RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01339

						COUNSEL:  NONE

						HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

His non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) received on 1 April 2013 be set aside and his grade of technical sergeant (E-6) be restored.  

His referral AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt), rendered for the period 20 June 2012 thru 19 June 2013, be declared void and removed from his record.  


APPLICANT CONTENDS THAT:

He did not commit the offenses in which he was charged with by his commander, resulting in unjust treatment and punishment.  This was his first ever offense and his commander punished him with an erroneous Article 15 and a reduction in rank.  His commander further tried to use a separation board for his release from the Air Force; however, the board did not favor the decision.  The board found him not guilty of two out of three charges on his Article 15.  Hence, the Article 15 should be void.  

His commander is in violation of Article 93, UCMJ, cruelty and maltreatment, for refusing to withdraw his Article 15 and continuing to charge him with offenses from which he has been found innocent.  He submitted a congressional and Inspector General (IG) complaint; however, the congressman failed to follow-up on his case and the IG stated there was no foul on the behavior of the commander.  

His referral EPR will keep him from remaining in the Air Force beyond his current enlistment.  

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





STATEMENT OF FACTS:

The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 17 June 1998.  His expiration term of service was 17 May 2015.  

On 18 January 2013, the applicant received a Letter of Admonishment (LOA) for non-compliance in conducting quality checks on recruits.  

On 18 March 2013, the applicant was notified of his commander’s intent to impose NJP under Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction in the performance of his duties by failing to refrain from misusing his government vehicle (GOV) for personal use, two specifications of failure to obey a lawful general regulation by wrongfully taking action to qualify an ineligible recruit in the delayed enlistment program (DEP) and developing a personal relationship with a recruit, and signing a travel voucher, which is an official record, with the intent to deceive in violation of Articles 92 and 107, respectively, of the UCMJ. 

On 26 March 2013, after consulting with legal counsel, the applicant waived his right to trial by court-martial and elected to submit matters on his behalf and request a personal appearance.  

On 1 April 2013, the commander found the applicant committed only the offenses alleged under Article 92 and imposed punishment of reduction to the grade of staff sergeant (E-5), forfeitures of $200.00 pay per month for two months, suspended through 30 September 2013 and attend a financial management class by 27 June 2013, and a reprimand.  

On 8 April 2013, the applicant appealed the punishment.  The basis of the appeal was that the punishment imposed was unjust and disproportionate to the offense committed.  Specifically, the recruit was never ineligible to join the Air Force, his relationship with the recruit was purely professional, and he had no reason to misuse a GOV because he had a rental car during the alleged timeframe.  He felt a Letter of Reprimand (LOR) or a suspended reduction in grade would be an appropriate punishment instead of NJP action.  The appellate authority denied his appeal and the action was filed in an UIF.  The record was reviewed and determined to be legally sufficient.  

On 21 May 2013, the applicant received a LOR for failing to refrain from using his Government Travel Card (GTC) for personal expenditures, in violation of Article 92, UCMJ.  Specifically, he used his GTC 18 times, from 28 September 2012 through 26 November 2012, totaling $3,497.86.  

On 21 May 2013, the applicant was issued an AF Form 1058, Unfavorable Information File Action (UIF), indicating the commander’s intent to establish a UIF and place him on the control roster based on the 21 May 2013 LOR.  

On 28 May 2013, the applicant acknowledged receipt of the UIF/control roster and his intent to provide information to be considered before a final decision is made.

On 5 June 2013, the applicant’s first sergeant indicated the applicant provided a letter from his landlord in response to his 21 May 2013 LOR/Control Roster.  

On 8 July 2013, the AFRS/IG concluded an investigation of the applicant’s complaint filed on 11 Apr 2013, which contained  an allegation against a member of his squadron indicating that the applicant’s personal safety was placed at risk because he was directed to work an 18-hour workday, an allegation of a perceived double standard on duty times, child care arrangements, and uniformed wear at the Military Entrance Processing Station (MEPS), and he alleged misrepresentation for the purpose of his meetings with members of the recruiting squadron headquarters.  However, these allegations were determined not to be in violation of any instruction or law and were dismissed without any further action.  Also, the applicant claimed his Article 31 rights were read in front of leadership; however, this allegation was closed without further action because it was determined there was no violation of instruction or law.  

The applicant further alleged that government documents were falsified by the annotation of his nephew attending delayed entrance program (DEP) meetings while living in Indiana, however, it was determined this was not retaliation against him because he was not subject to an unfavorable personnel action.  As such, he was not entitled to a response because it was considered a third-party complaint.  Also, his allegations of squadron personnel practicing illegal booking procedures were determined to be a command issue and were referred for review.  The applicant was informed that he would be made aware of the determination.  

Lastly, the applicant requested his allegation of reprisal against his commander be removed.  Therefore, this allegation was dismissed and no further action was taken.  .  

On 18 July 2013, the applicant requested his NJP offered on 18 March 2013 be set aside; however, his commander denied his request.  

On 18 July 2013, the applicant received a LOR for a false official statement, in violation of Article 107, UMCJ.  Specifically falsely indicating he completed a financial management class.  

On 18 July 2013, an AF Form 366, Record of Proceedings of Vacation of Suspended Non-judicial Punishment, was initiated to notify the applicant of his commander’s intent to vacate the suspended portion of his NJP action due to the dereliction in the performance of his duties, in violation of Articles 92, UCMJ.  

On 18 July 2013, the applicant’s EPR was referred to him due to the rating and comments relative to his Article 15, as well as, the impeding removal from his special duty assignment.  He acknowledged receipt and elected to submit comments.  Specifically, the applicant indicated there were false negative comments on his report, several accomplishments were not reflected, and inaccuracy in indicating he received a reprimand and forfeiture of $400 dollars pay, as well as, the circumstances surrounding his Article 15 were not resolved.  

On 26 July 2013, after consulting with legal counsel, the applicant elected to submit matters on his behalf and requested a personal appearance regarding his NJP vacation action.  

On 31 July 2013, the commander found the applicant violated the conditions of his suspension.  Specifically, the applicant’s commander found he failed to adhere to the additional condition of attending a financial management class by 27 June 2013 and thereby imposed punishment of forfeitures of $200.00 pay per month for two months.  

On 13 September 2013, the applicant received a LOR for driving on a military installation with a suspended license, no insurance, and no registration, in violation of Article 92, UCMJ.  

On 17 September 2013, the AFRS/IGQ concluded a reprisal complaint filed by the applicant on 2 June 2012.  Specifically, his complaint alleged that an attempt of force was made on him to sign a Memorandum for Relief of Cause that had not yet been signed by his commander.  The investigation was reviewed under the military whistleblower protection and consideration was given for the possibility for abuse of authority.  The investigation failed to disclose any evidence that demonstrated actions outside the scope of authority granted under applicable law, regulation, or policy.  Furthermore, the AFRS/IGQ concluded there was no abuse of authority in the applicant’s case.  

On 23 September 2013, the applicant was notified of a hearing before an administrative discharge board to investigate his commander’s recommendation that he be discharged without the opportunity for probation and rehabilitation (P&R) due to his Article 15 non-judicial punishment, receipt of the vacation of suspended non-judicial punishment, three LORs, one LOA, and placement on a Control Roster for his misconduct in order to correct inappropriate behavior.  He did not recommend probation or rehabilitation.  
On 23 September 2013, the applicant acknowledged receipt of the hearing, consulted with legal counsel, elected the hearing, and acknowledged his right to submit statements in his own behalf.  
	
On 2 October 2013, the applicant’s commander recommended he receive an under honorable conditions (general) discharge based upon the specific reasons contained in his notification letter.  

On 11 December 2013, a discharge board convened and after presentation of the applicant’s case and deliberation, the board members returned a finding that he should be retained.  

On 7 January 2014, the administrative discharge case was found to be legally sufficient.  

On 17 January 2014, the discharge authority concurred with the findings and recommendation of the Administrative Discharge Board and directed the applicant to be retained.  

On 18 January 2014, the applicant requested his NJP offered on 18 March 2013 be set aside; however, his commander denied his request.  

On 24 February 2014, the applicant’s commander recommended his relief from recruiting for cause due to his failure to adapt as a military member after multiple disciplinary actions and for his failure to maintain a security clearance.  

On 31 July 2014, according to special orders AC-014163, the applicant was relieved from active duty and retired, effective 1 August 2014 in the grade of staff sergeant, with a narrative reason for separation of “Temporary Early Retirement Authority,” issued a reentry code of 2V (Applied for retirement, or retirement approved) and separation program designator (SPD) code SBE (Early Retirement).  He was credited with 16 years, 1 month, and 14 days of active service.  

On 12 September 2014, the Secretary of the Air Force found the applicant did not serve satisfactorily in any higher grade and determined he would not be advanced under the provisions of Title 10 United States Code (U.S.C.) Sections 8964.  

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


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 claims he did not commit the three offenses his commander “charged” him with, and that the punishment was unjust as this was his first offense ever.  As support, he submitted the findings of the Administrative Discharge Board (ADB) from December 2013.  The applicant advised the ADB declared he was “not guilty” on two out of three charges on his Article 15.  After carefully reviewing the record and the package submitted by the applicant, we cannot find good cause to reverse or otherwise change the Commander's decision, even after considering the information provided by the applicant that the ADB found he did not commit two of the alleged offenses.  The applicant's commander was in the best position to review the evidence presented in the applicant's case at the time of the Article 15.  The applicant had consulted counsel and accepted the Article 15.  Furthermore, the applicant appealed the Article 15, and the appellate authority, after considering all of the evidence upheld the Article 15.  There are not any facts indicating any irregularities with the Article 15 process.  If the applicant disagreed with the misconduct allegations he could have turned down the Article 15, but he chose not to do so at the time.

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

AFPC/DPSID recommends denial.  Based upon the aforementioned recommendation from the Article 15 subject matter expert and lack of corroborating evidence provided by the applicant, his request to void the contested EPR should not be granted.  The applicant has not provided compelling evidence to show that the report was unjust or inaccurate at the time it was written.  Evaluators are obliged 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 have been taken.  In this case, the applicant received an Article 15 and 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 provided no evidence within his case to show that the referral comment on the EPR was inaccurate or unjust, therefore, the inclusion of the referral comment on the EPR was appropriate and within the evaluator’s authority to document given the incident.  Moreover, a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/ commander served as a final "check and balance" in order to ensure that the report was given a fair consideration in accordance with the established intent of the current Officer and Enlisted Evaluation System in place.  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 on the contested report was proper.  

Air Force policy is that an evaluation report is accurate as written when it becomes a matter of 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.  As such, the referral report was accomplished in direct accordance with all applicable Air Force policies and procedures.  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.  The applicant has not substantiated that the 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 D.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 30 September 2014 and 9 April 2015 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.  The applicant alleges his commander punished him with an erroneous Article 15 and a reduction in rank and his referral EPR will hinder him from remaining in the Air Force.  After a thorough review of the evidence of record and the applicant’s complete submission, we do not find the evidence provided sufficient to override the rationale provided by the Air Force offices of primary responsibility.  We also note that the applicant filed two complaints with AFRS/IG; however, the first complaint were third party allegations and according to AFRS/IG he was not entitled to a response and in the second complaint alleging reprisal AFRS/IGQ concluded the investigation failed to disclose abuse of authority and any evidence that demonstrated actions outside the scope of authority granted under applicable law, regulation, or policy.  While the applicant alleges his commander is in violation of Article 93, UCMJ, cruelty and maltreatment, for refusing to withdraw his Article 15 and continuing to charge him with offenses from which he has been found innocent, he has not demonstrated that the Article 15 process was not legally sufficient or the contested report is not a true and accurate assessment of his performance and demonstrated potential during the specified time period.  The applicant has not provided evidence to persuade us to the contrary and therefore, we agree with the opinion and recommendation of the Air Force offices of primary responsibilities and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  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-2014-01339 in Executive Session on 27 May 2015 under the provisions of AFI 36-2603:

	Chair
	Member
	Member








The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-01339 was considered:

	Exhibit A.  DD Form 149, dated 20 March 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 10 June 2014.
	Exhibit D.  Memorandum, AFPC/DPSID, dated 8 April 2015,  
                 w/atchs.
	Exhibit E.  Letters, SAF/MRBR, dated 30 September 2014 and     
                 9 April 2015.  
	Exhibit F.  AFRS/IG Complaint Analysis – WITHDRAWN.