RECORD OF PROCEEDINGS 
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 
IN THE MATTER OF: 
DOCKET NUMBER: BC-2012-01954 
 
   
COUNSEL:  NONE 
   
HEARING DESIRED:  NOT INDICATED 
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
1.  The nonjudicial punishment he received on 25 Jul 74, be set 
aside. 
 
2.  His grade of sergeant (Sgt) be restored with the associated 
back pay.   
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
His Article 15 was unjust, because while on leave from Japan to 
Colorado,  he  was  subsequently  diagnosed  with  infectious 
hepatitis  and  was  hospitalized.    His  medical  provider  advised 
that  he  could  not  travel,  so  he  requested  that  someone  inform 
his command; however, this was not done and he was charged with 
being absent without leave (AWOL) and given an Article 15.  
 
Since  there  is  no  basis  for  the  Article  15,  his  date  of  rank 
(DOR)  to  the  grade  of  Sgt  with  associated  back  pay  should  be 
restored. 
 
In  support  of  his  appeal,  the  applicant  provides  a  personal 
statement. 
 
The  applicant’s  complete  submission,  with  attachment,  is  at 
Exhibit A. 
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On  25  Jul  74,  the  applicant  was  offered  nonjudicial  punishment 
under  Article  15,  Uniform  Code  of  Military  Justice  (UCMJ).    He 
was  an  aircraft  maintenance  specialist  assigned  to  Kadena  Air 
Base,  Japan.    He  was  charged  with  one  specification  of  absence 
without  authority  in  violation  of  Article  86,  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  not  to  present  written 
matters  and  did  not  make  a  personal  appearance  before  the 
commander.    On  25  July  1974,  the  commander  decided  that  the 
applicant  had  committed  the  offense  alleged.    The  commander 
imposed  punishment  consisting  of  a  reduction  to  the  rank  of 
airman  first  class.    On  13  Aug  74,  the  applicant  appealed  the 
commander's  decision  and  sought  to  have  the  Article  15  set 
aside.    However,  his  appeal  was  denied.    On  11  Oct  74,  the 
Article  15  action  was  reviewed  and  determined  to  be  legally 
sufficient.   
 
The  applicant  was  discharged,  on  3  Jan  75,  with  service 
characterized  as  honorable,  in  the  grade  of  airman  first  class 
(A1C/E-3).  He was credited with 3 years, 5 months and 21 days 
of active service. 
 
________________________________________________________________ 
 
THE AIR FORCE EVALUATION: 
 
AFLOA/JAJM recommends denial, stating, in part, the application 
is untimely and, therefore, should be denied.  Additionally, the 
applicant  has  not  shown  a  clear  error  or  injustice  which  would 
require the requested relief be granted. 
 
Nonjudicial punishment is authorized by Article 15, Uniform Code 
of  Military  Justice  (UCMJ),  Title  10  U.S.C.,  Section  815,  and 
governed  by  the  Manual  for  Courts-Martial  (Part  V)  and  AFI  51-
202,  Nonjudicial  Punishment.    This procedure permits commanders 
to  dispose  of  certain  offenses  without  trial  by  court-martial 
unless  the  service  member  objects.    Service  members  first  must 
be  notified  by  their  commanders  of  the  nature  of  the  charged 
offenses,  the  evidence  supporting  the  offenses,  and  the 
commander's  intent  to  impose  the  punishment.    The  member  may 
consult  with  a  defense  counsel  to  determine  whether  to  accept 
the  nonjudicial  punishment  or  demand  trial  by  court-martial.  
Accepting the proceedings is simply a choice of forum; it is not 
an admission of guilt. 
 
Nonjudicial  punishment  is  also  not,  when  imposed,  a  criminal 
conviction.    A  member  accepting  Article  15  proceedings  may 
submit  written  matters  to,  and  have  a  hearing  with,  the 
commander  imposing  the  punishment.    The  member  may  have  a 
spokesperson  at  the  hearing,  may  request  that  witnesses  appear 
and  testify,  and  may  present  evidence.    The  commander  must 
consider  any  information  offered  by  the  member  and  must  be 
convinced  by  reliable  evidence  that  the  member  committed  the 
offenses  before  imposing  punishment.    Members  who  wish  to 
contest  their  commander's  determination  or  the  severity  of  the 
punishment imposed may appeal to the next higher commander.  The 
appeal  authority  may  deny  the  appeal  altogether  if  the  appeal 

 

 
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authority  agrees  with  the  action  taken  or  may  remove  or  modify 
the Article 15 if he or she disagrees in whole or in part with 
the  action.    That  said,  a  commander  considering  a  case  for 
disposition  under  Article  15  exercises  largely  unfettered 
discretion in evaluating the case, both as to whether punishment 
is  warranted  and,  if  so,  the  nature  and  extent  of  punishment. 
The exercise of that discretion should generally not be reversed 
or  otherwise  changed  on  appeal  or  by  the  Board  absent  good 
cause. 
 
The  MCM  and  AFI  51-202  provide  for  certain  relief  from 
nonjudicial  punishment,  specifically,  mitigation,  remission, 
suspension, and set aside.  A set aside of an Article 15 is the 
removal of the punishment from the record and the restoration of 
the  service  member's  rights,  privileges,  pay,  or  property 
affected by the punishment.  Setting aside an Article 15 action 
restores  the  member  to  the  position  held  before  imposition  of 
the punishment, as if the action had never been initiated.  Set 
aside  of  punishment  should  not  routinely  be  granted.    Rather, 
set  aside  is  to  be  used  strictly  in  the  rare  and  unusual  case 
where a genuine question about the service member's guilt arises 
or where the best interests of the Air Force would be served. 
 
The applicant alleges injustice in that the commander failed to 
accept  his  excuse  for  his  failure  to  return  from  his  stateside 
leave within the authorized time.  The applicant, however, does 
not allege error in how the Article 15 was processed.  A review 
of the applicant's record indicates that the applicant's rights 
were  observed  throughout  the  process  of  the  Article  15.    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  this 
case. Moreover, the commander's decision was scrutinized by the 
applicant's  exercise  of  his  right  to  appeal.    The  appellate 
authority was similarly unpersuaded by the applicant's argument 
in  his  defense.    The  legal  review  process  showed  that  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  on  the  basis  of  injustice.    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  with 
the limits of the commander's authority and discretion. 
 
The complete JAJM evaluation is at Exhibit C. 
 

 

 
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AFPC/DPSOE defers their recommendation and notes that AFLOA/JAJM 
has  reviewed  this  case,  found  no  error  or  injustice,  and 
recommends  denial  of  applicant's  request  to  set  aside  the 
Article 15.  
 
They note the applicant entered active duty, on 22 Jun 71, as an 
airman basic (AB).  He was promoted to grade of airman (Amn), on 
4 Aug 71; to the grade of airman first class (A1C), on 1 Feb 72, 
and to the grade of Sgt on 1 Apr 74.  He received an Article 15, 
on  25  Jul  74,  for  being  absent  without  leave.    His  punishment 
consisted of a reduction to the rank of A1C.  The applicant was 
honorably  discharged  on  3 Jan  75  in  the  rank  of  A1C  after 
serving 3 years, 5 months, and 21 days on active duty. 
 
The complete DPSOE evaluation is at Exhibit D. 
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 
 
Copies  of  the  Air  Force  evaluations  were  forwarded  to  the 
applicant on 8 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 not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file. 
 
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.    The  applicant’s  case  has  undergone  an  exhaustive 
review  by  the  Air  Force  office  of  primary  responsibility  and 
AFLOA/JAJM;  however,  other  than  his  own  assertions,  the 
applicant  has  not  presented  any  evidence  that  the  commander 
abused  his  discretionary  authority  in  imposing  the  nonjudicial 
punishment.    Therefore,  we  agree  with  the  opinions  and 
recommendations of the Air Force OPRs and adopt their rationale 
as  the  basis  for  our  decision  the  applicant  has  failed  to 
sustain  his  burden  that  he  has  suffered  either  an  error  or  an 
injustice.  In the absence of evidence to the contrary, we find 
no basis to recommend granting the relief sought.   
 
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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-2012-01954  in  Executive  Session  on  15  November  2012, 
under the provisions of AFI 36-2603: 
 
The following documentary evidence was considered: 
 
    Exhibit A.  DD Form 149, dated 1 May 12, w/atchs.  
    Exhibit B.  Applicant's Master Personnel Records. 
    Exhibit C.  Letter, AFLOA/JAJM, dated 26 Jun 12. 
    Exhibit D.  Letter, AFPC/DPSOE, dated 20 Jul 12. 
    Exhibit E.  Letter, SAF/MRBR, dated 8 Aug 12. 
 
 
 
 
                                   Panel Chair 

 

 
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