RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-02512

			COUNSEL:  

			HEARING DESIRED:  YES 

________________________________________________________________

APPLICANT REQUESTS THAT:

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

2.  His Promotion Propriety Action (PPA) be expunged from his 
record, and he be allowed to pin-on Major at his original pin-on 
date.

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  The specifications that formed the basis of the NJP action, 
that he failed to comply with the weapon storage plan prescribed 
in his temporary duty (TDY) orders, and then lied about said 
failure, were insufficient.  He attempted to comply with the 
requirements of his weapon storage plan, which required him to 
store his weapons, a rifle and a pistol, at the armory at 
Ft. Bliss, Texas, or at the alternate facility at the White 
Sands Missile Range (WSMR), New Mexico while on leave in-route 
from deployment; however, due to circumstances beyond his 
control, neither facility was able to take possession of his 
weapons.  Since he was unable to execute his primary or 
alternate weapon storage plans due to circumstances that were 
beyond his control, he fully complied with his orders.  Having 
done so, he did what any other officer would have done and kept 
his weapons under his control at all times while on leave at his 
parent’s private residence.  Additionally, the weapon storage 
plan was unexecutable as it was completely silent about what to 
do in the case the first two alternatives were unavailable.

2.  When his commander asked him if he followed his orders, he 
simply said “Yes.”  In doing so, he was not guilty of lying 
about complying with the order; he returned safely to and from a 
deployment, unassisted, with the weapons entrusted to him, 
having traveled over 20,000 miles with these weapons and without 
clear direction or support along the journey.  Importantly, the 
question of where his weapons were stored was not asked.  This 
was the first conversation the applicant had with a new 
commander he had never met.  He planned on telling the commander 
that his approval of the weapons plan set the applicant up for 
failure, but wanted to make a good first impression and thought 
that immediately criticizing the commander was inappropriate. 

3.  His defense during the NJP process was inadequate and his 
commander abused his authority by denying him the opportunity to 
gather evidence in his defense.  His Area Defense Council (ADC) 
admitted that he had never defended an officer during a NJP 
proceeding and he was busy with a lot of other cases.  Due to 
his ADC’s busy schedule the applicant had to meet with the 
General (his Wg/CC) without the benefit of legal counsel.  He 
was stationed in Okinawa, Japan and his commander denied his 
request to return to Ft. Bliss to compile his evidence.  

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant initially began extended active duty as a 
commissioned officer in the Medical Service Corps (MSC) on 
3 Jan 05, and was subsequently promoted to the rank of captain.

On 8 Mar 10, the applicant was selected for promotion on the 
FY 10A Major MSC Central Selection Board, and received a 
projected pin-on date of 1 Sep 10.

On 14 May 10, the applicant’s commander notified him that he was 
considering whether to recommend that he be punished under 
Article 15 of the UCMJ for Violations of Articles 92 and 107.  

On 21 May 10, the applicant, through council, requested the 
commander drop the Article 15 to a Letter of Reprimand (LOR), 
and waived his right to court-martial and accepted non-judicial 
punishment (NJP). 

On 27 May 10, the applicant’s commander imposed NJP under 
Article 15 of the UCMJ for:

	a.  Violation of UCMJ, Article 92.  The applicant, having 
knowledge of a lawful order issued by (his commander) to 
transport his weapon to the Fort Bliss, TX armory after arrival, 
an order which it was his duty to obey, did, between 1 Feb 10 
and 6 Feb 10, fail to obey the same by wrongfully failing to 
transport his weapon to Fort Bliss armory upon arrival.  

	b.  Violation of UCMJ, Article, 107.  The applicant, did, 
at or near Kadena Air Base, Okinawa, Japan, on or about 
9 Feb 10, with intent to deceive make to (his commander) an 
official statement, that he stored his weapon at Fort Bliss or 
words to that effect, which statement was false in that the 
applicant never checked his weapon into Ft. Bliss armory, and 
was then known by him to be so false. 

He waived his right to trial by court-martial and accepted the 
nonjudicial punishment.  The commander determined that he did 
commit one or more of the offenses and imposed punishment 
consisting of a reprimand, and forfeiture of $1,000.00 pay per 
month for two months.  On 3 Jun 10, the applicant chose not to 
not appeal the Article 15.  On 2 Jul 10, the 5AF/CV directed the 
Article 15 be filed in the applicant’s Officer Selection Record 
(OSR).  

The applicant received a referral Officer Performance Report 
(OPR) for the period 25 May 09 through 22 Jul 10 which stated 
“Member received an Article 15 during the rating period for 
disobeying a lawful order/false official statement.” 

On 19 Jul 11, the applicant, through council, requested his wing 
commander set aside the Article 15.  The applicant’s wing 
commander denied that request on 15 Sep 11.  

On 9 Sep 10, the applicant’s commander initiated a Promotion 
Propriety Action (PPA) removing the applicant’s name from the 
major’s promotion list.  

On 22 Sep 11, the applicant, through council, requested that his 
new wing commander set aside the Article 15.  The applicant’s 
new wing commander denied that request on 20 Oct 11. 

On 21 Dec 12, the applicant, through council, requested that his 
commander’s supervisor, the Center Commander, set aside the 
Article 15.  The Center Commander denied that request on 
1 Feb 12.

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

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to 
remove the NJP, indicating there is no evidence of an error or 
injustice.  A review of the AF Form 3070 (NJP) indicates the 
applicant’s rights were observed throughout the process of the 
Article 15.  The applicant essentially does not allege error in 
how the Article 15 was processed.  Instead, what he essentially 
argues is that all of the prior decision makers ignored the 
evidence and, as a result, reached the wrong conclusions.  But 
the evidence indicates each commander involved in the Article 15 
process, and subsequent set-aside requests, considered the 
evidence and independently decided that nonjudicial punishment 
was appropriate to the circumstances.  There are sufficient 
facts in the record to reasonably support these conclusions.  
According to the Ft. Bliss Adjutant General, had the applicant 
asked the Military Police Desk for assistance he would have been 
brought to the MP armory where he could have stored his weapons.  
However, he did not do so.  Furthermore, this process included 
an independent commander, without prior contact with this 
matter, reaching the same conclusion, even after reviewing the 
evidence acquired by the applicant after his subsequent 
investigation.  The applicant’s remaining arguments are also not 
persuasive.  The applicant asserts his commander lied about 
their 9 Feb 10 conversation, but has not provided any evidence 
or rationale.  His assertions about his commander’s poor 
leadership during deployment and in approving a weapons plan he 
created are neither substantive nor relevant to the issue.  The 
applicant does not make a compelling argument that the Board 
should overturn the commander’s original nonjudicial punishment 
decision on the basis of an 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.  

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

AFPC/DPSOO recommends denial of the applicant’s request to 
remove the promotion propriety action.  AFI 36-2501, Officer 
Promotions and Selective Continuation, states commanders 
question promotion when the preponderance of evidence shows the 
officer has not met the requirement for exemplary conduct set 
forth in Title 10, U.S.C §8583 or is not mentally, physically, 
morally, or professionally qualified to perform the duties of 
the higher grade.  Air Force policy states that formal rules of 
evidence do not apply to a promotion propriety action.  In 
addition, there is no time line as to when the action should be 
initiated as long as it is prior to the pin-on date.  The 
removal action was reviewed by base and Air Force legal offices 
and the action was found to be legally sufficient to warrant the 
action taken.  

A complete copy of the AFPC/DPSOO evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reiterates his contentions and takes exception to 
several statements in the AFLOA/JAJM advisory.  He followed an 
unclear order, and was sent to the wrong place where the base 
policy was not to accept weapons from units not assigned there.  
His orders were to take his weapons to Ft. Bliss, and he did not 
disobey the order because he took his weapons to Ft. Bliss.  On 
this point alone, his Article 15 should be overturned.  To 
suggest he did not pursue storage of his weapon is preposterous.  
The date of his alleged violation is incorrect on the AF Form 
3070C.  He did transport his weapons to Ft. Bliss on 31 Jan 10, 
not the failure as alleged between 1-6 Feb 10.  The summary of 
the violation only finds him guilty of failing to take one 
weapon when he, in fact, had two weapons. This makes a false 
official document.  Failure to follow an order includes the 
element that the order is a certain lawful order; this element 
of certainty does not exist in this case.  Concerning his false 
statement, his conversation with his commander was not under 
oath, he had no rights read to him, and there were no witnesses.  
There was only an exchange of words between two people who were 
just meeting for the first time when an unfortunate 
misunderstanding took place between them.  Furthermore, the 
verbiage of the reprimand was revised to remove the phrase, “not 
just once, but again in Texas;” however, this line was 
considered by his commander in arriving at the proposed 
punishment prior to being crossed out.  The words showed a 
pattern of behavior.  After the pattern was debunked by the 
removal of these words, his punishment was not changed.  He also 
showed the JA lied to the commander with intent to deceive in an 
official document when he said there was no doubt the applicant 
had failed to pursue his alternate weapons plan.  In addition, 
he takes exception the timing of his PPA.  The DPSOO advisory 
states there is no time limit to the PPA as long as it is before 
the pin-on date.  His pin-on date was to be 1 Sep 10, and his 
promotion was removed on 9 Sep 10, exceeding the time limit 
allowed (Exhibit G).

________________________________________________________________

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 took 
notice of the applicant's complete submission, to include his 
response to the advisory opinions rendered in this case, in 
judging the merits of the case; however, we agree with the 
opinions and recommendations of the Air Force offices of primary 
responsibility, and adopt their rationale as the basis for our 
conclusion the applicant has not been the victim of an error or 
injustice.  The applicant’s assertions that the evidence was 
insufficient to support the specifications for which the 
applicant was punished are duly noted; however, we do not find 
these arguments or the documentation presented sufficient to 
undermine the basis of the NJP action.  In this respect, we note 
the contested Article 15 was found legally sufficient and it 
appears the applicant was provided all of the rights to which he 
was entitled, including the right to refuse the Article 15 and 
demand trial by court martial, which would have required a 
different standard for determining whether he committed the 
alleged offenses or not.  By waiving his right to trial by 
court-martial, the applicant accepted the commander’s evaluation 
of the evidence and his judgment as to his guilt or innocence 
and punishment.  Therefore, we believe the NJP action, ensuing 
referral OPR, and promotion propriety action were proper and we 
do not find the commander’s actions to be arbitrary or 
capricious.  Further, while the Board notes the applicant 
presented a variety of allegations to include that his commander 
lied, the JA lied, his legal defense was inadequate, his 
commander showed poor leadership, the summary of his violation 
only mentioned one weapon rather than two, words were lined out 
of his reprimand by the reviewing authority, and that the 
promotion propriety action was not timely, we do not find these 
arguments or the documentation provided sufficient to convince 
us the applicant was denied rights to which he was entitled, 
appropriate standards were not applied, or that his commander 
abused his discretionary authority.  Ultimately, while the 
applicant makes a variety of arguments intended to impugn the 
actions of his commander, the evidence before us indicates the 
applicant’s predicament is the result of a lack of due diligence 
on his part in ensuring that his own weapon storage plan was 
executable, and was exacerbated by his poor judgment when he 
decided to be less than truthful when his commander asked him 
about it.  Therefore, we find no basis to recommend granting the 
relief sought in this application.

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 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-2012-02512 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-2012-02512 was considered:

     Exhibit A.  DD Form 149, dated 10 May 12, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLOA/JAJM, dated 23 Jul 12.
     Exhibit D.  Letter, AFPC/DPSOO, dated 30 Aug 12.
     Exhibit E.  Letter, SAF/MRBR, dated 1 Oct 12.
     Exhibit F.  Letter, Applicant, dated 19 Oct 12.




                                   
                                   Panel Chair