RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012- 02078 

 

 COUNSEL: 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His 30 March 2009, non-judicial punishment under Article 15 
of the Uniform Code of Military Justice (UCMJ), be set aside and 
removed from his records. 

 

2. The Promotion Recommendation Form (PRF), prepared for the 
P0311C Captain Central Selection Board (CSB), be reaccomplished 
without reference to the nonjudicial punishment. 

 

3. His corrected record be considered for on-time promotion by 
a Special Selection Board (SSB) for the P0311C Captain CSB. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

In a combined seven-page brief of counsel, with the applicant’s 
concurrence, the following contentions are made:: 

 

 a. The applicant is an RC-135 Rivet Joint Navigator who began 
his career as an enlisted member of the Regular Air Force. As 
an enlisted member he was considered by his commander to be the 
top noncommissioned officer who was already performing the 
duties of a junior officer on a continuous basis. 

 

 b. Following his commissioning, while at navigator training, 
the applicant and his wife were involved in a motor vehicle 
accident in the early morning hours on 25 April 2009. He rear 
ended a truck with his car. A witness indicated that the 
applicant appeared to be exiting the roadway but then veered 
back onto the roadway just before the accident. The airbags in 
the applicant’s car deployed impacting both he and his wife. 
Neither they nor the truck driver were injured in the collision. 
The responding police officers determined to arrest the 
applicant for driving while intoxicated (DWI). 

 

 c. Upon his arrest the applicant was transported to the local 
hospital where two vials of his blood were drawn for testing. 
An alcohol analysis laboratory report, dated 29 May 2009, 
purported to reflect the result of the testing on one or both 


vials of blood indicated blood alcohol content (BAC) of 0.19 
grams of alcohol per 100 milliliters of blood. 

 

 d. On 9 June 2009, the alleged DWI case against the applicant 
was dismissed by the assistant criminal district attorney. The 
assistant criminal district attorney declined to prosecute the 
DWI intoxicated offense against the applicant because of 
insufficient evidence. 

 

 e. Notwithstanding the assistant criminal district attorney’s 
decision that there was insufficient evidence to prosecute the 
case, the applicant’s command initiated nonjudicial punishment 
proceedings against him. On 24 June 2009, the wing commander 
formally notified the applicant that she was considering whether 
she should recommend to the numbered Air Force (AF) commander 
that he be punished under Article 15, UCMJ for violation of 
Article 111, Drunken or reckless operation of vehicle, aircraft 
or vessel. 

 

 f. Notably the specification alleged the applicant controlled 
a vehicle while the alcohol concentration in his blood was, as 
shown by chemical analysis, equal to or exceeding .08 grams of 
alcohol per 100 milliliters of blood, which was the limit under 
the Texas Penal Code, section 49-04. The applicant consulted a 
lawyer, accepted the nonjudicial punishment proceedings, 
provided a written presentation and requested a non-public 
personal appearance. The numbered AF commander determined that 
the applicant had violated Article 111 as charged and 
forfeitures and a reprimand were imposed. The applicant 
appealed the decision against him but the appellate authority 
denied the appeal. The record of the nonjudicial punishment 
proceedings was placed in the applicant’s Officer Selection 
Record (OSR). 

 

 g. The applicant was considered for promotion to the grade of 
captain during the “C” cycle in 2011, while in the promotion 
zone (Board PO311C). Prior to the board his senior rater gave 
him a “Do Not Promote This Board” overall recommendation as a 
direct result of the nonjudicial punishment actions. 

 

 h. The applicant made mistakes on the evening in question but 
he did not violate the UCMJ by driving while intoxicated. He 
was neither impaired nor drunken, but most importantly, there is 
no reliable chemical analysis to establish that his BAC was over 
the required limit. The applicant’s clearly demonstrated 
potential to make continued significant contributions to the Air 
Force depends on the Board’s sense of justice and fairness. 
They urge that the error and injustice be recognized and the 
record be corrected as requested. 

 

In support of his request, the applicant provides his counsel’s 
brief with attachments. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving in the Regular Air Force in 
the grade of First Lieutenant, O-2. 

 

On 24 January 2009, the applicant’s commander offered him 
nonjudicial punishment proceedings (NJP) under Article 15 UCMJ 
for one specification of a violation of Article 111. The 
applicant accepted the NJP and waived his right to trial by 
court-martial. On 2 July 2009, the commander determined the 
applicant did commit the offense and imposed the Article 15. 
The applicant’s imposed punishment was a reprimand and 
forfeiture of $1,500.00 per month for two months. The applicant 
appealed the commander’s decision. The appeal was denied and 
the Article 15 proceedings were reviewed and determined to be 
legally sufficient. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states the applicant alleges 
injustice in that the evidence was insufficient to meet the 
legal standard of proof of beyond a reasonable doubt. He argues 
that the proper forensic protocol was not followed in the taking 
of his blood sample and, the results of that blood test are, 
therefore, unreliable. There is, however, no scientific 
evidence to support the proposition that an alcohol swab, used 
to clean an injection site prior to a blood draw, can impact the 
results of a blood alcohol test with any degree of significance. 

 

Additionally, the applicant does not allege error in how the 
Article 15 was processed. A review of the AF Form 3070C, Record 
of Nonjudicial Punishment (Officer), 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, as 
evidenced in this case. The applicant raised this same argument 
in his defense of the Article 15 with his commander, and with 
the commander’s superior on appeal. With that perspective, the 
commander exercised the discretion that the applicant granted 
her when he accepted the Article 15 and found nonjudicial 
punishment appropriate. Moreover, the commander’s decision was 
scrutinized by the applicant’s exercise of his right to appeal. 
The legal review process showed that the commander did not act 
arbitrarily or capriciously in making her decision. 

 

The evidence that the commander based her decision on included 
the fact the applicant admits, and at least two additional 


witnesses all report, that he had consumed several alcoholic 
drinks before driving his vehicle. An eyewitness to the 
accident observed that the applicant was driving in a reckless 
manner and at a high rate of speed. The police officer who 
responded to the accident smelled the odor of alcohol on the 
applicant’s breath and the blood test, while not conducted by a 
laboratory technician qualified by the county, was conducted by 
a phlebotomist who, by all other indications, was professionally 
capable of taking a sample of the blood, revealed more than 
twice the legal limit of alcohol in the applicant’s blood 
stream. The mere fact the applicant argues an alcohol swab may 
have been used to clean the injection site prior to the taking 
of the blood, does not account for the excessive amount of 
alcohol detected in his system. Nor does it negate the other 
factors of impairment that were observed by witnesses and the 
arresting officer. 

 

Neither is it persuasive that the state of Texas elected not to 
prosecute the case against the applicant. There are a number of 
reasons why one jurisdiction might defer prosecution in any 
given case and a commander’s prerogative, to offer nonjudicial 
punishment in the maintenance of good order and discipline 
within the ranks of those under his command, is not subject to 
the discretion exercised by a current jurisdiction. 

 

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 within 
the limits of the commander’s authority and discretion. The 
applicant has not shown a clear error or injustice. 

 

The complete AFLOA/JAJM evaluation is at Exhibit B. 

 

AFPC/DPSID recommends denial. DPSID states based on a lack of 
corroborating evidence and documentation, and legal sufficiency 
pertaining to the issuance of Article 15 punishment, they 
recommend that the PRF not be substituted within the applicant’s 
permanent evaluation record. 

 

The applicant received a “Do Not Promote” PRF in conjunction 
with being found guilty of violating Article 111 of the UCMJ; 
specifically for physically controlling a vehicle with a blood 
alcohol level at or exceeding the legal limit. In accordance 
with (IAW) AFI 36-2406, Officer and Enlisted Evaluations 
Systems, paragraph 1.3.1., evaluators are strongly encouraged to 
comment in performance reports (and an officer’s next PRF) on 
misconduct that reflects a disregard of the law, whether civil 
or the UCMJ, or when adverse actions such as Article 15, Letters 
of Reprimand, Admonishment or Counseling, or placement on the 
Control roster have been taken.” In this case the senior rater 
did choose to comment on the contested PRF and elected to mark 
the PRF with “Do Not Promote this Board.” 


 

The applicant in his appeal seeks for this PRF to be substituted 
with a newly accomplished PRF which does not contain any 
reference to the Article 15 action or underlying arrest. 
However, the senior rater, as the author of the PRF has the sole 
discretion in deciding what accomplishments to include or not 
include in the document. IAW AFI 36-2401, Correcting Officer an 
Enlisted Evaluation Reports, changing any content present in 
section IV of the PRF requires not only a re-accomplished PRF, 
but also the written justification of the senior rater who 
completed the original PRF. The applicant, in this appeal, has 
provided none of these documents and only states in his request 
that he wishes a new PRF be accomplished. Without such critical 
documents, no basis is formed by the applicant to warrant 
consideration to substitute the contested PRF. 

 

The Article 15 action has not been set aside nor did the action 
of the applicant not exist. Therefore, their contention is that 
the comments referencing this fact on the contested PRF are 
fair, accurate and IAW AFI 36-2406 instructional guidance. An 
evaluation report is considered to represent the rating chain’s 
best judgment at the time it is rendered. They contend that 
once a report is accepted for file, only strong evidence to the 
contrary warrants correction or removal from an individual’s 
record. The burden of proof is on the applicant. He has not 
substantiated the contested report was not rendered in good 
faith by all evaluators based on knowledge available at the 
time. The applicant has not provided any compelling evidence to 
show the PRF is unjust or inaccurate as written. 

 

The complete AFPC/DPSID evaluation is at Exhibit C. 

 

AFPC/DPSOO recommends denial. DPSOO states based on 
AFLOA/JAJM’s and AFPC/DPSID’s denials to set aside and remove 
the Article 15 and substitute the PO311C PRF, they recommend the 
Board deny the applicant’s request for SSB consideration. 

 

The complete AFPC/DPSOO evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

In their response, counsel and applicant indicate their 
objections to the JAJM and DPSID analysis and comments. They 
expand on their contention that it is not that the evidence was 
“insufficient” to prove that there was alcohol in the 
applicant’s blood stream, but that there was not reliable 
evidence to prove a prohibited level of alcohol concentration in 
his blood stream. They refer again to the specification which 
explicitly refers to an alcohol concentration in the applicant’s 
blood as shown by chemical analysis. Clearly evidence of 
consumption of some alcohol (whether by admission or witness 
observation) does not constitute chemical analysis or proof of 


any specific level of alcohol concentration as is required. It 
is also a flawed circular logic to rely upon the tests 
themselves to argue that those very results are reliable. 

 

They further contend that this is a case where a still promising 
officer made some mistakes by driving when he was exhausted, and 
getting into an accident. Though he had consumed alcohol 
earlier in the evening, the evidence shows that he had stopped 
drinking hours before he attempted to drive home, and that he 
did not display any discernable signs of intoxication or 
drunkenness. Because he got into an accident by falling asleep 
at the wheel, he had blood drawn for testing, voluntarily, and 
unfortunately, the entire process of the collection and testing 
of that blood was wholly unreliable for legal purposes. A 
prosecutor rejected it, as did a judge; nevertheless, the 
applicant was punished under Article 15. They request the Board 
correct the resulting error and injustice. 

 

The applicant’s complete response, with attachment, is at 
Exhibit F. 

 

________________________________________________________________ 

 

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. The 
applicant’s contentions are duly noted; however, we do not find 
these assertions, in and by themselves, sufficiently persuasive 
to override the evidence of record or the rationale provided by 
the Air Force Legal Operations Agency. We are not persuaded by 
the evidence that the actions taken by his commander were beyond 
her scope of authority, inappropriate, or arbitrary and 
capricious. Further, while the applicant’s counsel contends the 
evidence was insufficient to meet the legal standard of proof of 
beyond a reasonable doubt, there is no such requirement in the 
NJP forum as there is during trial by court-martial. The 
applicant was provided an opportunity to request such a forum, 
with its higher standard of evidence but, after consulting with 
legal counsel, instead chose to accept the NJP Therefore we do 
not find a basis to recommend setting aside the Article 15 and 
removing it from his records. In view of this determination, 
there exist no bases upon which to recommend favorable 
consideration of the remainder of his requests. 

 

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 issues involved. 
Therefore, the request for a hearing is not favorably 
considered. 

 

________________________________________________________________ 

 

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. 

 

________________________________________________________________ 

 

The following members of the Board considered this application 
in Executive Session on 23 January 2013, under the provisions of 
AFI 36-2603: 

 

The following documentary evidence was considered in AFBCMR 
Docket Number BC-2012- 02078: 

 

 Exhibit A. DD Form 149, dated 4 May 2012, w/atchs. 

 Exhibit B. Letter, AFLOA/JAJM, dated 25 June 2012. 

 Exhibit C. Letter, AFPC/DPSID, dated 6 August 2012. 

 Exhibit D. Letter, AFPC/DPSOO, dated 30 August 2012. 

 Exhibit E. Letter, SAF/MRBR, dated 11 September 2012. 

 Exhibit F. Letter, Counsel, dated 3 October 2012, w/atchs. 

 

 

 

 

 

 Panel Chair 
, Panel Chair 

, Member 

 , Member