RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02987

	 	COUNSEL:  NONE

		HEARING DESIRED:  NO 
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APPLICANT REQUESTS THAT:

1.  His Article 15 received on 22 Apr 13 be set aside.  

2.  He be reinstated to the rank/grade of senior airman (E-4).  
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APPLICANT CONTENDS THAT:

His due process rights were violated by his commander when two statements were withheld from him and his counsel in defense of the allegations against him, which was in violation of Air Force Instruction 51-202, Nonjudicial Punishment (NJP).  Others similarly situated were given letters of counseling, letters of reprimand, or no punishment at all.  Only those who sought area defense counsel representation received retaliatory punishments.  In response he has filed several inspector general (IG) complaints in regards to the inconsistent punishments amongst members of his unit for various offenses, to include those involving his case.  The Chief of Military Justice advised the appellate authority that the most appropriate course of action would be to set aside the Article 15 action and issue him a letter of reprimand (LOR).  

The applicant’s complete submission, with attachments, is at Exhibit A.  
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STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of airman first class (E-3).  

On 11 Apr 13, the applicant was notified of his commander’s intent to impose NJP under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully appropriating a Kevlar vest and holster and for making a false official statement in violation of Articles 121 and 107, respectively, of the Uniform Code of Military Justice (UCMJ).  

On 16 Apr 13, after consulting with legal counsel, the applicant waived his right to trial by court-martial and elected to submit matters on his behalf.  The applicant also requested a personal appearance before the commander.  

On 22 Apr 13, the commander found the applicant committed the offenses alleged and imposed punishment of reduction to the grade of airman first class (E-3), forfeitures of $1,007.00 pay per month for two months, suspended through 21 October 2013, and a reprimand.  

On 29 Apr 13, the applicant, through counsel, appealed the punishment.  The basis of the appeal was that the commander relied upon additional evidence in making his decision that was not provided to the applicant or his counsel.

On 1 May 13, the wing legal office reviewed the action and, while it was found to be legally sufficient, the legal office recommended that the applicant’s appeal of the punishment be granted and the applicant’s demotion and fine be set aside in favor of a letter of reprimand (LOR).

On 2 May 13, the appellate authority denied his appeal and the action was filed in an unfavorable information file (UIF).  The record was reviewed and determined to be legally sufficient.  

On 17 May 13, the applicant contacted the Inspector General’s (IG) Office in response to the Article 15 appeal in which his counsel and the Chief of Military Justice, Judge Advocate (JA), recommended the chain of command set aside the Article 15 and replace it with a LOR.  The IG indicated that although the applicant was told there was a procedural mistake made with his case that would force his Article 15 to be removed, this was not the case.  While the JA did recommend the Article 15 be removed, the command decided not to follow the advice and kept the Article 15 in place.  Ultimately, the IG found the legal action taken against the applicant was carried out in accordance with the appropriate procedures and was legally sufficient.  

On 2 Aug 13, the applicant’s AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt), rendered for the period 28 Jun 12 thru 27 Jun 13, was referred to him due to the rating and commends relative to his Article 15.  

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.  
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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice.  The Manual for Courts-Martial (MCM) and AFI 51-202 provides for certain relief from NJP, specifically mitigation, remission, suspension, or set aside.  A commander exercises personal discretion in evaluating the case before him as to whether NJP is appropriate and, if so, as to the nature and amount of punishment.  While AFI 51-202, paragraph 3.5, provides that a member and his counsel have a right to examine all statements and other evidence upon which the commander has examined and intends to rely upon when arriving at a decision to impose punishment, it does not provide a right to all of the evidence discovered during the investigation of an allegation.  Therefore, the applicant’s procedural rights were not violated so long as the only evidence considered was that which was provided to the applicant and his defense counsel.  A review of the applicant’s Article 15 and supplementary actions indicate that he was afforded all procedural rights during each of the proceedings, all of which were found to be legally sufficient.  The applicant made the choice to accept NJP proceedings; he made the choice to avoid court-martial and accept his commander’s judgment in this matter.  The fact someone else may have reached a different result then he is not determinative.  The applicant contends he has filed IG complaints related to matters of his case, related cases and other offenses within his unit.  However, it may be appropriate to reconsider the applicant’s request if/when there is an IG report substantiating his retaliation claims.  

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

AFPC/DPSOE indicates no equity in the decision regarding the removal of the applicant’s Article 15, indicating AFLOA/JAJM has reviewed the case and found the Article 15 punishment legally sufficient, and recommended denial of the applicant’s request to have it set aside.  Should the board grant the applicant’s request to set-aside the Article 15, the applicant’s rank of senior airmen (E-4) will be effective 12 Apr 11.  However, the applicant received a referral EPR for the period 28 Jun 12 – 27 Jun 13.  Due to the referral EPR, in accordance with AFI 36-2502, the applicant will not be eligible for promotion consideration for staff sergeant (E-5) until he received a nonreferral report.  

A complete copy of the AFPC/DPSOE evaluation is at Exhibit D.  
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

It was his understanding of the Article 15 process that it was his choice to accept NJP in lieu of a court-martial because it would give his commander the opportunity to step in.  He reiterates his argument that the Chief of Military Justice supported his request to have the Article 15 set aside.  In addition, he was informed by his counsel and the judge advocate general (JAG) that he received an Article 15 for using integrity.  However, his integrity was not enough for his commander to make the right decision.  More importantly, his counsel made several requests to see all the statements and evidence relating to his case, but that did not happen.  Although, the commander was to only examine all the statements and other evidence upon which he would rely upon in arriving at a decision to impose punishment against him, he was in fact able to review all the statements and all the evidence that was considered against everyone involved in the investigation.  How would he prove that he only reviewed certain statements and or evidence in his case?  There is no true way to prove his commander did or did not look over missing statements when considering his punishment.  Nevertheless, he is considered to be trustworthy because he currently performing work that is required by a master sergeant (E-7)  in conducting background checks that are connected with Federal Bureau of Investigations (FBI) records.  Lastly, as of 17 Mar 14, his squadron commander has been relieved of duty, which undermines his credibility and leadership (Exhibit F).  
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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 timely filed.  

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  The applicant contends supporting statements were withheld in respect to his Article 15 action and there were inconsistent  punishments amongst members of his unit that were similarly situated and facing the same allegations.  After a thorough review of the evidence of record and the applicant’s complete submission, to include his rebuttal response, we believe it is in the interest of justice to recommend granting the requested relief.  While we note the comments of the Air Force offices of primary responsibility (OPR) indicating the applicant received the due process to which he was entitled, it is the opinion of the Board, that while we are not convinced that the applicant’s due process was violated, we believe  he  has provided evidence to support the circumstances surrounding the imposition of punishment amongst similarly situated members was in fact disparately different.  In support of this argument, we note the legal review of the applicant’s Article 15 appeal in which the recommendation of the staff judge advocate (SJA) to the group commander indicates that all other members who took equipment from the warehouse, but only used that equipment on duty, only received LORs.  Furthermore, the group commander was informed that if the applicant’s statement was accepted that he did not provide a false official statement, the most appropriate course of action would be to set aside the non-judicial punishment and issue him a LOR.  Therefore while we note the commander acted within his authority to deny the applicant’s appeal in the face of this recommendation, we believe the applicant has been treated differently than those similarly situated.  Additionally, we note the applicant’s EPR rendered for the period 28 Jun 12 thru 27 Jun 13 was referred due to the comments relative to the contested Article 15.  However, in our view the EPR does not accurately describe the basis for the action.  In this respect, we note that the Article 15 was imposed for one specification of a false official statement and two specifications of wrongful appropriation.  However, the EPR reflects the applicant received Article 15 punishment for failure to comply with the established standard operation procedures (SOP) in reporting criminal actions.  Therefore, given the affirmative recommendation of the SJA and the noted inconsistencies between the NJP and EPR in describing the basis for the action, we believe a preponderance of the evidence supports corrective action.  Accordingly, we recommend the applicant’s record be corrected as indicated below.  
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THE BOARD RECOMMENTS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

	a.  His non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, initiated on 11 April 2013 and imposed on 22 April 2013, be declared void and expunged from his records, and all rights, privileges, and property of which he may have been deprived be restored.  

	b.  The AF Form 910, Enlisted Performance Report (AB thru TSgt), rendered for the period 28 June 2012 thru 27 June 2013, be declared void and removed from his records.
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The following members of the Board considered AFBCMR Docket Number BC-2013-02987 in Executive Session on 8 Apr 13, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 18 Jun 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFLOA/JAJM, dated 9 Aug 13.  
	Exhibit D.  Letter, AFPC/DPSOE, dated 11 Sep 13.  
	Exhibit E.  Letter, SAF/MRBR, dated 31 Oct 13. 
	Exhibit F.  Letter, Applicant, dated, 8 Feb 14.  





                                   Panel Chair