RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01412

						COUNSEL:  NONE

						HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

1.  His non-judicial punishment (NJP), received on 16 Sep 13, under Article 15 be removed from his military record.

2.  Removal of his unfavorable information file (UIF) from his military record.

3.  Removal of the recommendation for his administrative discharge from his military record.

4.  Reinstatement of his grade of technical sergeant (E-6).


APPLICANT CONTENDS THAT:

His commander judged him with an unfair bias despite having witness statements of the incident of this matter proving his innocence.  

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 3 Dec 97.

On 3 Jun 13, a physical evaluation board (PEB) determined the applicant was unfit for duty because of anxiety disorder with mood disorder not otherwise specified (MD-NOS), recommending permanent retirement, with a 30 percent disability rating. 

On 4 Sep 13, the applicant’s commander notified him of his intent to impose non-judicial punishment (NJP) on the applicant for alleged misconduct in violation of the following Articles of Uniform Code of Military Justice (UCMJ):
      
      1.  Article 89; he did, at or near his duty station, on divers occasions on or about 18 Aug 13, behave himself with disrespect toward a superior commissioned officer, by being insolent, and impertinent.

	2.  Article 92; having knowledge of a lawful order (Liberty Policy for all U.S. military forces located and operating in Japan) issued by the Numbered Air Force Commander, fail to obey the lawful order by wrongfully violating the drinking curfew established in the Liberty Policy.

	3. Article 107; he did, at or near his duty location, on or about 18 Aug 13, with intent to deceive, make to a commissioned officer an official statement that he was not drinking, which was a false statement in that he was drinking, and he was aware this statement was false.  

	4. Article 134; he was, at or near his duty location, on or about 18 Aug 13, drunk and disorderly which conduct was under the circumstances, to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.  

On 5 Sep 13, the applicant’s counsel requested and was granted a delay until 21 Sep 13 for the applicant to respond to the commander’s NJP notification.  

On 16 Sep 13, the applicant appealed and submitted matters in writing regarding the proposed NJP.  Subsequent to the applicant’s appeal, his commander and the Appellate Authority Action on appeal denied his appeal, and rendered the NJP, which consisted of a reduction in grade to staff sergeant (E-5), suspended forfeitures of $1532.00 per month for two months, and 30 days extra duty.  This action was filed in the applicant’s UIF.

On 1 Nov 13, the applicant was notified by his commander that he was recommending his Under Honorable Conditions, (General) discharge from the Air Force according to authority AFPD 36-32, Military Retirements and Separations, and AFI 36-3208, Administrative Separation of Airmen, Chapter 5, for Misconduct: Conduct Prejudicial to Good Order and Discipline, paragraph 5.50.2, and Failure in Alcohol Abuse Treatment, paragraph 5.32.  His reasons for this recommendation were: 

	1. On or about 18 Aug 13 he was insolent, impertinent, and displayed disrespectful behavior towards a superior officer.  He failed to obey lawful orders, made a false official statement, violated the drinking curfew order, and was drunk and disorderly.  For this misconduct, he received an Article 15, dated 16 Sep 13.

	2. On 14 Apr 12, the applicant drove while under the influence of alcohol with two airmen in his vehicle, receiving a memorandum for record (MFR) on 1 Nov 12.

	3. On 9 Apr 12, he received a letter of reprimand (LOR) for failing to report for a dental appointment on two different occasions.

	4. On 19 Feb 09, the applicant received an Article 15, for being drunk and disorderly; which conduct was of a nature to bring discredit upon the armed forces.  

	5. On 5 Sep 13, in a MFR from the duty location’s licensed Clinical Psychologist stated that the applicant failed Alcohol and Drug Abuse Prevention Treatment (ADAPT) after the above mentioned incident.  Furthermore, he stated that the applicant received inpatient treatment from 14 Jun 12 to Aug 12 for alcohol dependency.  Upon return, he was referred to ADAPT Aftercare where he became belligerent, inappropriate, and disrespectful resulting in him being asked to leave group treatment, but continued to receive one-on-one ADAPT.

On 1 Nov 13, the applicant submitted a conditional waiver of his right to a discharge board contingent on receiving no less than a General service characterization.  He did not provide any statements contesting either basis for discharge or any other matters for consideration.  

On 4 Nov 13, the applicant’s command chain endorsed the acceptance of the applicant’s conditional waiver to his right to a discharge board on the condition that he receive an Under Honorable Conditions (General) discharge characterization.

On 10 Dec 13, the Separation Authority directed the discharge of the applicant from the Air Force with an Under Honorable Conditions (General) service characterization pursuant to the provisions of AFI36-3208, primary basis being Misconduct: Pattern of Misconduct – Conduct Prejudicial to Good Order and Discipline.  

On 27 Feb 14, AFPC/DPFDD requested “Dual Action and Grade Determination” pertaining to the applicant by the Secretary of the Air Force (SAF) Personnel Council (PC).

On 10 Apr 14, SAFPC ruled that SAF directed the applicant be permanently retired with an Honorable service characterization and a disability rating of 30 percent under the provisions of Title 10, United States Code (U.S.C.), Section 1201, terminating the administrative discharge action under the provisions of AFI 36-3208.  In addition, the SAF found that the applicant did not serve satisfactory in the higher grade of technical sergeant (E-6) within the meaning of Title 10, U.S.C., Section 1372.  

On 28 Aug 14, the applicant was relieved from active duty, and effective 29 Aug 14, permanently disability retired in the grade of staff sergeant (E-5), with compensable percentage for physical disability of 30 percent, and credited with 16 years, 8 months, and 22 days of active service.  

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


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice regarding the Article 15 process.  After carefully reviewing the records of this case, AFLOA/JAJM could not find good cause to reverse or otherwise change the commander’s decision with respect to the Article 15 or UIF.  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 commander's 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.

In this case the applicant allegedly was insolent, impertinent, and displayed disrespectful behavior towards a superior officer. He failed to obey lawful orders, made a false official statement, violated the drinking curfew order, and was drunk and disorderly; these offenses being in violation of Articles 86, 80, 92, 107, and 134 UCMJ.  After considering the evidence, the applicant's commander found that the applicant committed the offenses.  The applicant appealed the matter.  The appellate authority, after considering all of the matters presented in the applicant's appeal, denied the appeal on 25 Sep 13.  The applicant's commander chose to place the Article 15 in a UIF. 

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

AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice warranting removal of the applicant’s administrative discharge documents from his military record.  The applicant’s commander recommended his discharge under AFI 36-3208, for Misconduct: Conduct Prejudicial to Good Order and Discipline and for Failure in Alcohol Abuse Treatment.  The applicant’s discharge case went to the SAFPC for review and decision as to whether or not to administratively discharge the applicant or allow him to be permanently retired.  On 10 Apr 14, SAFPC directed the applicant be permanently retired with an Honorable service characterization and a disability rating of 30 percent.  This action terminated the administrative discharge action initiated by the applicant’s commander.  The circumstances surrounding the recommendation for discharge and the decision by SAFPC are personnel actions that become a matter of record.  All personnel actions are required to be filed accordingly in the master personnel records in accordance with AFI 33-322, Records Management Program.  

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

AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice, warranting restoration of the applicant’s former grade of technical sergeant (E-6).  Based on the Air Force Legal Operations Agency (AFLOA) review and determination that there were no legal errors requiring corrective action regarding the non-judicial process warranting removal of the Article 15 from the applicant’s military records, AFPC/DPSOE recommends denying the applicant’s request to restore his grade of technical sergeant (E-6).  

A complete copy of the AFPC/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 4 Aug 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 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.


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-2014-01412 in Executive Session on 24 Mar 15 under the provisions of AFI 36-2603:

	
 

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 20 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 27 May 14.
	Exhibit D.  Memorandum, AFPC/DPSOR, dated 3 Jun 14, 
	            w/atchs.
	Exhibit E.  Memorandum, AFPC/DPSOE, dated 6 Jun 14
	Exhibit F.  Letter, SAF/MRBR, dated 4 Aug 14.