RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01119

  						COUNSEL:  NONE

						HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

1.  His non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), dated 9 Jan 06, be set aside and expunged from his record. 

2.  With the Article 15 removed from his record, his record be corrected to reflect he was selected for and appointed to the grade of second lieutenant (2Lt) in the Regular Air Force as if he had been selected by the Officer Training School (OTS) Non-rated Selection Board 12OT02; or with an effective date of rank (DOR) deemed appropriate by the Board.  

3.  Alternatively, with the Article 15 removed from his record, he be provided a Special Selection Board (SSB) for the Officer Training School (OTS) Non-rated Selection Board 12OT02.  At a minimum, his 12OT02 application should be assessed against the lowest board-scoring applicant from that board.


APPLICANT CONTENDS THAT:

1.  His commander’s intent was to remove his Article 15 from his record.  When his commander took the action to remove his Article 15 from his file, rate him as an overall “5” on his next enlisted performance report (EPR), and wrote on the AF Form 1058, Unfavorable Information File (UIF) Action, that “I have decided to remove the following document from your UIF: Article 15, dated 9 Jan 06,” he was exonerated.  

2.  The Article 15 no longer serves any useful purpose and is harsh in light of his good duty performance. 

3.  He completed his Community College of the Air Force (CCAF), Bachelors of Science (BS) Degree, and Masters in Business Administration (MBA) degrees.  His commander approved his Article 15 waiver for his application to Officers Training School (OTS), however, AFRS/RSOC denied the waiver.  The second time he applied for OTS, his subsequent commander denied his Article 15 waiver.  Had his Article 15 been removed from his records as intended by the AF Form 1058 action, he would have been accepted into Basic Officer Training (BOT) in 2012 or 2013. 

4.  AFBCMR Docket Number BC-2003-02232 is a similar case where a majority of the Board voted to remove a Letter or Reprimand (LOR) from the applicant’s record which was issued for dereliction of duty, deeming the punishment “somewhat harsh.”  

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 2 Mar 04.

On 2 Nov 05, the applicant was issued a referral EPR covering the period 2 Mar 04 through 2 Nov 05 which rated him as “Unacceptable” in Section III, Block 4, “How is Ratee’s Conduct On/Off Duty?” The referral EPR included the statement “Received LOR from 52EMS/CC for making false official statements in attempt to defraud the U.S. Government.”  

On 9 Jan 06, the applicant’s commander issued him an Article 15 for, from on or about 6 Dec 05 to on or about 9 Dec 05, negligently failing to stay awake during duty hours.  For this he was reduced to the grade of Airman, suspended through 8 Nov 06, and assigned 30-days of correctional custody.  This action resulted in the establishment of a UIF on 18 Jan 06. 

According to the documentation provided by the applicant:

	a.  On 8 Aug 07, the applicant’s commander removed the Article 15 from his UIF.  

      b.  On 30 Jan 12, he applied for a waiver of the restriction in AFI 36-2013 to allow him to apply to OTS/BOT on Board 12OT02.  He provided concurrence from his squadron commander and a letter of support from his group commander.  

      c.  On 5 Apr 12, AFRC/RSOC denied his request to apply for OTS/BOT.  

	d.  On 8 Feb 13, the applicant’s commander denied his request for a waiver to AFI 36-2013, preventing him from applying to the 2013 OTS/BOT (13OT03) Selection Board as well.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.    


AIR FORCE EVALUATIONS:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice.  Nonjudicial punishment (NJP) is authorized by Article 15, Uniform Code of Military Justice (UCMJ), and permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Service members must first be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander’s 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 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 extend of punishment.  

On 8 Aug 07, the applicant’s commander decided to remove his Article 15 action from his UIF.  While the applicant’s personal and professional achievements are laudable and should certainly be considered by the Board when considering the applicant’s request, there was no legal error or injustice with the Article 15 process which would warrant setting aside the Article 15 action. 

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

AFRS/RSOC recommends denial indicating there is no evidence of an error or an injustice.  IAW AFI 36-2013, Officers Training School (OTS) and Enlisted Commissioning Programs, an applicant is ineligible to apply for OTS if the applicant "Has ever been punished under Article 15 of the UCMJ."  The applicant did in fact have an Article 15 at the time of his application submission.  AFI 36-2013 does allow for waiver consideration, stating in Notes 1 and 7, "when unusual or unique circumstances warrant it".  AFI 36-2013 goes on to state a "commander in the processing chain may disapprove a waiver request when, in their judgment, the applicant does not meet the exceptional level as described for each specific program outlined in this AFI."  The applicant submitted requests for Article 15 waivers in Apr 12 and again in Feb 13.  The Article 15 waiver was denied by AFRS/RSOC in Apr 12 and by his commander in Feb 13.  Both waiver disapprovals are justified and are in line with guidance provided in AFI 36-2013.  AFRS does not have the discretion to mask the applicant’s Article 15.  IAW AFI 36-2013, Table 3.1, Rule 8, an applicant’s service records, to include derogatory information documents, must be included in BOT applications.  The applicant’s requests for waivers were managed and determinations were conducted in accordance with applicable AFRS directives.  There is no basis to reconsider his application for comparison to l2OT02 boarded applicants.  He may apply for future non-rated line officer boards, provided he can commission prior to age 35.

A complete copy of the AFRS/RSOC evaluation is at Exhibit D.


APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 13 May 15 for review and comment within 30 days (Exhibit E).  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 (OPR) 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.

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-2014-01119 in Executive Session on 11 Jun 15 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 13 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 18 Apr 14.
      Exhibit D.  Memorandum, AFRS/RSOC, dated 28 Apr 14.
	Exhibit E.  Letter, SAF/MRBR, dated 13 May 15.