did  not  appeal  the 
commander's  decision.    The  Article  15  action  was  reviewed  and 
determined· to be legally sufficient. 
 
A  similar  appeal  was  considered  and  denied  by  the  Board,  on 
21 Jun  12.    For  an  accounting  of  the  facts  and  circumstances 
surrounding  the  application,  and,  the  rationale  of  the  earlier 
decision  by  the  Board,  see  the  Record  of  Proceedings  at 
Exhibit G, with attachments. 
 

By  letter,  dated  31  Aug  12,  the  applicant’s  counsel  requests 
reconsideration of his case, because the advisory opinions were 
mailed  directly  to  the  applicant  vice  to  his  counsel  and  the 
applicant  did  not  respond.    This  deprived  the  applicant  of  the 
opportunity to submit a rebuttal (Exhibit H).   
 
Copies  of  the  Air  Force  evaluations  were  forwarded  to  the 
applicant  counsel,  on  31  Oct  12,  for  review  and  comment  within 
30 days.  (Exhibit I). 
 
In his response, counsel notes the AFLOA/JAJM advisory provides 
the  most  thorough  assessment  of  the  applicant’s  request.  
AFPC/DPSOE  defers  its  opinion  to  the  JAJM  advisory  and 
AFPC/DPSID  narrowly  addresses  the  request  to  remove  the 
contested report. 
 
In  addition,  counsel  notes  that  AFI  51-202,  section  5.7.1 
outlines two circumstances when the removal, or “setting aside”, 
of  an  Article  15  is  proper.    The  first  circumstance  is  where 
there  is  a  genuine  question  about  the  service  member's  guilt. 
The second circumstance for removal arises when the question of 
interest, specifically, will the best interest of the Air Force 
be  served  by  removing  the  Article  15  from  the  service  member's 
record. 
 
The JAJM advisory opinion fails to engage the “interest” clause 
of AFI 51-202.  The application does not challenge the manner in 
which  the  Article  15  was  processed;  rather,  the  application 
challenges  the  severity  of  the  punishment  in  light  of  the 
applicant’s total service to the USAF.  The “interest” clause of 
AFI  51-202  applies  this  case  because  the  drunk  driving  offense 
is  the  only  blemish  in  his  personnel  record.    The  applicant 
develops  a  clear  and  compelling  argument  that  based  on  his 
positive  EPRs  and  because  he  was  tentatively  selected  for 
promotion  to  Technical  Sergeant  (TSgt)  during  cycle  10E6  per 
Promotion Sequence Number 4151.0 (this fact is reflected in the 
AFPC/DPSOE  advisory  opinion)  there  was  sufficient  evidence  for 
the  Board  to  remove  the  Article  15  from  his  record.    If  the 
applicant’s past service and promotion potential are objectively 
considered, it is clear that it is in the best interest of the 
USAF  that  his  record  be  cleared  so  that  he  may  continue  to 
progress in his career and serve with honor and distinction. 
 
With  the  discovery  of  the  AFLOA/JAJM,  AFPC/DPSOE  and  the 
AFPC/DPSID  advisory  opinions,  and  the  arguments  contained  in 
counsel’s  memorandum,  he  respectfully  requests  the  previous 
decision be overturned. 
 
Counsel’s complete response is at Exhibit J. 
 
________________________________________________________________ 
 
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 error or injustice.  We took notice 
of the applicant's complete submission in judging the merits of 
the case.  However, in our view, the Air Force office of primary 
responsibility  and  the  Air  Force  Legal  Operations  Agency  have 
adequately  addressed  the  issues  presented  by  the  applicant  and 
we are in agreement with their opinions and recommendations.  We 
find  no  evidence  of  an  error  or  injustice  that  occurred  during 
the NJP proceedings; nor has the applicant provided any evidence 
which  would  lead  us  to  believe  the  NJP  was  contrary  to  the 
provisions  of  the  governing  directives,  unduly  harsh,  or 
disproportionate  to  the  offenses  committed.    In  an  earlier 
finding, the Board determined there was insufficient evidence to 
warrant  corrective  action.    We  have  reviewed  the  letter,  with 
attachments,  provided  by  the  applicant’s  counsel  in  support  of 
his appeal; however, the additional information did not, to our 
satisfaction,  specifically  substantiate  his  entitlement  to  the 
requested relief or to warrant overturning the earlier decision 
of the Board.  In view of the above, we find no basis upon which 
to recommend favorable consideration of the applicant’s request. 
 
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  issue(s) 
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-2011-04130  in  Executive  Session  on  11  December  2012, 
under the provisions of AFI 36-2603: 
 
The following documentary evidence was considered: 
 
    Exhibit G.  Record of Proceedings, dated 18 Jul 12,  
                with Exhibit A through F. 
    Exhibit H.  Letter, Applicant’s Counsel, dated 31 Aug 12. 

 

 

    Exhibit I.  Letter, AFBCMR, dated 31 Oct 12, w/exhibits. 
    Exhibit J.  Letter, Applicant’s Counsel, dated 10 Oct 12. 
 
 
 
 
                                   Panel Chair