RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02586
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His reentry code of 4H which denotes Serving suspended
punishment pursuant to Article 15, Uniform Code of Military
Justice (UCMJ), be changed to allow him to reenlist.
APPLICANT CONTENDS THAT:
He believes the RE code to be in error. The Article 15 he
received was not warranted due to his case being dismissed
without prejudice. Since the Article, he has grown mentally and
has gained maturity and knowledge. He is not the same young man
he was during his first enlistment. He is involved in his
community and recently elected as an executive officer at his
local American Legion. He is also a member of the American
Legion Honor Guard.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The applicant entered active duty in the Regular Air Force on
7 May 2002.
The applicant received nonjudicial punishment under Article
15 of the Uniform Code of Military Justice (UCMJ), dated 23 May
2005, for assault by brandishing and pointing an unloaded
firearm at someone, in violation of the UCMJ, Article 128. His
punishment consisted of a reduction in grade from senior airman
to airman first class, a forfeiture of $792 pay per month for
two months, suspended through 2 December 2005, after which time
it will be remitted without further action, unless sooner
vacated; a 60 day restriction to the limits of Malmstrom Air
Force Base and a reprimand.
The applicant was honorably discharged on 9 May 2006 in the
grade of airman first class under the provisions of AFI 36-
3208 (Completion of Required Active Service). He served 4 years
on active duty.
On 6 August 2014, AFPC/DPSOAE advised the applicant that his RE
code is in error as his suspended punishment under Article
15 expired on 2 December 2005, which was before his 9 May
2006 separation date. Since his commander did not select or
non-select him under the Selective Reenlistment Program (SRP),
his RE code is being corrected to 3K (Reserved for use by HQ
AFPC or the AFBCMR when no other code applies or is
appropriate. This code is waiverable for reentry in the
military if he is otherwise eligible and if the component he is
trying to join desires to waive the code.
AIR FORCE EVALUATION:
AFLOA/JAJM recommends disapproval in regards to removing the
Article 15 from his personnel records. JAJM states the
applicant believes that because his case was dismissed without
prejudice in the local court system, the NJP should also be
removed from his record. Accepting NJP is a process completely
separate from any judicial proceedings in a civilian court.
Just because a civilian court chooses not to move forward with
the case does not mean there was not sufficient evidence to
warrant NJP.
The application was not submitted in a timely manner (within
three years), but the merits may be considered by the Board.
The applicant may have realized his discharge paperwork had the
wrong coding in 2013, but he knew he had the Article 15 on his
permanent record when he separated from the military in 2006.
The coding on his DD 214 has already been corrected by AFPC.
The applicant had the opportunity to make his arguments to his
commander and the appellate authority as part of the Article
15 process. The commander and the appellate authority were in
the best position to hear such factual arguments. Punishment
decisions are within the discretion of the commander imposing
punishment. The commander should consider the unique facts of
each case, the offense committed, and the individual being
punished. In this case, the commander exercised his discretion
and there is no error or injustice that would warrant reversing
the commanders decision on upholding the NJP.
The complete AFLOA/JAJM evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 12 November 2014, a copy of the evaluation was forwarded to
the applicant for review and response 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 not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of an error or injustice warranting a
change to the applicants RE code to allow him to reenlist.
AFPC/DPSOAE has confirmed that the 4H RE code currently listed
on the applicants DD Form 214 is erroneous as his suspended
punishment under Article 15 expired before his separation date.
The applicants DD Form 214 will be administratively corrected
to reflect 3K. Although the applicant requests a code that
would allow for reenlistment, we believe that 3K,
Secretarial Authority, is appropriate. Although the 3K RE
code does not make the applicant immediately eligible for
reenlistment, it can be waived by the military services.
Therefore, other than the administrative correction cited above,
we find no basis to recommend granting any additional relief
sought in this application.
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of an 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-2014-02586 in Executive Session on 12 March 2015,
under the provisions of AFI 36-2603:
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2014-02586 was considered:
Exhibit A. DD Form 149, dated 19 June 2014, w/atchs.
Exhibit B. Applicants Available Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 3 November 2014.
Exhibit D. Letter, SAF/MRBR, dated 12 November 2014.
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