RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-02798
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The Record of Nonjudicial Punishment (NJP), imposed on 16 Dec 
2011, pursuant to Article 15, Uniform Code of Military Justice 
(UCMJ), be set aside.

________________________________________________________________

APPLICANT CONTENDS THAT:

He received an Article 15 for wrongfully grabbing a civilian co-
worker around the neck.  The civilian was coerced into making a 
statement against her will.  She recanted her original statement 
and in Apr 2013, she provided a memorandum in support of setting 
aside the Article 15.

In support of his request, the applicant provides copies of his 
AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB 
thru TSgt); electronic communiqué, memorandums, character 
letters, AF IMT 1168, Statement of Suspect/Witness/Complainant 
and various other documents associated with his request.

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

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STATEMENT OF FACTS:

On 16 December 2011, the applicant was offered nonjudicial 
punishment under Article 15, UCMJ.  He was charged with one 
specification of assault consummated by a battery for grabbing a 
civilian around the neck with his arm, in violation of Article 
128, UCMJ.  The applicant consulted with defense counsel, 
accepted the Article 15, and waived his right to demand trial by 
court-martial.  He elected to make a personal appearance before 
his commander.

On 21 Dec 2011, the commander decided that the applicant 
committed the charged offense and imposed punishment consisting 
of a reduction to the grade of Airman First Class (A1C, E-3), 
forfeitures of $400.00 pay, and a reprimand.  The applicant did 
not appeal his commander's decision.  

On 22 Dec 2011, the Article 15 action was reviewed and 
determined to be legally sufficient.

On 7 May 2013, the applicant, through his Area Dense Counsel, 
submitted a request to his new commander to set aside his 
Article 15.  The request included a memorandum from the civilian 
who states the entire incident was blown out of proportion.  She 
did not support the Article 15 because she did not feel 
threatened by the applicant and she does not believe she was a 
victim of assault. 

On 13 May 2013 the commander did not support the set aside.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states that the applicant 
does not make a compelling argument that the Board should 
overturn the commander's original, nonjudicial punishment on 
the basis of injustice.  The commander at the time of the 
Article 15 had the best opportunity to evaluate the evidence 
for this action.  In addition, while the civilian now states 
that she did not feel as if she was a victim, there were other 
witnesses to the misconduct who intervened when the incident 
occurred.  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.  The legal review process showed that the 
commander did not act arbitrarily or capriciously in making 
this decision.

The Manual for Courts-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.  The 
power to set aside a punishment should ordinarily be exercised 
within four months of the imposition of the nonjudicial 
punishment.  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.

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

On 5 Aug 2013, a copy of the Air Force evaluation was forwarded 
to the applicant for review and comment within 30 days.  As of 
this date, no response has been received by this office (Exhibit 
D).

________________________________________________________________

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 opinion and the 
recommendation of the Air Force office of primary responsibility 
and adopt its rationale as the basis for our conclusion the 
applicant has failed to sustain his burden of proof of the 
existence 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 in 
Executive Session on 13 Mar 2013, under the provisions of AFI 36-
2603:

      , Panel Chair
      , Member
      , Member

?
The following documentary evidence was considered in AFBCMR BC-
2013-02798:

    Exhibit A.  DD Form 149, dated 6 Jun 2013, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 18 Jul 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Aug 2013.




                                   
                                   Panel Chair
FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974



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FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974


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