RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-02657

						COUNSEL: 

						HEARING DESIRED: YES 



APPLICANT REQUESTS THAT:

1.  He be reinstated into the Air Force in the pay grade of Senior 
Airman (SrA) effective 2 Aug 13, with immediate promotion to the 
grade of Staff Sergeant (SSgt) with back pay and active duty 
benefits.

3.  His Non-judicial Punishment (NJP) under Article 15 of the 
Uniform Code of Military Justice (UCMJ) imposed on 28 Jun 13, and 
his Letter of Reprimand (LOR), dated 21 Jun 12, be declared void 
and removed from his records.

4.  In the alternative, his DD Form 214, Certificate of Release or 
Discharge from Active Duty, Block 24, Character of Service be 
changed as noted:

      From “General (Under Honorable Conditions)” to “Honorable;”
      
      Separation Code “JKN” which denotes “Misconduct (Minor 
Infractions)” be changed to “KBK;” which denotes “Expiration of 
Term of Service;”
      
      His Reentry (RE) Code of “2B which denotes separated with a 
general or under other than honorable conditions discharge be 
changed to “1;” which denotes “Eligible to Reenlist but Elects 
Separation and; 
      
      He receive back pay from 2 Aug 13 to his contractual end of 
obligated service date of 5 Jan 15.


APPLICANT CONTENDS THAT:

In a 12-page legal brief, through counsel, the applicant makes the 
following contentions:

He received a LOR based on unreliable information for three 
separate incidents.

He was found guilty at an Article 15 NJP hearing despite the state 
of North Carolina dismissing the charges and expunging the arrest 
from his record.

He was erroneously discharged from the Air Force due to minor 
disciplinary infractions.

In support of his requests, the applicant provides copies of his 
DD Form 214, AF Form 910, Enlisted Performance Report (AB thru 
TSgt); AF Form 3070A, Record of NJP Proceedings (AB thru TSgt); 
memorandums, AOC-CR-264, Petition and Order of Expunction Under 
G.S.15A-145(a) and G.S.15a-46, and various other documents 
associated with his requests. 

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


STATEMENT OF FACTS:

On 6 Jan 09, the applicant enlisted in the Regular Air Force.

According to a letter dated 17 Jul 13, on or about 6 Jun 
12 through 12 Jun 12, the applicant failed to follow team 
accountability instructions by not signing the unit in/out board; 
reported to a commander’s debrief in the wrong uniform; and missed 
movement for a joint training exercise.  For this misconduct, he 
received a LOR.  

According to a letter dated 17 Jul 13, on or about 3 Jun 13, the 
applicant assaulted a police officer, who then was known by him to 
be a person in the execution of civilian law enforcement duties, 
by approaching him from behind and, with an open hand, pushing him 
to the ground.  In addition, he was drunk and disorderly, which 
conduct was of a nature to bring discredit upon the armed forces.  
For this misconduct, he received NJP under Article 15, UCMJ, 
reduction in grade to airman first class, forfeiture of 
$1,007.00 pay per month for two months, 30 days extra duty and a 
reprimand.  

In a letter dated 11 Jul 13, the applicant was notified of his 
commander’s intent to recommend his discharge from the Air Force 
for Misconduct:  Minor Disciplinary Infractions under the 
provision of AFI 36-3208, Administrative Separation of Airmen.  
Before recommending discharge, the commander noted the applicant 
was given multiple opportunities to correct his behavior; he had 
not taken the administrative actions to heart and continued to 
fall below the Air Force standard of acceptable behavior; 
therefore, he did not recommend probation and rehabilitation.  The 
applicant acknowledged receipt of the notification of discharge.  
After consulting with legal counsel, the applicant elected to 
submit a statement in his own behalf.

According to the DD Form 214, on 2 Aug 13, the applicant was 
discharged for Misconduct (Minor Infractions) with service 
characterized as general (under honorable conditions) in the grade 
of airman first class.  He served 4 years, 6 months and 27 days of 
total active service.


AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial of the applicant’s requests to change 
his character of service, separation code and narrative reason for 
separation.  Based on a review of the applicant’s master personnel 
records, the discharge to include the separation code, narrative 
reason for separation, and character of service was consistent 
with the procedural and substantive requirements of the discharge 
instruction and was within the discretion of the discharge 
authority.  In addition, there was no evidence of any errors or 
injustices in the discharge processing.  In accordance with AFI 
36-3208, paragraph 1.18.2, a general discharge is appropriate when 
“significant negative aspects of the airman’s conduct or 
performance of duty outweighs positive aspects of the airman’s 
military record.”  The discharge authority concluded that the 
applicant’s misconduct outweighed the positive aspects of his 
military service and directed a general discharge.

The complete DPSOR evaluation is at Exhibit B.

AFPC/DPSOA recommends denial of the applicant’s requests to change 
his RE code to 1# indicating the applicant does not provide any 
proof of an error or injustice in reference to his RE code 2B, but 
states he was unjustly discharged.  

RE code 2B is required based on the applicant’s involuntary 
discharge with a general (under honorable conditions) character of 
service.  On 1 Aug 14, AFPC/DPSOR validated the applicant’s 
discharge processing and recommended denial.  The applicant is 
specifically asking for a 1# RE code; however, per AFI 36-2606, 
Reenlistments in the United States Air Force, table 5.1, the only 
1# RE code a Regular component member can separate with is RE code 
1J, which denotes “eligible to reenlist, but elects separation;” 
the applicant was not eligible to reenlist and did not elect to 
separate but was involuntary separated which is more in line with 
being denied reenlistment by his commander. 

The complete DPSOA evaluation is at Exhibit C.

AFPC/DPSOE has no equity in the decision regarding removal of the 
NJP and therefore, defers to AFLOA/JAJMs recommendation.  However, 
should the Article 15 be removed, the applicant’s grade would be 
SrA with a date of rank of 6 Jul 11.  

If the applicant is returned to active duty in the grade of SrA 
DPSOE recommends denial of the applicant’s requests for immediate 
promotion to SSgt indicating he was never selected for promotion 
prior to discharge and Air Force policy does not allow for 
automatic promotion.  

The complete DPSOE evaluation is at Exhibit D.

AFLOA/JAJM recommends denial of the applicant’s requests to void 
and remove his NJP.  The applicant does not make a compelling 
argument that the Board should overturn the commander’s original 
NJP decision on the basis of injustice.  The applicant argues that 
there is not enough evidence to support a finding that he 
committed the offenses.  His basis for the argument is that the 
local authorities dismissed the assault charge and never charged 
him with drunk and disorderly.  As standards of proof and 
considerations for good order and discipline in the military are 
different from those in a civilian setting, the argument that it 
was dismissed in civilian court does not mean that there was not 
enough evidence or reason to offer NJP.  The applicant had the 
opportunity to turn down the NJP and demand a trial by court-
martial, but he accepted the NJP forum and did not appeal the 
commander’s findings.  In addition, the punishment decision was 
well within the limits of the commander’s authority and 
discretion.  The NJP action by the applicant’s leadership was 
fitting, appropriate, and just.  

The applicant was provided due process and provided an opportunity 
to consult with counsel before accepting the NJP.  After 
consulting with counsel, he accepted the NJP and submitted a 
letter to his commander.  After carefully reviewing the record, 
JAJM finds no clear injustice, error or good cause to reverse or 
otherwise change the commander’s decisions with respect to the 
NJP.

The complete JAJM evaluation is at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 30 Apr 15, 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 
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-2014-02657 in Executive Session on 9 Jun 15, under the 
provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining AFBCMR Docket Number 
BC-2014-02657 was considered:

	Exhibit A.  DD Form 149, dated 23 Jun 14, w/atchs.
	Exhibit B.  Letter, AFPC/DPSOR, dated 1 Aug 14.
	Exhibit C.  Letter, AFPC/DPSOA, dated 25 Sep 14.
	Exhibit D.  Letter, AFPC/DPSOE, dated 16 Oct 14.
      Exhibit E.  Letter, AFLOA/JAJM, dated 4 Mar 15.
      Exhibit F.  Letter, SAF/MRBR, dated 30 Apr 15.