RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00684
			COUNSEL:  NONE
			HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Nonjudicial Punishment (NJP) action she received on 
13 Oct 11, under Article 15, Uniform Code of Military Justice 
(UCMJ) be removed from her record.

2.  The referral AF Form 910, Enlisted Performance Report (EPR) 
(AB thru TSgt), for the period 21 Sep 10 thru 20 Sep 12  be 
removed from her records.

3.  If items one and two are granted, her original Date of Rank 
(DOR) to Airman First Class (A1C) be restored with all pay and 
allowances.

________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 punishment she received was unjust based on a 
lack of supporting evidence.  It was inappropriately carried out 
and did not follow the proper protocol.

On 13 Oct 11, her commander found her guilty of failure to go 
even though she notified her supervisor of the unforeseen 
occurrence.

She was found guilty of falsifying an official statement during 
an interrogation that did not follow protocol, had witnesses 
removed, and did not completely uphold her rights under Article 
31 of the UCMJ.  Lastly, she was found guilty of cheating on an 
evaluation with no substantial evidence to support the claim.  

The applicant outlines her personal account of the events that 
transpired leading up to her Article 15 punishment and vacation 
action.

She was accused of cheating during her Geospatial Analyst (GA) 
evaluation.  Her failure to complete the task because of a 
processing error should not have been perceived as cheating, but 
as an area that she needed more practice.  The evidence should 
have pointed-out that she did not fully know how to perform the 
task.  Her evaluator’s allegation was not substantiated with any 
evidence to support cheating or punishment for dereliction of 
duty under Article 92 of the UCMJ.

Regarding the Article 107, UCJM violation (False Official 
Statement), the Article 15, dated 13 Oct 11, states that she 
made an official statement “My friend T. W. helped me start my 
car,” or words to the effect, which statement was totally false, 
and was then known to be so false.”  This is a false charge; the 
phrase “My friend T.W. helped me start my car” is not what was 
written on her AF Form 1168, Statement of 
Suspect/Witness/Complainant.  

During the investigation she was told that she was being 
investigated for cheating on her evaluation which is associated 
with Article 92.  However, in section three of the AF Form 1168, 
it does not list Article 92, as the suspected offense.  Article 
107, is listed as the advised and suspected offense.  This is 
not proper protocol, how can a member be suspected of falsifying 
an official statement before it is written.  She was never 
advised that Article 107 or Article 86 were charges against her.  
However, was found guilty of them when presented with her 
Article 15 documents from her commander.  Article 31 of the UCMJ 
states that no person subject to this chapter may interrogate, 
or request any statement from an accused or a person suspected 
of an offense without first informing him or her of the nature 
of the accusation.  Article 32, states that “the accused shall 
be advised of the charges against them during an investigation, 
both of these guidelines were not followed in her case.  When an 
individual waives his/her rights and agrees to talk, when 
possible obtain the waiver in writing using AF Form 1168, and 
have a witness present.”  In her case, she was not given that 
opportunity.

The AF Form 1168 did not list all the charges preferred against 
her and her Article 31 rights were violated which is reason to 
question the entire investigation.

There should have been a senior NCO present to oversee and 
ensure the proper procedures were followed.  Since these 
proceedings a new first sergeant has been placed in this 
position.  

In conclusion, she and others in the unit agree that based on 
her record, the circumstances surrounding the allegations, and 
the interrogation method used, the entire ordeal should have 
been handled better.  An Article 15 was not the right course of 
action.

In support of her request, the applicant provides a personal 
statement, copies of a memorandum for record, statements from 
her supervisors, character letters, documents pertaining to her 
NJP, and various other documents associated with her request.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in 
the grade of A1C.

The applicant was offered NJP, under Article 15, UCMJ.  She was 
charged with: 1) making a false official statement, to wit: “My 
friend T. W. helped me star my car,” which statement was totally 
false and was then known to be so false, in violation of Article 
107, UCMJ; 2) being derelict in the performance of her duties as 
she willfully failed to refrain from cheating on her Advanced 
Geospatial Intelligence portion of her evaluation, in violation 
of Article 92, UCMJ; and 3) showing up late for work, in 
violation of Article 86, UCMJ.  The applicant was afforded the 
opportunity to consult with defense counsel, accepted the 
Article 15 and waived her right to demand trial by court-
martial.  She elected to present written matters and elected to 
make a personal appearance before her commander.  On 13 Oct 11, 
the commander decided that the applicant had committed the 
charged offenses and imposed punishment consisting of a 
reduction to the grade of airman (E-2), suspended for six 
months, forfeiture of $822 pay per month for two months, 
suspended for six months, 30 days extra duty, and a reprimand.  
The applicant was informed of the punishment as well as her 
right to appeal.  The applicant did not appeal her commander’s 
decision.  The Article 15 action was reviewed and determined to 
be legally sufficient.

On 1 Dec 11, the applicant’s commander provided the applicant 
notice of vacation proceedings and charged her with showing up 
late to work, in violation of Article 86, UCMJ.  The applicant 
consulted her Area Defense Counsel, provided a written response 
and requested a personal appearance before her commander.  On 
6 Dec 11, the commander decided the applicant had committed the 
charged offense and imposed punishment consisting of a reduction 
to the grade of airman (E-2).  The vacation was reviewed and 
determined to be legally sufficient.

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force at Exhibits C, D and E. 

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to 
remove the Article 15 from her records.  The applicant has not 
shown a clear error or injustice.  

A commander considering a case for disposition under Article 
15 exercises largely unfettered discretion in evaluating the 
case, both as to whether punishment is warranted and, if so, the 
nature and extent of punishment.  The exercise of that 
discretion should generally not be reversed or otherwise changed 
on appeal or by the Board absent good cause.  A 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 applicant makes several allegations about the unjust 
processing of her NJP.  First, she alleges there was a lack of 
creditable evidence and documentation to support: 1) a history 
of tardiness leading to the offense of being late to work, in 
violation of Article 86; and 2) cheating on her evaluation.  
Second, she alleges that due to a failure of protocol and 
violation of her Article 31, UCMJ rights, it is unjust to issue 
NJP for a false official statement.  The applicant alleges that 
during her interview regarding why she was late to work and 
cheating on her evaluation, her rights were violated.  The 
applicant was read her rights and what she was suspected of: 
cheating on her evaluation and being late to work.  The 
applicant waived her right to remain silent and answered 
questions on those two allegations.  Part of the questioning was 
done verbally and part was done in written question answer 
format.  Besides TSgt P., the person asking the questions, and 
herself, there were no other individuals in the room.

As to the lack of credible supporting evidence, by accepting the 
NJP, the burden of proof standard for proving a person is guilty 
of an offense is much lower than the court-martial standard of 
proof beyond a reasonable doubt.  There is no specific standard 
that applies to NJP; however, a commander must feel there is 
enough evidence to prove more likely than not the applicant 
committed the offenses she was charged with.  In this case, the 
commander looked at all the evidence, to include submissions 
from the applicant, and found she was guilty of the offenses she 
was charged with.

As to the violation of Article 31, UCMJ rights allegation, there 
was no violation.  The applicant was read her rights and she 
chose to waive her right to remain silent and answered 
questions.  The applicant knowingly made this decision and her 
rights were not violated.  The allegations about no witnesses in 
the room or how the questioning went are not violations of 
Article 31, UCMJ as there is no legal requirement to have a 
witness present and no legal requirement as to how the question 
and answering take place.  There are suggested ways on how to 
conduct an investigation, but it is only guidance.  The form on 
which the applicant acknowledged and waived her Article 31 
rights only indicates she was suspected of a false official 
statement; however, TSgt P. provided a memorandum for record 
stating she did orally tell the applicant of each allegation and 
there is additional evidence supporting the applicant’s guilt 
besides her statement.  Thus even if there was a violation, 
there is additional evidence that supports the applicant’s 
guilt.

The applicant does not make a compelling argument that the Board 
should overturn the commander’s original NJP decision on the 
basis of injustice.  The commander’s ultimate decision on the 
Article 15 action is firmly based on the evidence of the case 
and the punishment was well within the limits of the commander’s 
authority and discretion.

The complete JAJM evaluation is at Exhibit C. 

AFPC/DPSID recommends denial of the applicant’s request to 
remove her referral EPR from her records.  DPSID states based on 
the lack of corroborating evidence provided by the applicant, 
and the presumed sufficiency pertaining to the issuance of the 
Article 15, they recommend the report not be removed from her 
record.  

The applicant did not file an appeal through the Evaluation 
Reports Appeals Board (ERAB) under the provisions of AFI 36-
2401, Correcting Officer and Enlisted Evaluation Reports.

In accordance with AFI 36-2406, Officer and Enlisted Evaluation 
Systems, Paragraph 1.3.1., evaluators are strongly encouraged to 
comment in performance reports on misconduct that reflects a 
disregard of the law, whether civil law or the UCMJ, or when 
adverse actions such as Article 15’s, Letters of Reprimand, 
Admonishment, Counseling, or placement on the Control Roster 
have been taken.  

The applicant did provide memorandums of support from 
individuals outside the rating chain of the contested EPR.  
While those individuals are entitled to their opinion of the 
applicant’s duty performance and the events occurring around the 
time of the punishment and when the referral EPR was rendered, 
they were not in a better position to evaluate her duty 
performance than those who were specifically assigned that 
responsibility.  Therefore, their opinions are not germane to 
her appeal.  Furthermore, statements from the additional rater 
and commander/reviewer during the contested period are 
conspicuously absent.  In order to successfully challenge the 
validity of an evaluation report, it is important to hear from 
all the evaluators—not necessarily for support, but at least for 
clarification/explanation.  The applicant has not provided such 
needed documentation for full substantiation of her claims.  
Without the benefits of these statements, DPSID must conclude 
that the EPR is accurate as written.

An evaluation report is considered to represent the rating 
chain’s best judgment at the time it is rendered.  Once a report 
is accepted for file, only strong evidence to the contrary 
warrants correction or removal from an individual’s record.  The 
burden of proof is on the applicant.  In the absence of 
information from the evaluators of the contested report, 
official substantiation of an error or injustice from the 
Inspector General (IG) or Military Equal Opportunity is 
appropriate, but not provided in this case.  The applicant has 
not substantiated the contested report was not rendered in good 
faith by all evaluators based on knowledge available at the 
time.

The complete DPSID evaluation is at Exhibit D.

AFPC/DPSOE recommends denial of the applicant’s request to 
reinstate her rank of A1C with her original DOR.  DPSOE states 
that based on the recommendation of JAJM to deny setting aside 
the applicant’s Article 15, and DPSID’s that her EPR is accurate 
as written and should not be voided or removed, they do not 
recommend relief.

DPSOE states that a review of the applicant’s Military Personnel 
Data System (MilPDS) file reflects that she was erroneously 
promoted to the rank of A1C on 13 Aug 12.  Based on the 20 May 
12 referral report, she was ineligible for promotion in 
accordance with AFI 36-2502, Airman Promotion/Demotion Programs, 
Table 1.1, Rule 22.  The Enlisted Promotions section at AFPC has 
contacted the applicant’s servicing Military Personnel Section 
(MPS) regarding this erroneous promotion and directed they 
correct it, as well as, notify the applicant and her commander 
of the error.  

The complete DPSOE evaluation is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 6 Sep 13, copies of the Air Force evaluations were forwarded 
to the applicant for review and comment within 30 days (Exhibit 
F).  As of this date, this office has received no response.

________________________________________________________________

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 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 and adopt their rationale as the basis for our 
conclusion that the applicant has not been the victim 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 Docket Number    
BC-2013-00684 in Executive Session on 5 Dec 13, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Jan 13, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 21 Mar 13.
    Exhibit D.  Letter, AFPC/DPSID, dated 21 Jun 13.
    Exhibit E.  Letter, AFPC/DPSOE, dated 10 Jul 13.
    Exhibit F.  Letter, SAF/MRBR, dated 6 Sep 13.




				Panel Chair