RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-04852

		COUNSEL:  NONE

		HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His non-judicial punishment, under Article 15 of the Uniform 
Code of Military Justice (UCMJ), be removed.

2.  His Re-entry (RE) code “4H” - “Undergoing Punishment 
Pursuant to Article 15, UCMJ,” be changed to “1J” - “Eligible to 
Reenlist- Elected Separation or Discharge.”  

3.  He receive a corrected DD Form 214, Certificate of Release 
or Discharge from Active Duty.  

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APPLICANT CONTENDS THAT:

He has served the time required for the Article 15.  He is a 
certified Florida State Law Enforcement Officer.  It has been 
difficult seeking employment based on the isolated incident in 
2005.  

In support of his request, the applicant provides a copy of DD 
Form 214. 

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 
13 August 2002.  He was discharged on 31 August 2006 with an 
honorable characterization of service and a narrative reason for 
separation of miscellaneous/general reasons.  He was credited 
with 4 years and 16 days of active duty service.  

According to copies of documents extracted from the Automated 
Records Management System (ARMS), by way of an AF Form 3070, 
Record of Nonjudicial Punishment Proceedings, the applicant’s 
commander offered him nonjudicial punishment (NJP) proceedings 
under Article 15 UCMJ, on 10 April 2006, for one specification 
of a violation of Article 134, Adultery.  The applicant 
acknowledged the NJP on 13 April 2006 and waived his right to 
trial by court-martial.  However, he elected to consult counsel, 
submit a written statement on his behalf, and requested a 
personal appearance before his commander.  On 18 April 2006, the 
commander determined the applicant did commit the offense and 
imposed the Article 15.  The applicant’s imposed punishment was 
suspension of a reduction to a grade below Airman First Class, 
until 16 October 2006, after which time it would be remitted 
without further action, unless sooner vacated, 45 days of 
restriction to the local Air Force Base and 45 days of extra 
duty.  The applicant did not appeal the commander’s decision.  
The Article 15 proceedings were reviewed and determined to be 
legally sufficient.  

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states that the applicant 
has not demonstrated a clear error or injustice and 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 this case and the punishment decision 
was well with the limits of the commander's authority and 
discretion.

2.  The Manual for Court Martial (MCM) and AFI 51-202, 
Nonjudicial Punishment, 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.

3.  The applicant does not allege error in how the Article 15 
was processed.  A review of the available documentation for the 
Article 15 indicates that the applicant's rights were observed 
throughout the entire process.  At all times, he was represented 
by a fully qualified appointed military defense counsel.  The 
commander at the time of this nonjudicial punishment action, had 
the best opportunity to evaluate the evidence in the applicant's 
case.  With that perspective, the commander exercised the 
discretion that the applicant granted him when the applicant 
accepted the Article 15 and found the nonjudicial punishment 
appropriate in the applicant's case.  The legal review processes 
showed that the commander did not act arbitrarily or 
capriciously in making this determination.  A review of the AF 
Form 3070 indicates that the applicant's rights were observed 
throughout the process of his nonjudicial punishment action.

The complete AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSOA recommends denial.  DPSOA states the applicant’s “4H” 
RE code would have been changed to reflect “4E” - “Grade is 
airman first class or below and airman completed 31 or more 
months (55 months for a 6-year enlistees), if a first-term 
airman; or, grade is airman first class or below and the airman 
is a second-term or career airman” based on his grade and time 
in service once the Article 15 suspended punishment expired on 
16 Oct 2006.  However, the Air Force does not recognize any time 
served after a member separates.  The member would keep the same 
RE code in effect at the time of discharge.

The complete DPSOA evaluation is at Exhibit D. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 21 December 2012 for review and comment within 30 
days (Exhibit E).  To date, this office has not received a 
response.  

________________________________________________________________

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 that 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.  

________________________________________________________________




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 
BC-2012-04852 in Executive Session on 1 August 2013, under the 
provisions of AFI 36-2603:

			, Panel Chair
      , Member
			, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 October 2012, w/atch.
    Exhibit B.  Applicant’s Master Personnel Records
    Exhibit C.  Letter, AFLOA/JAJM, dated 5 December 2012.
    Exhibit D.  Letter, AFPC/DPSOA, dated 12 December 2012.
    Exhibit E.  Letter, SAF/MRBR, dated 21 December 2012. 




                                   
                                   Panel Chair