RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03539
	
		COUNSEL:  

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

Her Letter of Reprimand (LOR), dated 29 January 2013, be declared void and removed from her record, and the Nonjudicial Punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), imposed 29 May 2013, be set aside.  

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APPLICANT CONTENDS THAT:

A Discharge Review Board (DRB), made up of officers, reviewed all the evidence and testimony on her case and determined she did not commit the offenses which were the basis for the LOR and NJP. 

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

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STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 17 Dec 97. 

On 6 May 13, the applicant’s commander notified her that he was recommending she be administratively discharged from the Air Force.  The reasons for this action were:

	a.  On or about 23 Feb 12, the applicant was informed she was scheduled to attend Basic Life Support training, for which she failed to appear.  On 5 Mar 12, she was scheduled to attend Team Strategies and Tools to Enhance Performance and Patient Safety (STEPPS) training and she showed up late.  For these incidents she received an LOC.

	b.  On or about 6 Apr 12, without authority, the applicant failed to go at the time prescribed to her appointed place of duty.  For this she received an LOR.  

	c.  On or about 29 Sep 12, without authority, the applicant failed to go at the time prescribed to her appointed place of duty.  For this she received an LOR.  

	d.  On or about 1 Dec 12, the applicant was observed drinking alcohol at a Holiday Party.  At her Alcohol and Drug Abuse Prevention Treatment (ADAPT) meeting, she acknowledged use of pain medication and the consumption of alcohol.  On 18 Dec 12, the applicant agreed to abstain from alcohol consumption.  On 1 Feb 13, she was involved in an alcohol related incident.  Based upon a demonstrated pattern of unacceptable behavior and unwillingness to comply with the treatment plan, she was recommended for failure and disenrollment from the Alcohol and Drug Abuse Prevention Treatment (ADAPT) Program.

	e.  On 1 Dec 12, the applicant disobeyed a lawful order not to drive herself home due to the concern she had too much to drink.  For this she received a Letter of Reprimand (LOR).

	f.  On or about 10 Dec 12, without authority, the applicant failed to go at the time prescribed to her appointed place of duty. For this she received a Record of Individual Counseling (RIC).

	g.  On or about 25 Jan 13, the applicant batch filled all pending prescriptions in suspense status.  Her negligence affected 14 of her team members who spent more than 40 total man-hours correcting her error.  For this she received a Letter of Counseling (LOC).

On 11 Apr 13, the applicant failed to meet minimum fitness standards.  For this she received an LOC.  

On 21 May 13, the applicant was accused of failure to go to her appointed place of duty (her separation physical), in violation of Article 86, UMCJ.  The applicant consulted with counsel, waived her right to a court-martial, and accepted an Article 15.  

On 29 May 13, the applicant’s commander, after considering the information the applicant submitted in response to the Article 15, found the applicant had committed the alleged offense.  The punishment for this violation was a reduction in grade to Senior Airman.  

On 3 Jun 13, the applicant’s next higher commander denied her appeal, after reviewing the information she submitted.  The case was reviewed and determined to be legally sufficient. 

On 6 Jun 13, the applicant’s squadron commander notified the applicant that the original discharge notification was amended to add the “failure to go” charge to the charges for which she was being discharged.  

On 28 Jun 13, an administrative Discharge Review Board (DRB) found the applicant did not “fail to go” as her commander had determined in the NJP action.  However, the DRB found the applicant had failed drug abuse treatment and committed other acts of misconduct, and recommended the applicant be discharged with a General discharge.   

On 8 Aug 13, the applicant was furnished an Under Honorable Conditions (General) discharge with a Narrative Reason for Separation of “Misconduct (Other),” and was credited with 15 years, 7 months, and 22 days of active service.   

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPRs), 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.  NJP is authorized by Article 15, UCMJ, and permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.  Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander.  That said, a commander considering an Article 15 case exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extend of punishment.  The Manual for Courts-Martial and  AFI 51-202, Nonjudicial Punishment, provide for certain relief from NJP, 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 right, 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 applicant is asking the BCMR to set aside her Article 15 for “failure to go.”  The ADB does not have the authority to nullify an earlier NJP which has been reviewed and deemed to be legally sufficient.  The commander at the time of the Article 15 had the best opportunity to evaluate the evidence in the case.  The ADB may not overturn the applicant’s commander’s determination that the applicant “failed to go to an appointed place of duty.”  The applicant would have us believe that the decision of the discharge Board, made in her favor, is the one that should be dispositive when, in fact, it is equally possible that the decision of the commander in the NJP case was the correct assessment in the applicant’s case.  Without any evidence to the contrary, we conclude the commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and the punishment decision is well within the limits of the commander’s authority and discretion.  

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

AFPC/DPSIM recommends denial indicating there is no evidence of an error or an injustice.  This office cannot speak to whether or not the commander’s actions were just; we can only discuss whether or not proper procedures were followed in the administration of these actions.  After careful review, the correct procedures were followed in administering both the LOR and the NJP.  

A complete copy of the AFPC/DPSIM 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 12 Mar 14 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).

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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.  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 Board acknowledges the Discharge Review Board (DRB) concluded that the applicant did not commit the offenses which were the basis for her Letter of Reprimand (LOR), dated 29 Jan 13, and non-judicial punishment (NJP), imposed on 29 May 13, we believe the applicant’s commander was in the best position to make a judgment on the applicant’s behavior and associated punishment, and after looking at all the information available at the time determined the applicant did commit the offenses for which she receive said LOR and NJP.  In addition, the next higher commander considered and denied the applicant’s appeal of the NJP.  The Board is unwilling to simply substitute the judgment of the DRB for the judgment of the responsible commanders, without clear indication from those commanders that the assigned punishments were not appropriate given the circumstances.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2013-03539 in Executive Session on 2 Sep 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 15 Sep 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLOA/JAJM, dated 10 Jan 14.
Exhibit D.  Letter, AFPC/DPSIM, dated 29 Jan 14. 
Exhibit E.  Letter, SAF/MRBR, dated 12 Mar 14.