ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2011-05044

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
	
	HEARING: YES

APPLICANT REQUESTS THAT:

The Board reconsider her request to set aside her Article 15, dated 5 Apr 07, and all documentation related to the Article 15 proceedings be removed from the record.

Her rank be restored.

She be reimbursed for the pay she forfeited.

RESUME OF THE CASE:

On 16 Oct 12, the Board considered and denied a similar request finding that the applicant had provided insufficient evidence of an error or injustice to justify the requested relief.  In an advisory dated 8 Feb 12, AFLOA/JAJM stated the applicant did not make a compelling argument that the Board should overturn the commander’s original nonjudicial punishment decision on the basis of injustice.  In finding that the applicant did violate Article 92 of the UCMJ, the fact the commander determined the applicant did not commit the alleged offenses of adultery shows that he gave careful and thoughtful consideration to the evidence presented to include his finding she violated Article 92.  The commander’s ultimate decision on the Article 15 action was firmly based on the evidence of the case and the punishment was well within the limits of his authority and discretion.  AFLOA/JAJM recommended partial relief since the issuing commander found sufficient evidence did not exist to substantiate the three alleged violations of Article 134, UCMJ so the Board agreed with JAJM and recommended any mention of sexual impropriety or adultery be removed from the record. For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F and the facts below:  

While still on the deployment to Iraq, the applicant’s roommate and another female airman accused her of having improper sexual relationships with several different men. Both provided sworn statements to that effect with one statement accusing the applicant of actually engaging in sexual intercourse with the three named male individuals in her living quarters. 

These accusations led to the applicant being offered nonjudicial punishment under Article 15, UCMJ. After consulting counsel, she accepted the Article 15 and waived her right to demand trial by court-martial. She presented written statements in her own behalf and made a personal appearance before the commander. 

The Article 15 contained one violation of Article 92, UCMJ and three violations of Article 134, UCMJ: 

1.	She disobeyed an order violating the UCMJ, Article 92, by wrongfully allowing visitation of a member of the opposite gender into her sleeping quarters. 

2.	In violation of UCMJ, Article 134, she, between on or about 12 Jan 07 and on or about 31 Mar 07, did wrongfully have sexual intercourse with three different men who were not her husband. 
On 7 Apr 07, the commander determined the evidence did not support the three violations of Article 134 and lined out those allegations. The commander however, did find the violation of Article 92 as substantiated. The commander imposed punishment consisting of a reduction to the grade of TSgt effective with a new DOR of 7 Apr 07, forfeiture of $500 pay and a reprimand. The applicant appealed the decision and on 14 April 2007, the appellate authority denied her appeal. 

The applicant was removed from her tour early and was demobilized on 17 May 07. She continued to serve with the AFR until she voluntarily transferred to the Wisconsin Air National Guard (WIANG), date unknown. She served with the WIANG in the grade of technical sergeant until she applied for and was granted an early termination of her enlistment due to a dependent hardship related to the needs of a disabled child. 

On 26 Mar 10, she was honorably discharged from the WIANG.

On 4 Nov 17, the applicant requested reconsideration.  The applicant’s counsel again contends the Article 15 the applicant received was in retaliation for allegations of harassment by two Senior Noncommissioned Officers (SNCOs).  Counsel also contends the punishment the applicant received was disproportionate to the applicant’s alleged offense.  The commander pre-drafted a reprimand that imposed punishment based on assumed substantiation of four UCMJ violations, yet, when only one was actually substantiated, the commander did not commensurately adjust the punishment.  In fact, the record of NJP proceeding suggest the commander actually punished the applicant based on findings of adultery:  You willfully disobeyed General Order 1A by allowing a member of the opposite gender to enter your sleeping quarters and committing the act of adultery with three men who were not her husband. 

Counsel also argues that the plain language of General Order 1A indicates a person of the opposite gender is prohibited from visiting another person inside their sleeping quarters unless it is for an official purpose or as approved by base command. This meant a male cannot visit with a female inside that female's sleeping quarters for unofficial or unapproved purposes. Likewise, a woman was prohibited from visiting a man in his sleeping quarters for unofficial purposes. The predicate of the prohibition, meaning the person whose action would be scrutinized for a potential violation of the Order, is that of the person who visits another person of the opposite gender in her sleeping quarters. The Order does not address any person who is present if such a transgression occurs. When a rule such as an order is silent about a specific thing within that context, the reader must conclude the intention of the writer was only to address the actor whose action is prohibited.

In support of the applicant’s request for consideration, the applicant’s counsel provides General Orders, Senate correspondence, SAF/IG Report, AFRC/IG Report, Freedom of Information Act (FOIA) requests and various other documents associated with her requests.  The witness statement dated 29 Mar 07, states in part that in the beginning of March 07, at approximately 2245, the applicant returned to their living quarters with a man who entered the room with her to briefly set bags on her bed and immediately left the room.   

Amendment to USCENTAF General Order 1A, dated 10 Jan 05 states, “Paragraph 2.m. Visitation by persons of the opposite gender to an Air Force member's sleeping quarters is prohibited except for official purposes or as approved by the Air Expeditionary Wing Commander or Air Expeditionary Group Commander.”

According to General Order Number 1B, dated 1 Jun 07, paragraph 2n. states, “Visitation by persons to the sleeping quarters of a person of opposite gender is prohibited except for official purposes or as approved by the Commander or Vice Commander of the 9th Aerospace Expeditionary Task Force, the Air Expeditionary Wing Commander or Air Expeditionary Group Commander.”

The applicant’s complete submission is at Exhibit G.

THE BOARD CONCLUDES THAT:

1.   The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.   Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.    After careful consideration of the evidence of record and the applicant’s complete submission, we believe relief is warranted.  We note a previous panel reviewed this case and did not find the commander’s actions for her misconduct were unreasonable.  In cases of this type, which seek to overturn the action of a commander, it is the normal practice of the Board to accord great deference to a commander’s actions unless evidence of abuse of discretionary authority is presented or the Board is led to conclude the commander’s actions were arbitrary and capricious.  Although the Article 15 was proper at the time it was offered, given the commander determined post-offer that the evidence did not support the three violations of Article 134 and lined out those allegations, it is the Board’s opinion that the punishment the applicant received for violation of Article 92 should have been adjusted.  Even if we were to assume, arguendo, that a male did enter the applicant’s room as described by the witness, it is our opinion the applicant’s punishment was overly harsh and disproportionate to the misconduct.  Therefore, we believe the interests of justice can best be served by setting aside the Article 15, and all rights, privileges and property of which she may have been deprived be restored.  Accordingly, we recommend her record be corrected as indicated below.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, initiated on 2 Apr 07 and imposed on 7 Apr 07, be declared void and expunged from her records, and all rights, privileges and property of which she may have been deprived be restored.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2011-05044-3 in Executive Session on 25 Apr 18:

All members voted to correct the record.  The panel considered the following, in addition to the previous case file:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 26 Oct 12.
Exhibit G:	Application, DD Form 149, w/atchs, dated 4 Nov 17.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.