RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02620

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The nonjudicial punishment (NJP) under Article 15 imposed on 
20 Nov 12 be set aside and removed from his records.  

2.  His Reentry (RE) code of 2X (First-term, second-term or 
career airman considered but not selected for reenlistment under 
the Selective Re-enlistment Program (SRP)) be changed to allow 
him to reenlist. 

________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 punishment was too harsh because another 
individual made the same mistake and only received a Letter of 
Reprimand (LOR).  The Article 15 gave him a 4H coding which made 
him vulnerable for the Date of Separation (DOS) Rollback 
program.  As a result, he was selected for DOS rollback and 
discharged.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant’s military personnel records indicate he enlisted 
in the Regular Air Force on 15 Apr 08.

On 20 Nov 12, the applicant received an Article 15 for 
dereliction in the performance of his duties by failing to 
follow a Technical Order by signing off on a task before it was 
actually completed, in violation of Article 92 of the Uniform 
Code of Military Justice (UCMJ).  As a result, his punishment 
consisted of a suspended reduction to the grade of airman first 
class (E-3) for six months, forfeiture of $200 pay per month for 
two months, 15 days restriction to base, and a reprimand.

On 20 Nov 12, the applicant acknowledged receipt of the Article 
15 punishment and, on 21 Nov 12, elected to not to appeal the 
punishment or submit statements on his behalf.

On 26 Nov 12, the Article 15 was reviewed and determined to be 
legally sufficient.

On 25 Feb 13, the applicant’s supervisor non-recommended him for 
reenlistment and, on 4 Mar 13, the applicant’s commander non-
selected him for reenlistment.  In doing so, the commander 
indicated the applicant was eligible for the Fiscal Year 2013 
DOS Rollback Program as he was serving suspended punishment to 
an Article 15.

On 4 Mar 13, the applicant acknowledged receipt and on 7 Mar 13, 
elected to appeal the commander’s decision.

On 10 Apr 13, the applicant’s commander denied his appeal and on 
12 Apr 13, the applicant acknowledged receipt of the denial of 
his appeal case.

On 31 May 13, the applicant was furnished an honorable 
discharge, with a RE code of 2X, and was credited with 5 years, 
1 month, and 16 days of total active service.

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

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to set 
aside his NJP, indicating the applicant has not shown a clear 
error or injustice.  The applicant fails to make a compelling 
argument that the Board should overturn the commander’s original 
decision.  The commander’s decision is firmly based on the 
evidence of the case and the punishment was well within the 
limits of the commander’s authority and discretion.  Although 
the applicant contends an injustice in his receipt of 
nonjudicial punishment alleging that someone else only received 
a LOR for the same mistake, the legal review process showed the 
commander did not act arbitrarily or capriciously in making his 
decision.  The applicant’s leadership was well aware of the 
applicant’s record before and after the misconduct and made sure 
to take this, along with his family’s medical situation, into 
account before issuing the nonjudicial punishment, denying his 
reenlistment and approving his early separation through the DOS 
Rollback Program.

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

AFPC/DPSOA recommends denial, indicating the applicant has not 
provided any proof of an error or injustice related to his RE 
code.  The applicant was eligible for the DOS Rollback Program 
based on his Article 15 suspended punishment and entering his 
SRP window on 15 Jan 13.  His non-selection for re-enlistment 
was carried out in accordance with AFI 36-2606, Reenlistment in 
the USAF, which indicates that commanders have selective 
reenlistment or non-selection authority.  The applicant was 
discharged under the FY13 Air Force Shaping Rollback Program.  
The applicant was in his reenlistment window but was denied 
reenlistment, which required him to separate under the rollback 
guidance.

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

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues the facts in the AFLOA/JAJM Advisory are 
incorrect as it pertains to him not making a personal appearance 
before his commander.  He indicates that he did indeed make a 
personal appearance and his commander told him that at that 
time, he was unsure whether or not he would be imposing 
nonjudicial punishment on the applicant.  He was immediately 
excused from the office and was not given a chance to present 
evidence in his defense.  When he later requested an audience 
with the commander through the First Sergeant, he was told that 
the commander would not want to see him.  He was later informed 
that the commander had made his decision to impose punishment 
and was told by the Area Defense Counsel (ADC) to accept the 
Article 15 and not fight it because he was only receiving a 
suspended reduction in grade.  He was told that accepting the 
Article 15 and not fighting it would keep him in the Air Force 
and not affect his reenlistment.  He later found out that the 
reason the person who made the same mistake as he did only 
received an LOR was because that person’s mistake was sent 
through the proper channels of the chain of command unlike his 
that was sent directly to the commander.  After consulting the 
ADC, he left that issue alone in fear of losing his rank and 
reenlistment eligibility.  In February 2013, he was informed 
that his Article 15 made him eligible for the DOS Rollback 
Program.  The ADC told him that there was nothing more he could 
do unless he appealed the DOS Rollback, which later he learned 
that the format the ADC gave him to appeal was incorrect.  He 
later solicited the help of the Inspector General (IG) office 
and gained a better understanding of what he needed to submit in 
support of his appeal of the DOS Rollback (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 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 opinions and 
recommendations of the Air Force offices of primary 
responsibility (OPR) and adopt their rationale as the basis for 
our conclusion the applicant has not been the victim of an error 
of injustice.  While the applicant’s arguments are duly noted, 
in the absence of any evidence the applicant was denied rights 
to which he was entitled, that his nonjudicial punishment and 
subsequent denial or reenlistment represented an abuse of 
discretionary authority, or that he has been treated differently 
than others similarly situated, we are not convinced he is the 
victim of an error or injustice.  While we note that in response 
to the advisory opinions rendered in this matter, the applicant 
argues that he was denied a personal appearance by the commander 
during the nonjudicial punishment proceedings, the evidence of 
record clearly indicates the applicant waived his rights to a 
personal appearance before the commander.  We also note that in 
his rebuttal response, the applicant raised new requests for 
correction of his records that were not included in his original 
submission.  As such, these constitute new requests; as such, 
the applicant must submit a new application in order for these 
requests to be considered.  Therefore, in the absence of 
evidence to the contrary, we find no basis to recommend granting 
the relief.

________________________________________________________________

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-2013-02620 in Executive Session on 6 Mar 14, under the 
provisions of AFI 36-2603:

	                   , Panel Chair
	                   , Member
	                   , Member





The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-02620 was considered:

	Exhibit A.  DD Form 149, dated 22 May 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFLOA/JAJM, dated 9 Jun 13.
	Exhibit D.  Letter, AFPC/DPSOA, dated 4 Sep 13.
	Exhibit E.  Letter, SAF/MRBR, dated 18 Oct 13.
	Exhibit F.  Letter, Applicant, dated 1 Nov 13, w/atchs.




                                   
                                   Panel Chair
                                    
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