RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-04697
			COUNSEL:  NONE
			HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15, Uniform Code 
of Military Justice (UCMJ), dated 25 September 2002 be set 
aside.

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APPLICANT CONTENDS THAT:

In 2005, the Air Force Discharge Review Board upgraded his 
character of service from general (under honorable conditions) 
to honorable.  However, the Article 15 he received in 2002 was 
reported to the FBI and has prevented him from being hired as a 
teacher in New Jersey.  The Article 15 is being viewed by State 
authorities as a criminal arrest and conviction rather than 
nonjudicial punishment.

In support of the applicant’s appeal, he provides a personal 
statement.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 15 December 
1999.

The applicant was notified by his commander of his intent to 
recommend that he be discharged from the Air Force under the 
provisions of AFPD 36-32 and AFI 36-3208.  The specific reasons 
are as follows:

	  a.  On or about 19 July 2001, the applicant failed to report 
to work at the designated time and stated that he had overslept.  
For this misconduct the applicant received a Letter of 
Counseling (LOC).




	  b.  On or about 28 November 2001, the applicant failed to 
report on time to his assigned duty location.  For this 
misconduct the applicant received an LOC.

	  c.  Between on or about 1 October 2001 and 28 February 2002, 
the applicant wrongfully possessed marijuana and on 31 July 
2002 he signed an official AF Form 1168, Statement of Suspect, 
which he knew to be false.  For this misconduct the applicant 
received an Article 15.

	  d.  On or about 17 October 2002, the applicant failed to 
report on time to his assigned duty location.  For this 
misconduct, the applicant received a Letter of Reprimand (LOR).

He was advised of his rights in this matter and elected to 
submit a statement on his own behalf.  In a legal review of the 
case file, the chief military justice found the case legally 
sufficient and recommended discharge.  The discharge authority 
concurred with the recommendation and directed a general 
discharge.  The applicant was discharged on 17 January 2003.  He 
served 3 years, 1 month and 3 days on active duty.

On 6 October 2005, the Air Force Discharge Review Board (AFDRB) 
considered and approved the applicant’s request that his general 
(under honorable conditions) discharge be upgraded to honorable, 
to change his narrative reason for separation from drug abuse to 
misconduct and his reentry code changed to 3K (Exhibit B).

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  AFLOA states the applicant does 
not allege an error in the processing of his nonjudicial 
punishment.  The applicant also does not allege any injustice, 
rather the applicant asks for his nonjudicial punishment to be 
taken off his record so he can become a teacher.  Currently this 
nonjudicial punishment is listed as a “Criminal Arrest and 
Conviction” on his FBI Criminal History report and this prevents 
him from being hired as a professional educator.  There is no 
evidence that the applicant has addressed this issue with HQ 
AFOSI.

The applicant does not make a compelling argument that the Board 
should overturn the commander’s original, nonjudicial punishment 
decision.  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 and the applicant elected not to appeal 
the punishment decision.  In addition, the applicant has not 
brought this complaint to HQ AFOSI and thus has not exhausted 
all of his available avenues to correct the record.  The 
applicant has not shown a clear error or injustice 

The JAJM complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 21 December 2012, a copy of the Air Force evaluation was 
forwarded to the applicant for review and response within 
30 days (Exhibit D).  As of this date, no response has been 
received by this office. 

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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 an error or injustice.  We took 
notice of the applicant’s complete submission in judging the 
merits of the case; however, we agree with the opinion and 
recommendation of the Chief, Military Justice Division and adopt 
their rationale as the basis for our conclusion that the 
nonjudicial punishment imposed on 25 September 2012 was proper 
and the applicant has not been the victim of an injustice.  
However, we encourage the applicant to contact HQ AFOSI at 
27130 Telegraph Road, RKB, Quantico, Virginia 22134 since it is 
this office within the Air Force that enters violations of the 
UCMJ into the database which feeds into the FBI Criminal History 
Report.  Therefore, in the absence of evidence to the contrary, 
we find no basis to recommend granting the relief sought in this 
application.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of an 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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2012-04697 in Executive Session on 23 July 2013, under 
the provisions of AFI 36-2603:


The following documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 4 October 2012, w/atch.
  Exhibit B.  Applicant’s Master Personnel Records.
  Exhibit C.  Letter, AFLOA/JAJM, dated 5 December 2012.
  Exhibit D.  Letter, AFBCMR, dated 21 December 2012.