RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-01841 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His non-judicial punishment (NJP), imposed under Article 15 
of the Uniform Code of Military Justice (UCMJ), be declared void 
and removed from his records. 

 

2. His referral Enlisted Performance Report (EPR) rendered for 
the period 15 Aug 06 through 15 Mar 07, be declared void and 
removed from his record. 

 

3. He be reinstated to the rank of Technical Sergeant (TSgt) 
with back pay and an adjusted date of rank (DOR). 

 

4. The period of performance of his referral EPR be corrected. 
(Administratively corrected) 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He met an Administrative Discharge Board (ADB) which found he 
did not commit the two acts he was punished for under the 
Article 15. Therefore, the Article 15, reduction in rank, and 
resulting referral EPR are unjust. 

 

In support of his appeal, the applicant provides copies of the 
ABD Record of Board Proceedings, and his referral EPR package. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant initially entered the Air Force on 26 Aug 92 and 
was progressively promoted to the rank of TSgt. 

 

On 28 Feb 07, the applicant’s commander issued him nonjudicial 
punishment under Article 15 of the UCMJ for violation of UCMJ, 
Article 134, based upon: 

 


 1. He did, on or about 22 Apr 06, commit an indecent 
assault upon a female staff sergeant, a person who was not his 
wife, by grabbing her hand and rubbing it on his genitals and by 
pulling down her shorts and underwear and attempting to place 
his penis inside her vagina with intent to gratify his sexual 
desires. 

 

 2. He did, on or about 22 Apr 06, unlawfully enter the 
dwelling house of the same female staff sergeant. 

 

For these acts, the applicant was punished by a reduction in 
grade to staff sergeant, with a date of rank of 7 Mar 07, and a 
reprimand. 

 

The applicant was rendered a referral EPR for the period 
15 Aug 06 through 15 Mar 06 (sic), which included the following 
statements: “During this period member indecently assaulted a 
female Airman for which he received an Article 15/demotion,” and 
“Vast potential—demonstrated poor judgment unbecoming of an Air 
Force NCO—consider for promotion.” 

 

On 18 Mar 09, the applicant’s commander issued him nonjudicial 
punishment under Article 15 of the UCMJ for violation of UCMJ, 
Article 111: the applicant did, on or about 2 Feb 09, 
physically control a vehicle, to wit: a passenger car, while 
drunk. 

 

For this act, the applicant was punished by reduction to the 
grade of Senior Airman, with a new date of rank of 18 Mar 09; 
forfeiture of $1,109 pay per month for two months, suspended 
through 17 Sep 09, after which time it was to be remitted 
without further action, unless sooner vacated; and, a reprimand. 

 

On 22 Oct 09, an ADB was convened to consider the applicant’s 
involuntary discharge from the Air Force. After considering all 
the evidence in the case, a majority of the voting members made 
the following findings: 

 

 a. *The applicant did not, on or about 22 Apr 06, commit 
an indecent assault upon the female staff sergeant, a person who 
was not his wife. 

 

 b. *The applicant did not, on or about 22 Apr 06, 
unlawfully enter the dwelling house of the same female staff 
sergeant. 

 

 c. **The applicant did, on or about 2 Feb 09, on Ramstein 
Air Base, Germany, physically control a vehicle while drunk. 

 

* Basis of the first Article 15 (contested) 

 

** Basis of the second Article 15 (uncontested) 

 

The ABD elected to retain the applicant on active duty. 

 


On 31 Aug 12, the applicant was relieved from active duty and 
retired from active duty, effective 1 Sep 12, due to attaining 
his high year of tenure in the rank of staff sergeant. 

 

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

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial with regard to applicant’s request 
to void his Article 15, and defers to other Air Force offices 
for recommendations on the referral EPR and reduction in rank. 
The applicant alleges injustice in that an ADB, in 2009, made 
the determination that he did not commit the crimes for which he 
received nonjudicial punishment in 2007. However, what the 
applicant fails to understand is that the ADB was only making 
determinations with regard to what it would consider in the 
course of making a retention decision. The commander at the 
time of the Article 15 had the best opportunity to evaluate the 
evidence in the case. With that perspective, the commander 
exercised the discretion that the applicant granted him when the 
applicant accepted the Article 15 and found nonjudicial 
punishment appropriate in the case. The legal review process 
showed 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 commander’s original 
nonjudicial punishment decision as the basis of injustice. 

 

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

 

AFPC/DPSID recommends denial of the applicant’s request to 
remove his referral EPR. AFI 36-2406, Officer and Enlisted 
Evaluation System, states that evaluators are strongly 
encouraged to comment on performance reports on misconduct that 
reflects a disregard of the law, whether civil law or the 
Uniform Code of Military Justice (UCMJ), or when adverse actions 
such as Article 15s, Letters of Reprimand, Admonishment, 
Counseling, or placement on the Control Roster have occurred. 
The applicant’s chain of command did choose to enter comments in 
the applicant’s EPR, making it a referral. The applicant was 
given the opportunity to rebut the administrative actions as 
well as the referral EPR, and declined to do so. No evidence 
has been provided to indicate any of the administrative actions 
commented on in the report have been rescinded or otherwise 
invalidated. Based upon the presumed sufficiency of the 
Article 15, its mention in the applicant’s contested report was 
appropriate. Once a report is accepted for file, only strong 
evidence to the contrary warrants correction or removal from an 
individual’s record. The applicant has not provided compelling 
evidence to show his referral EPR is unjust or inaccurate as 
written. However, administrative relief has been granted to 


correct the period of performance reflected on the referral EPR 
and associated referral memorandum. 

 

A complete copy of the AFPC/DPSID advisory, with attachments, is 
at Exhibit D. 

 

AFPC/DPSOE does not make a specific recommendation concerning 
the applicant’s request to restore his rank of TSgt, but 
provides background information on the applicant’s promotion 
history. The applicant was selected for promotion to TSgt 
during cycle 02E6 with a 1 Jun 03 DOR. He was tentatively 
selected for promotion to Master Sergeant (MSgt) during cycle 
06E7 with PSN 3886.0, which would have incremented 1 Jun 07. 
However, on 28 Feb 07, he received an Article 15. His 
punishment consisted of a reduction to the rank of SSgt and a 
reprimand. The applicant also received the contested referral 
EPR. On 10 Mar 09, the applicant received another Article 15 
for driving under the influence. His punishment included a 
reduction to the grade of Senior Airman (SrA). Should the Board 
grant the relief requested, they could direct the restoration of 
rank to TSgt with a DOR and effective date of 1 Jun 03. Since 
the member was already tentatively selected for promotion to 
MSgt during the cycle 06E7, the Board could reinstate his 
promotion to MSgt with a DOR of 1 Jun 07. If these corrections 
are made, the Mar 09 Article 15 would need to be corrected to 
reflect a reduction from MSgt to TSgt versus from SSgt to SrA. 
The applicant’s DOR to TSgt would then become 18 Mar 09, 
rendering him eligible for supplemental promotion consideration 
to MSgt beginning with cycle 11E7 (provided he is otherwise 
eligible and recommended by his commander). 

 

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

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 7 Aug 12 for review and comment within 30 days. As 
of this date, no response has been received by this office 
(Exhibit E). 

 

________________________________________________________________ 

 

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 find no 
evidence of error in this case and after thoroughly reviewing 


the documentation the applicant submitted in support of his 
appeal, we do not believe he has suffered from an injustice. 
Evidence has not been presented which would lead us to believe 
his nonjudicial punishment, referral EPR, or discharge were 
improper. The Board notes the Administrative Discharge Board 
(ADB) found the applicant did not commit the two offenses for 
which he received an Article 15 on 5 Mar 07. However, while 
arriving at its findings, an ADB may or may not have considered 
the same set of facts which were available to the original 
commander responsible for determining whether or not to issue 
nonjudicial punishment. Thus, an ADB does not have the 
authority to nullify an earlier nonjudicial punishment, reviewed 
and determined to be legally sufficient. The commander at the 
time of the Article 15 had the best opportunity to evaluate the 
evidence in the case. In cases of this nature, we are not 
inclined to disturb the judgments of the commanding officers 
absent a strong showing of abuse of their discretionary 
authority. We have no such showing here. The evidence 
indicates that, during the entire process, the applicant was 
offered every right to which he was entitled. The applicant has 
not provided any evidence showing the responsible commander or 
the higher authorities abused their discretionary authority; 
that his substantial rights were violated; or that any actions 
taken exceeded the maximum authorized by the UCMJ. Therefore, 
based on the available evidence of record, we find no basis upon 
which to favorably consider 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-2012-01841 in Executive Session on 29 Jan 13, under 
the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

 


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-01841 was considered: 

 

 Exhibit A. DD Form 149, dated 21 Mar 12, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 15 Jun 12. 

 Exhibit D. Letter, AFPC/DPSID, dated 6 Jul 12. 

 Exhibit E. Letter, AFPC/DPSOE, dated 18 Jul 12 

 Exhibit F. Letter, SAF/MRBR, dated 7 Aug 12. 

 Exhibit G. Letter, Applicant, undated. 

 

 

 

 

 

 Panel Chair 

X