RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2014-00467

		COUNSEL:  NONE INDICATED

		HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

Her non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) received on 2 December 2013 be set aside and the Unfavorable Information File (UIF) be removed from her record.  

Her AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt), rendered for the period 22 January 2013 thru 21 January 2014, be declared void and removed from her record.  



APPLICANT CONTENDS THAT:

She received NJP under Article 15 for making a false official statement.  However, she provided evidence that she was telling the truth and therefore the charges against her should have been dropped.  

Her EPR which indicates she received an Article 15 for making a false official statement should be removed from her records since the Article 15 is unwarranted.  

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



STATEMENT OF FACTS:

The applicant’s military personnel records indicate she enlisted in the Regular Air Force on 22 May 2007.  

On 14 November 2013, the applicant was notified of her commander’s intent to impose NJP under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go at the time prescribed to her appointed place of duty and for making a false official statement in violation of Articles 86 and 107, respectively, of the UCMJ. 

On 19 November 2013, after consulting with legal counsel, the applicant waived her right to trial by court-martial and elected to submit matters on her behalf.  She indicated that she did not make a false official statement and did not fail to go to her appointed place of duty.  However, she made an official statement via text message, which consisted of incomplete sentences, lumped into one big statement.  Her statements were made two hours apart and there was a lot more information within her text messages.  

On 2 December 2013, the commander found the applicant committed only the offense alleged under Article 107 and imposed punishment of reduction to the grade of senior airman (E-4), suspended through 1 June 2014, forfeitures of $250.00 pay per month for two months, and a reprimand.  

On 4 December 2013, the applicant’s counsel argued on her behalf that the she should not be found guilty under Article 107 because punishment was imposed based upon miscommunication.  In addition, the evidence fails to meet the threshold required by three out of the four necessary elements of the charge.  

On 9 December 2013, the applicant, through counsel, appealed the punishment.  The basis of the appeal was that she did not commit the offenses and requested the Article 15 be withdrawn.  

On 20 December 2013, the appellate authority denied her appeal and the action was filed in an UIF.  The record was reviewed and determined to be legally sufficient.  

On 10 February 2014, the applicant’s AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt), rendered for the period 22 January 2013 thru 21 January 2014, was referred to her due to the rating and comments relative to her Article 15.  

On 8 July 2014, the applicant was notified of her commander’s intent to impose NJP under Article 15 of the UCMJ for failure to go and for making a false official statement in violation of Article 86 and 107, respectively, of the UCMJ.  

On 17 July 2014, the commander found the applicant committed the offenses alleged and imposed punishment of reduction to the grade of senior airman (E-4) and a reprimand.  

On 28 July 2014, the applicant was notified the action will be filed in an UIF.  The Article 15 was reviewed and determined to be legally sufficient.  

On 28 July 2014, the applicant received a Letter of Reprimand (LOR) for providing false information on an official document and blatantly disregarding Air Force regulations regarding leave.  Specifically, she provided an inaccurate return date on her AF Form 988, Leave Request/Authorization, dated 13 June 2014.  
On 5 August 2014, the applicant’s commander determined the LOR would be upheld and filed in her existing UIF.

On 14 August 2014, the applicant was notified by her commander of her intent to recommend her discharge from the Air Force and her entitlement to a Board Hearing for a pattern of misconduct, prejudicial to good order and discipline.  The reasons for the action cited the non-judicial punishments imposed under Article 15 of the UCMJ on 2 December 2013 and 17 July 2014, to include, the LOR and UIF action.  

On 14 August 2014, the applicant acknowledged receipt of the action.

On 25 August 2014, the applicant consulted with legal counsel, elected a hearing before an administrative discharge board, and acknowledged her right to submit statements in her own behalf.  

On 26 August 2014, the applicant’s commander recommended an under honorable conditions (general) discharge based upon the specific reasons contained in the applicant’s notification letter.  

On 17 September 2014, the applicant was notified of a hearing before an administrative discharge board to investigate her commander’s recommendation that she be discharged and the specific allegations contained in her notification memorandum.  

On 17 September 2014, the applicant acknowledged receipt of the Notification of Hearing before an Administrative Discharge Board.  

On 1 October 2014, a discharge board convened and after presentation of the applicant’s case and deliberation, the board members returned a finding that she should be separated with an honorable discharge, with probation and rehabilitation (P&R).  

On 24 October 2014, the administrative discharge case was found to be legally sufficient.  

On 29 October 2014, the discharge authority directed the applicant be furnished an honorable discharge without the opportunity for probation and rehabilitation.  

On 6 November 2014, the applicant was furnished an honorable discharge with a narrative reason for separation of “Pattern of Misconduct,” and was issued a reentry code of 2C (Involuntarily separated with an honorable discharge) and separation program designator (SPD) code of GKA (Discreditable Incidents).  She was credited with 7 years, 5 months, and 15 days of active service 
The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C, D, and E.  
AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  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.  In this case the applicant was alleged to have made a false official statement, with the intent to deceive, to her commander.  The statement purportedly pertained to a sick call visit by the applicant.  The issue appears to be whether or not the applicant was told to go back to the medical clinic by a medical care provider or not.  The applicant was offered an Article 15; she consulted a lawyer, and accepted NJP proceedings.  Her commander found she committed the offense, imposed punishment, and placed the NJP in an UIF.  The applicant argues that the punishment is unwarranted and that it is all just a misunderstanding.  The applicant had the opportunity to make this argument to her commander and the appellate authority as part of the Article 15 process.  The commander and the appellate authority were in the best position to hear such factual arguments.  Punishment decisions are within the discretion of the commander imposing punishment.  In this case, the commander exercised her discretion and there is no error or injustice that would warrant reversing the commander’s decision.  

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

AFPC/DPSIM recommends denial.  The applicant received non-judicial punishment on 25 November 2011 for failure to refrain from executing an unauthorized aerobic maneuver and the commander imposed punishment on 1 December 2011.  However, the applicant’s appeal decision, commander’s action on appeal, and the appellate authority action on the appeal cannot be determined because the AF Form 3070 provided was not complete.  

Examiner’s Note:  the AFPC/DPSIM advisory addresses NJP unrelated to the applicant’s request.  

A complete copy of the AFPC/DPSIM evaluation is at Exhibit D.  

AFPC/DPSID recommends denial.  The applicant received a referral EPR rendered after receiving an Article 15 and demoted to the rank of Senior Airman for making a false official statement.  The evaluators are obligated to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and potential.  Only the evaluators know how much an incident influenced the report.  In accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, 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 have been taken.  The rating chain appropriately chose to comment and document on the underlying wrongdoing, which caused the report to be referred to the applicant for comments and consideration to the next evaluator.  The applicant has not demonstrated any evidence within her case of an error or injustice in the legal sufficiency of the Article 15, and the referral EPR which comments upon it.  Based upon the legal sufficiency of the Article 15 as rendered, and no evidence that the Article 15 punishment was ever set aside, its mention in the applicant’s contested report was appropriate, and as such there is no basis to which support can be rendered for the removal of the contested evaluation.  

Air Force policy is that an evaluation report is accurate as written when it becomes a matter or record.  Additionally, it is considered to represent the rating chain’s best judgment at the time it is rendered.  To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain—not only for support, but also for clarification/explanation.  The applicant has failed to provide any information/support from any rating official on the contested EPR.  It is determined that the referral report was accomplished in direct accordance with all applicable Air Force policies and procedures.  Once the 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.  The applicant has not substantiated that he contested EPR was not rendered in good faith by all evaluators based on knowledge available at the time.  

A complete copy of the AFPC/DPSID evaluation is at Exhibit E.  



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 21 November 2014 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit F).



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 AFLOA/JAJM and AFPC/DPSID, and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  We note the advisory opinion of AFPC/DPSIM does not address the applicant’s request and, as such, has no bearing on our decision.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2014-00467 in Executive Session on 6 January 2015, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00467 was considered:

	Exhibit A.  DD Form 149, dated 3 February 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLOA/JAJM, dated 6 March 2014. 
Exhibit D.  Letter, AFPC/DPSIM, dated 10 March 2014, atch.
Exhibit E.  Letter, AFPC/DPSID, dated 3 November 2014.
Exhibit F.  Letter, SAF/MRBR, dated 21 November 2014.


						

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