RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-02824
		COUNSEL:  NONE
		HEARING DESIRED:  YES

_____________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Record of Nonjudicial Punishment (NJP), imposed on 
13 Sep 2010, pursuant to Article 15, Uniform Code of Military 
Justice (UCMJ), be set aside and removed from his records.

2.  The AF Form 910, Enlisted Performance Report (EPR) (AB thru 
TSgt), rendered for the period 1 Dec 2009 through 31 Nov 2010, 
be declared void and removed from his records.

3.  He receive supplemental promotion consideration to the grade 
of technical sergeant (TSgt, E-6).

_____________________________________________________________

APPLICANT CONTENDS THAT:

The commander considered additional information without his 
knowledge and withheld the information until he appealed the 
original verdict.

Two witness statements are similar to one another and lacked 
proof beyond a reasonable doubt that he engaged in inappropriate 
behavior.

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

_____________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the grade of staff 
sergeant (SSgt, E-5) having assumed the grade and effective with 
a date of rank of 1 May 2009. 

On 13 Sep 2010, the commander offered him NJP under Article 15, 
UCMJ, for one specification of dereliction of duty in that on 24 
Aug 2010, he willfully failed to refrain from maintaining a 
professional work environment by exhibiting flirtatious behavior 
towards senior airman (SrA) L---, in violation of Article 92, 
UCMJ.

The applicant consulted with defense counsel, accepted the 
Article 15, and waived his right to demand trial by court-
martial.  He elected to present written matters and made a 
personal appearance before the commander.

On 27 Sep 2010, the commander decided he had committed the 
charged offense and imposed punishment consisting of a suspended 
reduction to the rank of SrA and a forfeiture of $573.00 pay.

The applicant appealed the commander's decision and submitted 
written matters.  On 29 Sep 2012, his commander denied his 
appeal.  On 1 Oct 2010, the appellate authority denied his 
appeal.  The Article 15 action was reviewed and determined to be 
legally sufficient.

The remaining relevant facts pertaining to this application are 
described in the letter prepared by the Air Force office of 
primary responsibility at Exhibit C.

_____________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to remove 
the Article 15 and states, in part, nonjudicial punishment is 
authorized by Article 15, UCMJ (10 U.S.C. § 815), and governed by 
the Manual for Courts-Martial (Part V) and AFI 51-202, 
Nonjudicial Punishment.  A commander considering a case for 
disposition under Article 15 exercises personal discretion in 
evaluating the case, both as to whether nonjudicial punishment is 
appropriate, and, if so, as to the nature and amount of 
punishment. This procedure permits commanders to dispose of 
certain offenses without trial by court-martial unless the 
service member objects.  

The applicant alleges that his due process rights were violated 
because the commander considered additional evidence that was 
not provided to the applicant when the Article 15 was offered.  
The evidence in question consists of a letter of reprimand (LOR) 
he received in Jul 2010 for being flirtatious and overly 
familiar with female trainees and several Training Assessment 
Surveys, which also alleged that he engaged in flirtatious 
conduct with female trainees.

After the commander offered the Article 15 and the applicant 
accepted, his first sergeant told him that the commander had 
considered these documents, but had not provided them to the 
applicant.  Consequently, he appealed the Article 15 on the 
basis that he was not provided these documents.  As such, prior 
to considering the appeal, his commander provided these 
documents to the applicant and his Area Defense Counsel.  The 
applicant was then able to address the LOR and the Training 
Assessment Surveys in his Article 15 appeal.  Subsequently, his 
commander was then able to consider the applicant's response to 
these documents in his appeal.  Upon reviewing his written 
appeal, the commander denied his appeal.  Similarly, prior to 
appealing the Article 15 to the appellate authority, the 
applicant had received the additional evidence and addressed it 
in his appeal.  The appellate authority reviewed his appeal and 
denied it. The legal review process showed that the commander 
did not act arbitrarily or capriciously in making his decision.

The applicant also alleges that there was no proof beyond a 
reasonable doubt that he engaged in flirtatious behavior with 
SrA L---.  However, both SrA L--- and SrA D--- were consistent 
in their statements and stated that they viewed his conduct as 
inappropriate.  This evidence underscores that the commander at 
the time of the Article 15 had the best opportunity to evaluate 
the evidence in the case.  His record, which was considered as 
part of his nonjudicial punishment, reflects a history of 
inappropriate contact with females, highlighted by flirtatious 
comments.  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.

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 AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSID recommends denial of the applicant’s request to 
remove the contested report.  DPSID states the applicant did not 
file an appeal through the ERAB under the provisions of AFI 36-
240l, Correcting Officer and Enlisted Evaluation Reports.  
Moreover, an evaluation report is considered to represent the 
rating chain's best judgment at the time it is rendered.  Once a 
report is accepted for file, only strong evidence to the 
contrary warrants correction or removal from an individual's 
record.  He has not provided any compelling evidence to show 
that the report is unjust or inaccurate as written.

The complete DPSID evaluation is at Exhibit D.

AFPC/DPSOE recommends denial of the applicant’s request for 
promotion consideration to the grade of technical sergeant 
(TSgt, E-6).  DPSOE states that based on his 1 May 2009 date of 
rank to SSgt, the first time he was eligible for promotion 
consideration to TSgt was cycle 11E6.  However, on 27 Sep 
2010 he received an Article 15 for dereliction of duties in that 
he willfully failed to refrain from maintaining a professional 
work environment by exhibiting flirtatious behavior towards a 
subordinate airman.  His punishment consisted of a reduction to 
the grade of SrA, suspended through 20 Mar 2011, and forfeiture 
of $573.00 pay.  He also received a referral EPR for the period 
1 Dec 2009 through 30 Nov 2010.  These actions rendered him 
ineligible for promotion consideration in accordance with AFI 
36-2502, Airman Promotion/Demotion Programs, Table 1.1., Rules 
20 and 22.


The complete DPSOE evaluation is at Exhibit E.

_____________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

On 23 Oct 2012, copies of the Air Force evaluations were 
forwarded to the applicant for review and comment within 
30 days.  As of this date, no response has been received by this 
office (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.  We took notice 
of the applicant's complete submission 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.  Therefore, in the absence of evidence to the 
contrary, 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 issue(s) 
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 7 Mar 2013, under the provisions of AFI 
36-2603:

     , Panel Chair
     , Member
     , Member

The following documentary evidence was considered in AFBCMR BC-
2012-02824:

    Exhibit A.  DD Form 149, dated 20 Jun 2012, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 15 Aug 2012.
    Exhibit D.  Letter, AFPC/DPSID, dated 5 Sep 2012.
    Exhibit E.  Letter, HQ AFPC/DPSOE, dated 1 Oct 2012.
    Exhibit F.  Letter, SAF/MRBR, dated 23 Oct 2012.





                            
                                   Panel Chair