RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2013-03699

					COUNSEL:

		HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

1. His Article 15, under the Uniformed Code of Military Justice 
(UCMJ), be removed from his records.

2. He be reinstated into the Air Force.

3. Any adverse information regarding his Article 15 be removed 
from his Unfavorable Information File (UIF), Evaluation 
Performance Reports (EPRs), and Control Roster.

4. His line number to technical sergeant (TSgt) be reinstated.

5. He be considered for other forms of relief in law and equity 
as may be applicable due to his 9 years of service and multiple 
deployments while serving in the Air Force.


APPLICANT CONTENDS THAT:

In an 11-page brief, the applicant’s counsel makes the following 
key contentions:

His non-judicial punishment did not comply with the legal and 
evidentiary requirements of the Manual for Court-Martial and the 
Air Force Instructions.  Justice and equity call for him to 
continue his service based on the unique circumstances of this 
case.  Title 10, Section 1552, is remedial in purpose and should 
be liberally construed.  Counsel refers to Oleson v United 
States, 172 Ct CI 9 (1965).

On 1 May 13, he was ‘indecently’ assaulted while returning to 
Osan Air Base.  He was returning to the base after consuming 
alcohol at the Songtan Entertainment District (“SED”).  Two 
females began assaulting him in an indecent manner by trying to 
take his wallet, including his military ID while pulling on his 
clothes and belt.  

On 2 May 13, two female Air Force non-commissioned officers 
(NCO) were interviewed regarding what they observed at the time 
in question.  The NCOs offered to assist him back to his living 
quarters, he ran and fell, his pants fell down, and he tried to 
pull them up.  The NCO statements were not provided to him and 
his commander.  The applicant did not know that the statements 
existed until 3 Jun 13, almost two weeks after his imposing 
commander had administered the Article 15.  

On 8 May 13, he made a restricted reporting of sexual assault 
and was counseled by the Sexual Assault Response Coordinator.  
He also met with the Military Life Family Consultant.  

On 14 May 13, he was notified by his commander of his intent to 
impose non-judicial punishment under Article 15, UMCJ, for 
intentionally exposing himself at the SED on or about 1 May 13, 
which was a violation under Articles 120 (indecent exposure) and 
134 (drunk and disorderly conduct).  

On 16 May 13, through counsel, he responded to the Article 15 by 
stating that while he took responsibility for placing himself in 
the situation where he essentially became a target of 
opportunity, he was assaulted by two attackers.  His belt buckle 
was broken and his pants fell down because of the assault.  As a 
victim, it was very difficult for him to address what happened; 
therefore, he invoked his victim rights and to maintain privacy.  

On 20 May 13, he enrolled in the mandatory Alcohol and Drug 
Abuse Prevention & Treatment (ADAPT).

On 21 May 13, he was found guilty of violating Articles 120 and 
134.  He was reprimanded for intentionally exposing his 
genitals.  He was reduced to the grade of senior airman, 
suspended through 20 Nov 13, after which time it would be 
remitted, unless sooner vacated, and ordered to pay forfeitures 
of $1,2011.00 for two months.  In addition, he was restricted to 
Osan Air Base for 60 days and reprimanded for ‘… foolish 
decision to intentionally expose [his] genitals….’  The two 
statements were not provided to him, his commander, or his 
counsel, which contradicted the finding of guilty of intentional 
exposure.  

One witness statement stated, “Once we got around corner Member 
fell flat on his face on the corner of road.  He proceeded to 
get up and his pants fell down and was naked…”  The other 
witness stated, “Sherri and I took off after him when he turned 
the corner he was face down, and his bare butt was in the air.  
We got him up, his pants up (he pulled them) and he took off 
running again….”  The two statements directly contradict the 
allegation of intentional exposure.  Further, the police report 
did not indicate any intentional exposure.  

On 28 May 13, he appealed the Article 15 by submitting another 
statement revealing that he was indecently assaulted by two 
females while approaching the military base and that he made a 
sexual assault report.

On 3 Jun 13, an email communication announced that since there 
was a report of sexual assault, an additional investigation 
was conducted and new evidence was discovered.  The new 
evidence pertained to the two statements made by two female 
NCOs back on 2 May 2013. 

On 13 June 2013, the Air Force declared Songtan 
Entertainment District off-limits for 18 hours a day to all 
airmen.  The installation commander, as reported by Stars 
and Stripes, determined that "This action is necessary to 
ensure the safety and welfare of military and civilian 
personnel and family members, and to avert incidents and 
provocations detrimental to the alliance between the United 
States and Republic of Korea." 

On 17 June 2013, the applicant was notified that he was 
placed on the Date of Separation (DOS) Rollback list.  The 
deadline for placing Airmen on the list was 21 June 2013.

On 18 June 2013, his commander denied his reenlistment.  On 27 
June 2013, he appealed his denial of re-enlistment, which 
highlighted the evidentiary problems with the Article 15.  In 
this respect, AF Form 418 states that the applicant was drunk 
and disorderly; however, the evidence supporting this 
conclusion was based on the allegation of the intentional 
exposure.  He has shown that two individuals indecently 
assaulted him, which in turn caused his belt to malfunction 
and his pants to fall down.  Two witnesses observed that when 
his pants fell down, he pull them up.

On 25 July 2013, pursuant to AFI 51-202, he requested to 
invalidate the Article 15 due to procedural and evidentiary 
errors.  The Article 15 does not meet the legal requirements 
of the Manual for Courts-Martial and AFI 51-202.  Manual for 
Courts-Martial, 2012 edition, Part V states that: "Any 
relevant matter may be considered, after compliance with 
paragraphs 4c(1){C) and (0) of this Part' in deciding a 
punishment under Article 15. Military Rule of Evidence 401 
states that "'relevant evidence' is evidence having any 
tendency to make the existence of any fact that is of 
consequence to the determination of the action more probable 
or less probable than it would be without the evidence."  As 
of the date of this petition, no response has been received.  

Additionally, paragraph 4c(1)(C) states, that each Service 
member requesting a hearing has a right to: Be informed 
orally or in writing of the information against the service 
member and relating to the offenses alleged; Paragraph 
4c(1)(D) states: Be allowed to examine documents or physical 
objects against the member which the non-judicial punishment 
authority has examined in connection with the case and on 
which the non-judicial punishment authority intends to rely in 
deciding whether and how much non-judicial punishment to 
impose.”  

He was not afforded meaningful right to counsel because he was 
not provided all evidence required to respond to the Article 
15.  The right to counsel does not mean much if counsel cannot 
examine all relevant documentation.  In fact, after the 
statements were presented to the appellate authority, he found 
no violation of Article 120.  The adverse language regarding 
the intentional exposure in the reprimand was never removed 
even though it relates to the indecent exposure (Article 120) 
and being drunk and disorderly (Article 134).  When the 
applicant asked to remove this language, he was told that it 
was not going to be removed, which violates Part V of the 
Manual for Courts-Martial because the evidence does not 
support the charges.  The Article 15 proceedings should have 
been returned to the commander so he could make a fair 
decision after a thorough review.

AFI 51-202, paragraph 3.5, states that the applicant had the 
right to examine all statements and evidence upon which his 
commander intended to rely in arriving at a decision to impose 
punishment, unless the matters are privileged or restricted by 
law, regulation, or instruction.  His commander was never 
presented with the two statements by the two NCOs.  Since his 
commander was never presented with the additional evidence, he 
had no opportunity to decide if he was going to consider the 
two statements.  Any commander would normally consider such 
statements during Article 15 proceedings because they were 
relevant and clearly showed that any exposure was due to the 
pants falling down which in turn was caused by the assault.  
Commanders who made critical decisions on non-judicial 
punishment must have all evidence to make the right and fair 
decision.

This case offers no exceptions of privilege or legal 
prohibitions where the evidence would not have to be turned 
over to him.  Therefore, the Article 15 violates AFI 51-202.  
This is a substantial error because the applicant was provided 
with incomplete evidence, his commander could not make a fair 
and thorough decision on the appropriate punishment, and his 
right to counsel was denied because his counsel could not 
advise him based on all the evidence that should have been 
considered by the commander.

He did not receive due process under the DOS Rollback.  In 
this respect, the Air Force used the wrong form to process 
his separation.  The Fiscal Year 2013 (FY13) Enlisted DOS 
Rollback (Phase II) Program states, "(NOTE: Ensure the 
current version dated 10 Jul 11 of the AF Form 418 is used)" 
He received AF Form 418 on 20 Jul 11 [sic].  The FY13 
Enlisted DOS Rollback (Phase II) Program is dated 7 June 
2013.  On its face, the form is incorrect.  It is possible 
that someone who prepared the FY13 Enlisted DOS Rollback 
(Phase II) Program attachment had a typo.  However, he should 
not be separated by using an incorrect form.  The cutoff 
period for DOS Rollback was 21 June 2013.  Since the chain of 
command failed to meet this deadline because it did not 
follow proper rules and procedures, he must be allowed to 
continue his service.

The applicant did not receive the supporting documentation for 
AF Form 418.  FY13 Enlisted DOS Rollback (Phase II) Program 
states in paragraph 2.7.1.5 that each Airman facing Rollback 
will be provided with a copy of the AF Form 418 and supporting 
documentation.  If the supporting documentation is based on 
the improper Article 15, including language indicating that he 
intentionally exposed himself, then this results in incorrect 
military records and it is just and proper to correct it.

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


STATEMENT OF FACTS:

On 21 May 13, the applicant’s commander rendered him an Article 
15 for violating Articles 120 and 134 of the UCMJ.  
Specifically, on or about 1 May 13, he was drunk and disorderly 
which conduct was of a nature to bring discredit upon the armed 
forces for which he received a reduction in grade to the grade 
of senior airman, suspended thorough 20 Nov 13, after which time 
it was remitted without further action, forfeited $1,201.00 pay 
per month for two months, and was restricted to Osan Air Base 
for 60 days.  

On 6 Jun 13, his commander reversed his decision on violating 
Article 120 (indecent exposure charge) and removed this charge 
from the Article 15.  

On 20 Sep 13, the applicant was furnished an honorable 
discharge, and was credited with 10 years and 5 days of active 
service.

The remaining relevant facts pertaining to this application are 
contained in the memorandum prepared by the Air Force office of 
primary responsibility, which is attached at Exhibit C, D, E, F, 
and G.


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  Please note that the applicant 
makes several requests regarding his military service which 
are not military justice matters; therefore, JAJM is only 
providing analysis and recommendations on the Article 15 
process.  

The applicant's squadron commander offered the applicant 
nonjudicial punishment under Article 15 for alleged drunk and 
disorderly conduct on or about 1 May 2013, in violation of 
Article 134, UCMJ, and indecent exposure, in violation of 
Article 120c, UCMJ.  After consulting with counsel, the 
applicant waived his right to court-martial, accepted 
nonjudicial punishment proceedings, and submitted a written 
presentation.  After considering the available evidence and the 
applicant's written presentation, the squadron commander found 
that the applicant committed the charged offenses.  

On 3 June 2013, the Chief of Adverse Actions at Osan AB wrote 
to the applicant's counsel explaining that allegations the 
applicant had been sexually assaulted prompted further 
investigation, which produced two relevant witness statements.  
The additional evidence was provided to defense counsel.  On 
6 June 2013, after reviewing these additional statements, the 
squadron commander reversed his decision on the indecent 
exposure charge, but still found the applicant guilty of being 
drunk and disorderly.  

In this case, the applicant was accused of pulling down his 
pants in public intentionally exposing his genitals and drunk 
and disorderly conduct.  Two individuals provided statements 
that supported the applicant's contention that he did not 
intentionally expose himself.  These statements were not 
provided to the squadron commander, the applicant, or the 
applicant's counsel at the time the applicant accepted 
Article 15 proceedings or when the squadron commander made his 
initial decision.  However, these statements were provided to 
all parties at the time of the applicant's appeal.  The group 
commander, the Article 15 appellate authority, after considering 
all the evidence denied the applicant's appeal.  Both the 
squadron commander and group commander had the best opportunity 
to evaluate the evidence for this action.  With that 
perspective, these commanders exercised their discretion that 
the applicant granted when the applicant accepted the 
Article 15 and found nonjudicial punishment appropriate.  

The legal review process showed that neither the squadron 
commander nor group commander acted arbitrarily or 
capriciously in making the nonjudicial punishment decisions.  
The applicant does not make a compelling argument that the 
Board should overturn the commander's nonjudicial punishment 
decision based on injustice.  

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

AFPC/DPSIM recommends denial.  On 21 May 13, the commander 
imposed nonjudicial punishment and the applicant acknowledged 
receipt.  IAW AFI 51-202, Nonjudicial Punishment, following 
full and fair consideration of the evidence, including any 
matters presented by the member, the commander indicates the 
member committed one or more of the offenses alleged and 
impose punishment as listed in Item 14 of the AF Form 3070A, 
Record of Nonjudicial Punishment Proceedings.  The commander 
lines out and initials any offense(s) for which NJP is not 
appropriate or which the member did not commit.  If the 
member committed one or more lesser included offenses, the 
commander consults with the Staff Judge Advocate before 
changing an alleged offense to a lesser included offense.  
DPSIM cannot speak to whether or not the commander's actions 
were just or not; at most, they can only discuss if proper 
procedures were followed in the administration of the action. 
After careful review, they determined the evidence presents 
only minor discrepancies that have no bearing on the 
administrative action itself.

The complete AFPC/DPSIM evaluation is at Exhibit D.

AFPC/DPSID does not provide a recommendation.  The Evaluation 
Procedures and Appeals office reviewed the applicant's request 
and determined that there is no action required by their 
office.  In this respect, the applicant's 2013 Enlisted 
Performance Report (EPR) pertaining to the mention of the 
Article 15 was never processed nor made a matter of record; 
therefore, there is no report to contend.  The applicant 
separated on 20 Sep 13; since this would have been the 
applicant's last report on active duty, it is probable that the 
report was rendered optional by the rating officials.  IAW AFI 
36- 2406, paragraph 3.4.8 states:  When the criteria under 
retirement or separation are met, an annual evaluation becomes 
optional.  Paragraph 3.4.10. states that personnel with an 
approved separation date, provided the following criteria are 
met:  The enlisted member's approved separation is not a result 
of discharge action under AFI 36-3208, paragraph 6.4, and the 
Date of Separation (DOS) is within one year of the projected 
annual close-out date, the separation was approved prior to the 
projected annual close-out date, and the ratee is not being 
released from active duty to the Reserves (AD or non-AD) or 
another service, then no evaluation is required.

The complete DPSID evaluation is at Exhibit E.

AFPC/DPSOE does not provide a recommendation regarding the 
applicant’s request to have his line number to technical 
sergeant reinstated.  After thoroughly reviewing the 
applicant's weighted airman promotion system (WAPS) record 
reflects that he has never been selected for promotion to 
TSgt.  Based on his date of rank (DOR) to SSgt, the applicant 
was considered and non-selected twice for promotion to TSgt 
prior to his discharge on 20 Sep 13.  The first time the 
applicant was considered for promotion to TSgt was cycle 12E6, 
his total score was 310.78 and the score required for 
selection in his AFSC was 312.33.  The second time he was 
considered for promotion to TSgt was cycle 13E6, his total 
score was 333.53 and the score required for selection in his 
AFSC was 335.43.  

The complete DPSOE evaluation is at Exhibit F. 

AFPC/DPSOR recommends denying the applicant’s request to be 
reinstated into the Air Force.  The applicant was separated 
under the FY13 Force Management Program with an RE code of 2X, 
first-term, second term or career airman was considered but not 
selected for reenlistment under the Selective Reenlistment 
Program (SRP).  Based upon the applicant's denial of 
reenlistment, he was separated with a Separation Code of 
"LGH", Non-retention on active duty, which was properly 
reflected on his DD Form 214.  Based on the commander's non-
recommendation for retention, the applicant was released from 
active duty and given an honorable discharge characterization 
of service.  This characterization is correct as indicated on 
the applicant's DD Form 214.

The complete DPSOR evaluation is at Exhibit G. 


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a 3-page rebuttal, the applicant’s counsel reiterates his 
original contentions and adds the following comments:

An Article 15 is corrective in nature; its purpose is to empower 
commanders with prompt means of promoting good behavior changes 
and is imposed for minor offenses.  “Whether an offense is minor 
depends on several factors: the nature of the offense and the 
circumstances surrounding its commission; the offender’s age, 
rank, duty assignment, record and experience; and the maximum 
sentence imposable for the offense if tried by general court 
martial.” MCM, Part V, para 1e.

This is unlike any other case, where an airmen is drunk and yells 
on base.  This is a case of a victim of an indent [sic] assault, 
who runs at night and falls because the assailants removed his 
belt from his pants; he continues in an effort of escaping.

The commander who recognized that there was no violation of an 
Article 120, realized that the accidental exposure was the 
result of the assault.  However, running and tripping on base 
following the assault because of the falling pants is also the 
result of the assault.  Thus, in the interest of fairness and 
justice, this victim should not be victimized again with another 
punishment.  Prior to the assault, the applicant was walking 
without any issues by himself to the base.  After the assault, 
his clothes were in disarray, his belt removed, he felt pursued, 
and continued to run and fall in the middle of the night. The 
unique facts of this case, coupled with his reporting, and the 
commander reversing the Article 120 charge, warrants granting the 
requested relief.

Article 134 has the following elements:  The accused was drunk, 
disorderly, or drunk and disorderly on board ship or in some 
other place; that, under the circumstances, the conduct of the 
accused was to the prejudice of good order and discipline in the 
armed forces or was of a nature to bring discredit in the armed 
forces.

In addition, the burden of proving the Article 134 violation is 
on the Government.  Here, the investigation failed to prove that 
the conduct in question was ‘service discrediting.’ This is 
because reactions of victims of an assault are not service 
discrediting.  How can running, falling, and running again be 
discrediting the service when we know that the victim believes 
that he is pursued by the attackers on a military base 
immediately following the assault off base at night.

The applicant’s rebuttal is at Exhibit I.


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 regarding the 
applicant’s requests to have his Article 15 removed from his 
records, to be reinstated into the Air Force, to remove adverse 
information from his official personnel documents, and to 
reinstate his line number for promotion to technical sergeant.  
We took notice of the arguments raised by the applicant’s 
counsel; however, after a thorough review of the complete 
evidence of record and the applicant’s submission, 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 the applicant has not been the victim of 
error or injustice.  While we acknowledge there appear to have 
been errors made in the administration of the article 15, we are 
satisfied they were harmless error that did not deprive the 
applicant of fair and equitable due process.  As such we find no 
basis to substitute our judgment for that of the commander and 
appeal authority that were in the best position to determine the 
weight and relevance of the evidence considered.  In our view 
the evidence does not support that the commander and appeal 
authority’s actions were arbitrary and capricious.  In the 
absence of persuasive evidence to the contrary, we find no 
compelling basis upon which to recommend granting any of the 
relief sought in this application.

4.  The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.


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-2013-03699 in Executive Session on 18 Nov 14 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence for AFBCMR Docket Number BC-
2013-03699 was considered:

	Exhibit A.  DD Form 149, dated 26 Jul 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLOA/JAJM, dated 17 Sep 13.
	Exhibit D.  Letter, AFPC/DPSIM, dated 13 Dec 13.
	Exhibit E.  Letter, AFPC/DPSID, dated 8 Aug 14.
	Exhibit F.  letter, AFPC/DPSOE, dated, 22 Aug 14.
	Exhibit G.  Letter, AFPC/DPSOR, dated, 15 Sep 14.
Exhibit H.  Letter, SAF/MRBR, dated 19 Sep 14.
Exhibit I.  Letter, Applicant’s Counsel, dated 18 Oct 14.