DOCKET NUMBER:  BC-2012-00775 
COUNSEL:  NONE 
HEARING DESIRED: NO 

                       RECORD OF PROCEEDINGS 
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 
IN THE MATTER OF: 
 
    
 
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
The term “Violation of Article 93,” in section 14, paragraph 2, 
of  his  AF  Form  3070A,  Record  of  Nonjudicial  Punishment 
Proceedings  (AB  –TSgt),  dated  17 April 2009  be  completely 
eliminated. 
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
In the original document, violation of Article 93 was lined out 
by  the  administering  commander.    In  the  copy  scanned  into  the 
Automated Records Management System it is not lined through and 
it  appears  that  he  was  in  violation  of  Article  93,  UCMJ.    The 
entire  Article  93  violation  to  include  the  term  “Violation  of 
Article  93,”  was  not  eliminated  by  the  legal  office  when 
scanned.        It  has  been  three  years  since  the  error  occurred.  
He was deployed to Iraq when he noticed the error.   
 
In support of his request, the applicant provides copies of page 
2  from  his  original  and  scanned  version  of  his  AF  Form  3070A, 
Record of Nonjudicial Punishment Proceedings (AB thru TSgt).  
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit A.  
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
The applicant is currently serving on active duty in the Regular 
Air Force in the grade of SSgt.  
 
On  22  October  2010,  the  applicant  was  tried  and  sentenced  with 
punishment under Article 15 UCMJ after an investigation revealed 
that  he,  a  married  man,  engaged  in  a  sexual  relationship  with 
his  subordinate,  a  married  female  who  was  not  his  wife.    The 
applicant  was  charged  with  one  specification  of  dereliction  of 
duty  in  violation  of  Article  92,  one  specification  of 
maltreatment  in  the  form  of  sexual  harassment  in  violation  of 
Article  93,  and  one  specification  of  adultery  in  violation  of 
Article  134.  The  applicant  was  briefed  on  his  right  to  consult 

 

 
 

the  Area  Defense  Counsel  (ADC).    He  consulted  counsel,  and 
waived  his  right  to  trial  by  court-martial  and  accepted  the 
nonjudicial  punishment  proceedings.    He  elected  to  make  a 
written  presentation  and  a  personal  appearance  before  the 
commander.   
 
On  17  April  2009,  the  commander  determined  the  applicant 
committed  the  offenses  of  dereliction  of  duty  and  adultery  but 
elected  to  withdraw  the  alleged  offense  of  maltreatment  in  the 
form  of  sexual  harassment  in  violation  of  Article  93.    The 
applicant’s  imposed  punishment  was  reduction  to  the  rank  of 
staff  sergeant,  a  suspended  forfeiture  of  $1,  335.00  per  month 
for two months, and a reprimand.   
 
________________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
AFLOA/JAJM  recommends  denial.    JAJM  states  in  accordance  with 
Air  Force  Instruction  (AFI)  51-202,  Nonjudicial  Punishment, 
dated  7  November  2003,  the  commander  drew  a  line  through  the 
language  of  the  specification  for  maltreatment  in  the  form  of 
sexual harassment, in violation of Article 93, UCMJ, indicating 
his  intention  to  withdraw  the  specification,  and  both  the 
commander  and  the  applicant  dated  and  initialed  the  lined  out 
portion.    No  line  was  drawn  through  the  words  “Violation  of 
Article  93,”  that  appeared  directly  above  the  withdrawn 
specification.    The  commander  then  imposed  the  punishment  for 
the  two  specifications.    The  applicant  did  not  appeal  the 
commander’s  decision.    The  Article  15  action  was  reviewed  and 
determined to be legally sufficient.   
 
In  this  case  the  applicant  is  not  challenging  the  validity  of 
the  Article  15  itself,  nor  of  the  punishment  imposed  by  the 
commander.  The applicant requests, not a substantive correction 
of an error or clear injustice, but a clerical correction to the 
method  by  which  the  commander  used  to  withdraw  one  of  the 
alleged  specifications.    The  commander’s  methodology,  however, 
lawfully complied with the AFI and was deemed legally sufficient 
by an independent legal review, dated 1 May 2009.  On the face 
of  the  document,  it  is  clear  that  the  specification  was 
withdrawn  and  the  applicant  was  not  found  in  violation  of 
Article 93, UCMJ.  The punishment imposed and the administrative 
effect of the document is in no way altered or modified by the 
requested correction.  In other words, the applicant’s requested 
correction results in no discernable change to the impact or the 
outcome  of  the  nonjudicial  action.    The  Article  15  action  was 
reviewed and determined to be legally sufficient.   
 
The applicant does not make a compelling argument that the Board 
should alter or modify the form with which the commander used to 
withdraw  the  specification  of  maltreatment  in  violation  of 
Article  93,  UCMJ.    There  is  no  injustice  even  alleged,  as  the 
requested  correction  would  have  no  effect  on  the  ultimate 

 

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disposition  of  the  applicant’s  case.    The  commander’s  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 complete AFLOA/JAJM evaluation is at Exhibit C. 
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
A  copy  of  the  Air  Force  evaluation  was  forwarded  to  the 
applicant  on  25  April  2012,  (exhibit  D)  for  review  and  comment 
within  30  days.    To  date,  this  office  has  not  received  a 
response.   
 
________________________________________________________________ 
 
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,  the  Board  majority  agrees  with  the  opinion 
and  recommendation  of  the  Military  Justice  Division  and  adopts 
its rationale as the basis for our conclusion that the applicant 
has not been the victim of an error or injustice.  Therefore, in 
the  absence  of  evidence  to  the  contrary,  the  majority  of  the 
Board finds no basis to recommend granting the relief sought in 
this application. 
 
________________________________________________________________ 
 
RECOMMENDATION OF THE BOARD: 
 
A  majority  of  the  Board  finds  insufficient  evidence  of  error  or 
injustice and recommends the application be denied. 
 
________________________________________________________________ 
 
The  following  members  of  the  Board  considered  this  application 
BC-2012-00775 in Executive Session on 30 August 2012, under the 
provisions of AFI 36-2603: 
 
 
 
 

  Panel Chair 
  Member 
  Member 

 
 

 

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By  a  majority  vote,  the  Board  recommended  denial  of  the 
application.    XXXXXXXXXX  voted  to  correct  the  record  but  does 
not wish to submit a Minority Report.  The following documentary 
evidence was considered: 
 
    Exhibit A.  DD Form 149, dated 13 February 2012, w/atchs. 
    Exhibit B.  Applicant’s Master Personnel Records. 
    Exhibit C.  Letter, AFLOA/JAJM, dated 19 April 2012. 
    Exhibit D.  Letter, SAF/MRBR, dated 25 April 2012.  
 
 
 
 
                                     
                                   Panel Chair 
 

 

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