RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00797
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His AF Form 3070A, Record of Nonjudicial Punishment Proceedings
(AB thru TSgt), dated 31 Oct 12, be set aside in its entirety; and
all records resulting from it be removed from his record.
APPLICANT CONTENDS THAT:
He is not guilty of the charges brought against him during his
Nonjudicial Punishment (NJP) proceedings for the following
reasons:
Mere possession of Flexeril is not punishable under Article 92,
UCMJ;
Flexeril is not an intoxicating substance as described by AFI
44-120, Military Drug Demand Program, paragraph 1.1.6. Since he
did not use any of the Flexeril, he could not have used it
contrary to its medical purpose or in excess of prescribed dosage;
If Flexeril was an intoxicating substance, mere possession is
only punishable under AFI 44-120, paragraph 1.1.6 if there was
intent to use it;
There was no evidence he had used or had intended to use
Flexeril and there was no argument to support a guilty decision,
so Counsel advised him to accept the Article 15.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
On 26 Jul 11, the applicant enlisted in the Regular Air Force.
According to the AF Form 3070A provided by the applicant, dated 31
Oct 12, on or about 17 Oct 12, he failed to obey a lawful general
regulation, AFI 44-120, by wrongfully possessing a bottle of
medication that was not prescribed to him.
On 31 Oct 12, he received notice his commander was considering
whether to punish him under Article 15, UCMJ.
On 5 Nov 2012, he acknowledged receipt and indicated he had
consulted a lawyer, was waiving his right to court-martial
accepting nonjudicial punishment proceedings, had attached a
written presentation, and requested a personal appearance.
On 7 Nov 12, his commander decided he committed the alleged
offense, violating Article 92, UCMJ. He reprimanded him and
reduced him to the grade of airman which was suspended through
6 May 13. The applicant acknowledged receipt that day.
On 14 Nov 12, he notified his commander he was appealing and
providing a written submission. His commander denied his appeal
and stated the information would be placed in an Unfavorable
Information File (UIF).
On 15 Nov 12, the applicant acknowledged he had been informed
regarding the UIF.
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 (10
U.S.C. § 815), and governed by the Manual for Courts-Martial (Part
V) and AFI 51-202, Nonjudicial Punishment. This procedure permits
commanders to dispose of certain offenses without trial by court-
martial unless the service member objects. Service members first
must be notified by their commanders of the nature of the charged
offenses, the evidence supporting the offenses, and the
commanders intent to impose the punishment. The member may
consult with a defense counsel to determine whether to accept the
NJP or demand trial by court-martial. Accepting the proceedings
is simply a choice of forum; it is not an admission of guilt. NJP
is also not, when imposed, a criminal conviction.
A member accepting Article 15 proceedings may submit written
matters to, and have a hearing with, the commander imposing the
punishment. The member may have a spokesperson at the hearing,
may request that witnesses appear and testify, and may present
evidence. The commander must consider any information offered by
the member and must be convinced by reliable evidence that the
member committed the offenses before imposing punishment. Members
who wish to contest their commanders determination or the
severity of the punishment imposed may appeal to the next higher
commander. The appeal authority may deny the appeal altogether if
the appeal authority agrees with the action taken or may remove or
modify the Article 15 if he or she disagrees in whole or in part
with the action. That said, 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.
The complete JAJM evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant
on 15 May 14 for review and comment within 30 days (Exhibit D).
As of this date, no response has been received by this office.
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 applicants complete submission in judging the
merits of the case; however, we agree with the opinion and
recommendation of the Air Force office of primary responsibility
and adopt its rationale as the basis for our conclusion the
applicant has not been the victim of an error of injustice.
Therefore, in the absence of evidence to the contrary, we find no
basis to recommend granting the requested relief.
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 documentary evidence pertaining to AFBCMR Docket
Number BC-2014-00797 was considered:
Exhibit A. DD Form 149, dated 19 Feb 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFLOA/JAJM, dated 18 Apr 14.
Exhibit D. Letter, SAF/MRBR, dated 15 May 14.
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