RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04904 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. The Article 15, Nonjudicial Punishment (NJP), be removed from his master personnel records. 2. The referral Officer Performance Report (OPR) for the period of 15 Nov 10 through 16 Dec 11, be removed from his master personnel records. 3. The failure to be selected for promotion to Major be removed from his master personnel records and he be considered under a Special Selection Board (SSB). 4. By virtue of a separate DD Form 149 if the Article 15 and referral OPR are removed from his records, he requests the corresponding AF Form 709, Promotion Recommendation Forms (PRF), with “Do Not Promote This Board” recommendation be removed from his records. 5. By virtue of a separate DD Form 149, if the Article 15 and referral OPR are removed from his records, he also requests the letter he submitted to the promotion board to address his Article 15 and DNP be removed from his promotion file. APPLICANT CONTENDS THAT: He and his spouse met with his supervisor to request his Squadron Officer School (SOS) class, which was scheduled for 12 Sep 11 through 14 Oct 11, be rescheduled. The reason was because he and another service member were having a baby and it was due in October. The child was conceived while they were both deployed and both the applicant and other service member were married to other spouses at the time. He felt it was his duty to be present for the birth of his child. He supervisor informed him that he needed to discuss the matter with this detachment commander. Shortly thereafter, he met with his detachment commander to again request his SOS class be rescheduled. His detachment commander advised him if he made the request official there would be repercussions and he gave him the opportunity to pretend they never spoke. The applicant’s detachment commander contacted the Staff Judge Advocate (SJA) and there was a brief and incomplete investigation conducted into the circumstances surrounding the pregnancy. The case was ultimately referred to the Commander, Aeronautical System Center (ASC). The Commander, ASC offered the applicant an Article 15, which the applicant accepted. His relationship with the mother of the child was generally professional except for the sexual intercourse; which no one knew about until the applicant voluntarily disclosed months later. The relationship was at all times discreet and not prejudicial to the good order and discipline. Additionally, his performance during the deployment was outstanding as reflected by the award of the Joint Service Commendation Medal. Once he came forward, the resulting partial investigation seemed focused on finding someone who thought that their relationship appeared unprofessional, rather than determining if the relationship was in fact prejudicial to the unit. The command decided to conduct an informal partial investigation rather than appoint an officer to conduct a command directed investigation (CDI). If a CDI had been conducted in accordance with the Air Force CDI Guide the commander would have had an opportunity to make a fair disposition rather than an ill-informed disposition. Their relationship was not prejudicial to good order and discipline or service discrediting at the time it occurred and only turned into a violation when the applicant did the right thing by requesting to be present at his child’s birth. The Article 15 only considered the bias and false accounts of two misleading Memorandums for Records (MFRs) which made it appear that their relationship potentially was prejudicial to good order and disciple. Any kind of fair and impartial investigation would, at minimum, provided direct evidence to the contrary. It is unfair and inequitable that the applicant was punished with a career ending Article 15 while the other party was promoted to Major. During the charged timeframe, the other participant named in the adultery specification was equal in rank and grade, but senior in time-in-service to the applicant. However, has yet faced any Uniform Code of Military Justice (UCMJ) actions or adverse administrative actions as a result of her interactions with the applicant. In reality the other party’s command properly and fairly disposed of the allegations by taking no action. In addition, the Article 15 appeal was not properly reviewed by the appellate authority and was reviewed by the wrong appellate authority. Unfortunately, the appellate review authority never fully granted or denied the applicant’s appeal, nor did they make a determination as to whether or not the Article 15 should be filed into the applicants Officer Selection Record (OSR). Block 10 of the AF Form 3070C is blank; therefore, at a minimum, the Article 15 must be removed from his OSR because of failure to review that decision is a material error. The Article 15 and the decision to file it into his Officer Selection Record was unfair and inequitable based on the totality of the circumstances. His referral OPR should also be voided due to it being unfair and inequitable. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of Captain. On 25 Oct 11, the applicant accepted an Article 15 for committing adultery in violation Article 134 of the Uniform Code of Military Justice. He was Reprimanded and ordered to forfeit $2,594.00 a month for 2 months, with the portion in excess of $1,2997.00 pay per month suspended. On 20 Dec 11, the applicant’s Rater completed AF Form 707, Officer Performance Report (OPR). The Rater annotated in Section III, Performance Factors, that the applicant “Does Not Meet Standards” and the in Section IV, Rater Overall Assessment, stated “Self- exposed poor judgment/behavior--accepted responsibility-- highlights potential for improv’d future performance”. These marking and statement required the report to be referred to the applicant. On 20 Jan 12, the applicant responded to the Referral OPR. On 25 Jan 12, the applicant’s Additional Rater considered the applicant comments and concurred with the Rater’s assessment. The remaining relevant facts pertaining to this application are contained in the memoranda 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. This advisory will only address the portion of the applicant’s request to removal his NJP. NJP is authorized by Article 15, Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 815), and governed by the Manual for Courts- Martial (Part V) and AFI 51-502, Nonjudicial Punishment. This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. Service members first must be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander’s intent to impost punishment. The member may consult with a defense counsel to determine whether to accept the NJP or demand trial by court-martial. Accepting the proceedings is simply a choice of forum; it is not an admission of guilt. NJP is also not, when imposed, a criminal conviction. The applicant went to his leadership and admitted to having an extramarital affair that resulted in pregnancy. After being read his Article 31 rights, he again admitted to having an affair that resulted in a pregnancy. As a result of his admissions, a CDI was done to gather statements. From the investigation, it was discovered that the affair was with another Air Force Captain while deployed to Afghanistan. There was sufficient evidence to support an Article 15. On 14 Oct 11, the applicant was offered an Article 15 for adultery while deployed to Afghanistan, in violation Article 134, UCMJ and Violation of a lawful order while in Afghanistan, in violation of Article 90, UCMJ. After consulting with an attorney, the applicant accepted the Article 15, submitted a written statement and requested a personal appearance before his commander. In his response, the applicant took full responsibility for his actions and stated that they were “wrong and …inexcusable.” The applicant also admitted again to an extramarital affair which resulted in a pregnancy. On 25 Oct 11, the Commander, Aeronautical Systems Center (ASC) and General Court Martial Convening Authority (GCMCA), found that he committed the offense of adultery but did not violate an order and punished him with a reprimand and ordered him to forfeit $2,594.00 pay for 2 months, with the portion in excess of $1,2997.00 pay per month suspended. On 3 Nov 11, the Commander, ASC submitted an Memorandum for Record (MFR) to the applicant stating he forgot to initial a block on the Article 14 and he was considering placing the Article 15 in his Officer Selection Record. The MFR allowed the applicant to re- consider his appeal decision and granted him another 5 calendar days to make his decision. The applicant decided to appeal and submitted matters on his behalf. The appeal was denied by both the ASC/CC and AFMC/CC. While some of the MFRs provided by people may seem like attacks on the applicant’s character, they are not relevant in determining if the applicant committed adultery. Additionally, there are no procedural errors that prejudiced the applicant in any way. The applicant was afforded all of his due process rights and the Article 15 was properly executed. The punishment was well within the range of permissible punishments and the decision to put the Article 15 into his OSR was also solely with the discretion of the GCMCA. After carefully reviewing the record, no evidence was discovered of injustice, error or good cause to reverse or otherwise change the Commander’s decisions with respect to the Article 15. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice. This advisory will only address the portion of the applicant’s request to removal his evaluation. The applicant received a referral OPR for the period of 15 Nov 10 through 16 Dec 11 for failure to meet Air Force standards of professional conduct while deployed. Evaluators are obliged to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and potential. Only the evaluator knows how much an incident influenced the report. AFI 36-2406, Officer and Enlisted Evaluation System, states valuators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the Uniform Code of Military Justice (UCMJ), or when adverse actions such as Article 15, Letters of Reprimand, Admonishment, or Counseling, or placement on a Control Roster have been taken. In this case, the applicant accepted an Article 15 and his 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 OPR was inaccurate or unjust; therefore, they contend that the inclusion of the referral comment on the OPR 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 fair consideration in accordance with the established intent of the current Officer and Enlisted Evaluation System in place. The applicant received an Article 15 for action while deployed and his commander deemed this a serious enough offense and proceeded with NJP as it is completely within his/her authority to do so. In regards to the allegations made by the applicant, the applicant’s rating chain were in the best position to evaluate duty performance, on and off-duty, during the contested rating period, and were specifically assigned this responsibility by Air Force officials. The Air Force places great trust in this process, and only by a preponderance of evidence provided by the applicant could a case be made that in this specific circumstance that trust was violated. The applicant does not in this case provide any evidence that would substantiate his assertion that the evidence used to support the NJP against him was insufficient. Therefore, they contend that the inclusion of the referral comments on the OPR were appropriate and within the evaluators authority to document given the incidents in question. 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 members of the rating chain--not only to support, but also for clarification and explanation. The applicant failed to provide any information or support from any rating official on the contested OPR. The burden of proof is on the applicant and in this case he has not substantiated that the contested OPR was not rendered in good faith by all evaluators based on the knowledge available at this time. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. AFPC/DPSOO recommends denial indicating there is no evidence of an error or an injustice. This advisory will only address the SSB consideration. The applicant was non-selection to the grade of major by the CY14C, 1 Dec 14 (P0414C) Major Central Selection Board (CSB). He is also meeting the CY15C, 21 Sep 15 (P0415C) Major CSB. Upon review of AFLOA/JAJM’s recommendation to deny removing his Article 15 and AFPC/DPSID’s recommendation to removing the OPR closing out 16 Dec 11, this advisor recommends denial for a SSB consideration. A complete copy of the AFPC/DPSOO evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant’s contends the advisory opinions wrongly conclude the applicant informed his command he was having a child out of wedlock as an admission of adultery. While the applicant’s admission does constitute an admission of breaking martial vows, it is not an admission to the military punitive offense of adultery in violation of the Uniform Code of Military (UCMJ), Article 134. NJP may be imposed for acts or omissions that are minor offenses under the punitive articles of the UCMJ. “Not every act of adultery constitutes an offense under the UCMJ. To constitute an offense, the government must prove beyond a reasonable doubt that the accused’s adultery was directly prejudicial to good order or discipline or service discrediting.” As the AFBCMR is probably aware DA PAM 27-9 is the Military Benchmark which is used by all services including the Air Force and as such, they argue that the applicant’s actions were neither prejudicial to good order or discipline nor service discrediting. The Charge the Commander found the applicant guilty of at the Article 15 failed to allege the terminal element as required under the law. US v Humphries, 79 MJ 209 (CAAF), US v Fosler, 70 MJ 225, (CAAF 2011). The charge at the Article 15 alleged, “You a married man, did at or near Camp Leatherneck, Afghanistan, on divers occasions between on or about 24 Aug 10, and on or about 11 Mar 11, wrongfully has sexual intercourse with then …, a married woman, not your wife.” As the Court of Appeals of the Armed Forces (CAAF) held in Humphries, the failure to allege the terminal element (either conduct prejudicial to good order and discipline or service discrediting conduct or both) is plain error and requires dismissal of any adultery conviction. Additionally, the Commander as the Article 15 would be unaware that the terminal element must be proven by the evidence when it is not part of the charge as required by law. Looking at the improper charge, one would conclude that the evidence that the applicant had sexual intercourse was enough for a guilty finding. This error has continued from the beginning of this case (the charge itself) through the advisory opinions. This error has materially prejudiced the applicant’s substantial rights and has resulted in punishment being wrongly imposed. The advisory opinions fail to address the obvious inequity between the actions taken against the applicant and the actions taken or more accurately not taken against the other service member involved in the relationship. There were only two differences between these two Air Force officers who engaged in sexual intercourse which resulted in a child. The mother is a female and was senior at the time. Career ending action is taken against the male junior officer and the female senior officer is promoted. Obviously, no argument can be made to justify such unfair and unequal treatment so the advisory opinions ignore this unfairness. The applicant additionally requested the referral OPR which was based on the Article 15 be removed in the event his request for removal of the Article 15 is granted. The advisory comments note the applicant has not filed an appeal thought the Evaluation Reports Appeal Board (ERAB). They believe the advisory opinion finding the applicant has failed to exhaust all administrative remedies is incorrect. There is no applicable request for him to the ERAB to make at this time. All requests pertaining to the applicant’s OPR and SSB consideration are secondary and contingent on approval of the Article 15 removal. The AFBCMR alone has jurisdiction for the request for removal of the Article 15. A complete copy of the Applicant’s Letter is at Exhibit G. 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, to include his rebuttal comments, in judging the merits of the case and the applicant’s contentions are duly noted; however, we do not find these assertions, in and of themselves, sufficiently convincing to override the evidence of record or the rationale provided by the Air Force Legal Operations Agency. We are not persuaded that the actions taken by his commander were beyond his scope of authority, inappropriate, or arbitrary and capricious. While some of the MFRs provided may seem like attacks on the applicant’s character, they are not relevant in determining if the applicant committed adultery, as he brought forth this information to his chain of command and clearly admitted to that fact again in his Article 15 rebuttal. Additionally, there are no procedural errors that prejudiced the applicant in any way. The applicant was afforded all of his due process rights and the Article 15 was properly executed. Therefore, we do not find a basis to recommend setting aside the Article 15 and removing it from his records. In view of this determination, there exists no basis upon which to recommend the applicant for consideration for promotion under an SSB, or any of his subsequent requests pertaining to (potential) SSB actions. 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-2014-04904 in Executive Session on 17 Nov 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR BC-2014- 04904 was considered: Exhibit A. DD Form 149, dated 14 Nov 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 20 Jan 15. Exhibit D. Memorandum, AFPC/DPSID, dated 14 Sep 15. Exhibit E. Memorandum, AFPC/DPSOO, dated 18 Sep 15. Exhibit F. Letter, SAF/MRBR, dated 15 Oct 15. Exhibit G. Letter, Applicant’s Counsel, dated 27 Oct 15.