RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-01056
			COUNSEL:  NONE
			HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

His Article 15 and Unfavorable Information File (UIF) be removed 
from his record and that his rank be restored.


APPLICANT CONTENDS THAT:

He received an Article 15 in violation of the Uniformed Code of 
Military Justice (UCMJ) for violating Article 113 (sleeping on 
post) for which he was reduced in rank to airman, with the 
reduction below airman first class suspended for six months.  He 
believes punishment was too harsh given he provided adequate 
proof that he was not asleep.  

His flight chief annotated on the AF Form 1168, Statement of 
Suspect/Witness/Complainant, that he found him asleep on post on 
17 Oct 13 at 0403 hours, local.  He subsequently provided proof 
showing he was not asleep; but on a phone call with his BDOC 
controller at 0403 local.  Though he provided a statement from 
the BDOC controller stating such, he was still found guilty 
under Non-Judicial Punishment (NJP) proceedings.

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


STATEMENT OF FACTS:

On 1 Aug 07, the applicant enlisted in the Regular Air Force.  
He was progressively promoted to the grade of Senior Airman 
(SrA) and is currently serving on active duty.
On 8 Sep 08, he signed a notification from his commander that he 
was considering NJP proceedings under Article 15 of the UCMJ for 
sleeping on post.  On 16 Sep 08, his commander advised that the 
Article 15 would be filed in his UIF.  He was reduced to the 
grade of airman with a new date of rank of 10 Sep 08.  
On 9 Apr 09, he was notified his rater was giving him a referral 
Enlisted Performance Report (EPR) based on receiving an Article 
15 for sleeping on post.  He acknowledged receipt that same day.    
On 29 Oct 13, he signed another notification from his commander 
that he was considering NJP proceedings under Article 15 of the 
UCMJ for sleeping on post.  He was reduced in grade to airman 
(E-2) with reduction below airman first class (E-3) suspended 
until 28 Apr 14.  His new date of rank for airman first class is 
29 Oct 13.  

On 4 Nov 13, the applicant submitted an appeal in writing.  On 
6 Nov 13, his commander denied his appeal and stated that the 
information would go in his UIF.  On 14 Nov 13, he acknowledged 
receipt.

On 13 Dec 13, he was notified his rater was giving him a 
referral EPR based on receiving an Article 15 for sleeping on 
post.  He acknowledged receipt that same day.
On 17 Dec 13, he submitted a written response to his rater for 
the referral EPR.  He acknowledged failing to perform or meet 
the standards of a posted sentinel and that it was a strong 
failure on his part.  


AIR FORCE EVALUATION:

AFLOA/JAJM recommends the Board not grant the relief sought 
regarding the Article 15 because there was no error or injustice 
with the process.  On 17 Oct 13, the applicant allegedly was 
found sleeping upon his post, in violation of Article 113, UCMJ.  
He was reduced in grade from E-4 to E-2, with reduction below E-
3 suspended until 28 Apr 14.  He was also reprimanded.  The 
applicant appealed, which was denied on 12 Nov 13 and the 
information was placed in a UIF.  While the applicant provided 
what he believed to be adequate proof of his innocence, the 
commander decided he had committed the offense.  

NJP is authorized by Article 15, UCMJ (10 U.S.C. § 815), and is 
governed by the Manual for Courts-Martial (Part V) and AFI 51-
202, Nonjudicial Punishment.  It allows 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.  NJP is also 
not, when imposed, a criminal conviction.  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.  AFLOA/JAJM cannot find good cause to 
reverse or otherwise change the commander’s decision that in 
spite of the evidence of the phone call, the applicant was 
sleeping on post at some point during the time alleged.           

The complete JAJM evaluation is at Exhibit C.

AFPC/DPSIM recommends denial of the applicant’s request to 
remove the NJP and the UIF.  The applicant received NJP on 21 
Oct 13 for sleeping on his post.  He acknowledged receipt and 
provided a written response on 25 Oct 13.  On 29 Oct 13, the 
commander imposed NJP and he acknowledged receipt that day.  The 
applicant submitted in writing on 4 Nov 13, that he made the 
decision to appeal.  On 6 Nov 13, his commander denied the 
appeal and on 12 Nov 13, the appeal authority denied the appeal.  
The applicant acknowledged the appeal denial on 14 Nov 13.  He 
had provided a witness statement that corroborated his statement 
that he was on his phone at 0403 with the BDOC, and not sleeping 
as alleged by his flight chief.  After careful review, it was 
determined the evidence presented was completed properly and 
correct procedures were followed to administer punishment.       

The complete DPSIM evaluation is at Exhibit D.

AFPC/DPSOE recommends the denial of the applicant’s request to 
remove the Article 15.  Based on AFLOA/JAJM’s decision, they 
also recommend denial of the applicant’s request for restoration 
of his rank to SrA.  DPSOE states there were no legal errors 
requiring corrective action regarding the non-judicial process.  
The applicant was administered an Article 15 on 29 Oct 13 for 
being asleep on post.  His punishment consisted of a reprimand 
as well as reduction from the grade of SrA to Amn, with 
reduction below A1C suspended until 28 Apr 14.  He will not be 
eligible for promotion consideration to the grade of SrA until 
he has time-in-grade of 20 months and an EPR that is not a 
referral.       

The complete DPSOE evaluation is at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 1 Aug 14 for review and comment within 30 days 
(Exhibit F).  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 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 (OPRs) and adopt their 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 was considered:

	Exhibit A.  DD Form 149, dated 20 Nov 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 14 May 14.
	Exhibit D.  Memorandum, AFPC/DPSIM, dated 19 Jun 14.
	Exhibit E.  Memorandum, AFPC/DPSOE, dated 19 Jul 14.
	Exhibit F.  Letter, SAF/MRBR, dated 1 Aug 14.