RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-01369

				COUNSEL:  

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

1.  The Letter of Reprimand (LOR) dated 22 January 2015 be removed from his records.

2.   His promotion to the grade of master sergeant (MSgt, E-7) be reinstated.

3.  The Enlisted Performance Report (EPR) rendered for the period 19 November 2013 through 30 November 2014 be reaccomplished.

APPLICANT CONTENDS THAT:

1.  His rights under Article 31, UCMJ were violated when a Noncommissioned Officer (NCO) questioned him about making sexual comments and statements to an airman in his unit. 

2.  The contested LOR is defective because it failed to address any of the relevant facts and circumstances of his alleged offenses or how he acted improperly, thereby preventing him from providing an adequate response.

3.  He was denied access to the evidence used as the basis for the contested LOR.

4.  The LOR should be rescinded and he be promoted to E-7.  The commander used the defective LOR as the basis for the non-recommendation to promote him.

5.  The actions by his commander to uphold the LOR, initiating an Unfavorable Information File (UIF), and not recommending him for promotion are in reprisal for his contending that the LOR was defective.  His LOR response was a protected communication and he should not have been subjected to his commander’s repeated forms of reprisal.

6.  He never received the required midterm feedback for the contested EPR.

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 technical sergeant (E-6).

On 22 January 2015, the applicant received an LOR for making derogatory comments of a sexual nature to an airman in his unit and an Unfavorable Information File was established.

The applicant was notified by his commander that his promotion to master sergeant (MSgt) was being placed in a withhold status until the pending administrative action was resolved.

On 20 February 2015, the applicant was notified that he was being nonrecommended for promotion to MSgt due to receiving an LOR for failure to fulfill NCO responsibilities. 

Regarding the applicant’s contention that his LOR response was a protected communication and he should not have been subjected to his commander’s repeated forms of reprisal by his upholding the LOR, initiating a UIF, and non-recommending him for promotion; an inquiry to the Secretary of the Air Force IG (SAF/IG) revealed the applicant has not filed an IG complaint in support of his contention of reprisal.  Additionally, there is no evidence submitted to indicate the applicant pursued his concerns of reprisal through his local IG complaint channels.

The applicant’s EPR profile as a TSgt is listed below:

			PERIOD ENDING		OVERALL EVALUATION

			  18 Nov 10			5
			  18 Nov 11			5
			  18 Nov 12			5
			  18 Nov 13			5
			* 30 Nov 14			4
			** 1 Jun 15			4
						New rating system
			  30 Nov 15			Met all expectations

*Contested Report
**Referral Report

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

AIR FORCE EVALUATION:

AFPC/JA recommends granting partial relief by removing the contested LOR and promotion nonrecommendation.

There is merit to the applicant’s contention that the contested LOR is defective and should be removed from his record.  
According to AFI 36-2907, Unfavorable Information File (UIF) Program, the requirements for written reprimands are that an LOR must describe what the member did or failed to do, citing specific instances and their dates.”  The original LOR offers little in the way of specificity other than for “making derogatory comments of a sexual nature toward Airmen in [applicant’s] duty section” on multiple occasions “prior to October 2014.”  This explanation contains neither specific instances nor approximate dates.  They concur with the applicant that the LOR dated 22 January 2014, should be withdrawn.  
Nevertheless, if sexual harassment did take place, it should be appropriately documented.  If the LOR is removed from his record, it should be done without prejudice meaning the applicant’s leadership would have the discretion to serve the applicant another LOR at a future date with greater specificity.  Because the LOR is defective, the applicant’s nonrecommendation for promotion is also defective – but this does not equate to reinstating the applicant’s promotion to E7 because it is properly in a withhold status at this time.  
The applicant alleges he was questioned without right advisement.  According to Article 31 of the UCMJ:  No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.  No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.
Article 31 violations only act to exclude evidence in court martial proceedings.  However, Article 31 has also been expanded to encompass the right to remain silent in administrative investigations and proceedings as well.  The applicant claims that this provision was violated when the SMSgt allegedly asked him whether or not he made one of the sexually harassing statements.  If this did occur as the applicant described, this would be technical violation of Article 31, UCMJ.  
Where there are Article 31 violations, the remedy is to exclude any statements or admissions made by the applicant in the consideration of evidence against him.  Here, there were no admissions made.  Rather, the applicant denied any memory of the statement.  As such, there would be no statements or admissions against the applicant to exclude.  This constitutes harmless error.
The applicant further claims that he heard that the commander considered his non-response to the SMSgt’s question to be some kind of admission of guilt and that it caused the commander to issue the LOR.  This is not a creditable allegation for two reasons.  First, this allegation ignores the presumption of regularity where we presume the commander issued the LOR for proper, rather than improper, reason.  Second, according to the applicant’s own evidence, there was already evidence of the applicant’s sexual harassment of unit members after an investigation.
The applicant alleged he was not provided the evidence that was the basis for the LOR.  AFI 36-2907 does not require that the subject of a LOR receive any written evidence to support the LOR.  Although not unheard of, it is very uncommon to receive such evidence in practice.  That supporting is not typically provided makes it all the more important that the wording of the LOR itself place the recipient on notice of the specific misconduct or deficiency.  When providing evidence is required as part of an action against a member, it is expressly spelled out by regulation.  See e.g., AFI 51-202, Nonjudicial Punishment, Paragraph 3.5 (requiring a commander to provide evidence to a member in nonjudicial punishment proceedings); AFI 36-3208, Paragraph 8.7.3 (allowing a member to view documentary evidence prior to an administrative discharge board).  There is no similar provision requiring evidence to be given to the member for a LOR.  As such, the contention that the applicant was denied due process in this respect is without merit.  Although not required, the lack of evidence provided to the applicant removed a potential “fix” to the fatally vague LOR.
Regarding the applicant’s request to reinstate his nonrecommendation for promotion, a nonrecommendation for promotion is used when an airman’s behavior does not adhere to established standards.  AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, states a non-recommendation for promotion for airmen in grades senior airman and above (for pin-on or testing) only applies for one promotion cycle at a time.  The commander’s notification memorandum must include reasons, dates, occurrences, and duration of the action. 
The reason cited for nonrecommendation of the applicant for promotion to E7 was the applicant was “served an LOR for failure to fulfill NCO responsibilities.”  The notification of nonrecommendation suffers from the same lack of specificity that the underlying LOR does.  Because the nonrecommendation relies on an LOR that is defective, it also should be withdrawn.  
Rescinding the nonrecommendation however, does not mean that the applicant should automatically be promoted to E7.  Prior to the nonrecommendation for promotion, the applicant was served a promotion withhold.  AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, a commander is required to withhold an airman's promotion if he or she is under investigation.  The commander may continue to withhold the promotion when the investigation or inquiry is complete but no determination has been made as to the action the military will take in response to the investigation.  Even if the nonrecommendation for promotion was rescinded, the promotion withhold would still be in effect and the applicant would still not be promoted to E-7.  
The applicant also contends his commander’s act of upholding a LOR, initiating a UIF, and not recommending him for promotion are in reprisal for his contending that his LOR was not technically correct.  In order to show reprisal, an applicant must show: (1) he made a protected communication; (2) he was subject to unfavorable personnel action; (3) the person taking the unfavorable personnel action knew about the protected communication; and (4) a preponderance of the evidence shows that the unfavorable personnel action would not have been taken if the protected communication had not been made.  The applicant has not made the fourth showing.
The applicant claims that the protected communication he engaged in was his LOR response.  In that LOR response, he claims that the LOR is defective.  This is a protected communication.  The applicant’s commander certainly knew about the communication and the applicant certainly suffered adverse personnel actions.  
The applicant has not shown that his LOR response caused the various unfavorable personnel actions complained of.  The commander had information that the applicant sexually harassed other unit members.  Faced with this information, he issued the applicant an LOR and put his promotion on hold.  Presumably, he would not have issued the LOR if he did believe that there was merit to the allegation and he would not have put his promotion on hold if he intended that the applicant be promoted to Master Sergeant.  Indeed, it would have been surprising if someone were promoted to become a senior NCO in today’s environment after a finding that he had engaged in sexual harassment.  The theory that he received a LOR/UIF and promotion nonrecommendation as reprisal for complaining about an LOR is simply not plausible.    
The applicant’s argument that his 23 January 2015 EPR should be reaccomplished is without merit.  The applicant received an EPR which rated him “above average.”  According to AFI 36-2406, Officer and Enlisted Evaluation Systems, the proper way to correct an allegedly incorrect EPR are that a member should submit an appeal to the Evaluation Reports Appeal Board (ERAB) before submitting a request to the AFBCMR.  The applicant has provided no evidence that he has done so.  Nor, has he provided any evidence that his EPR was affected by the contested LOR.  The only statement which supports the applicant’s contention that his EPR is incorrect is his statement that he had received a “5” on all of his other EPRs.    Nevertheless, according to AFI 36-2406, this is insufficient to void a prior EPR.  Instead, the applicant must clearly establish that his evaluator did not use the Air Force evaluation policy in effect at the time.  There has been no such showing.  
Finally, even if the applicant’s EPR was affected by the contested LOR, the EPR should still not be reaccomplished.  AFI 36-2406 states “for the ERAB to decide favorably to void the evaluation, the applicant must prove by a preponderance of the evidence that the behavior did not take place and the corrected action taken was officially set aside and not just removed or expired.”  The applicant has provided no evidence that he did not sexually harass members of his unit.
A complete copy of the AFPC/JA evaluation is at Exhibit C.

AFPC/DPSIDE recommends denial to reaccomplish the contested EPR noting the applicant has not exhausted his all his administrative remedies.  The AFBCMR will not consider a case until all avenues of administrative relief has been exhausted.  DPSIDE recommends the applicant submit an application for correction/removal of the EPR in question through the virtual Military Personnel Flight (V/MPF)/Evaluation Appeals.

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

AFPC/DPSIM recommends the contested LOR be rescinded and removed from the applicant’s unfavorable information file (UIF).  According to AFI 36-2907, Unfavorable Information File (UIF) Program, an LOR must describe “what the member did or failed to do, cite specific instances and their dates.”  The contested LOR offered little in the way of specificity other than for the statement “making derogatory comments of a sexual nature toward Airmen in [applicant’s] duty section” on multiple occasions “prior to October 2014.”  This explanation did not contain any specific instances or approximate dates.

A complete copy of the AFPC/DPSIM evaluation is at Exhibit E.

AFPC/DP3SP states they have no equity in the decision regarding removal of the contested LOR and only address the promotion portion of the applicant’s request. The applicant was considered and tentatively selected for promotion to master sergeant (MSgt) during the 2014 E7 cycle.  He received a promotion sequence number which would have incremented on 1 February 2015, however, his promotion was placed in withhold on 22 January 2015 pending an investigation.  On 20 February 2015, the applicant’s line number was removed when he was nonrecommended for promotion by his commander based on his receiving an LOR for failure to fulfill NCO responsibilities.

AFPC/DSIM and AFLOA/JAJM recommended the LOR be rescinded from the applicant’s records due to its non-specificity and the fact it contains no approximate dates of the alleged offenses.  JAJM also recommended removal of the promotion nonrecommendation since it was based on the defective LOR.  However, the applicant should not be automatically promoted to MSgt as his pending promotion was in a withhold status.  Should the applicant’s leadership serve him with another LOR with greater specificity, they could also non-recommend promotion.  

They propose that should the nonrecommendation for promotion be removed based on the removal of the LOR, they recommend the applicant’s promotion to MSgt be placed in withhold pending a promotion recommendation from his commander. 

A complete copy of the AFPC/DP3SP evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his requests, the applicant’s counsel states he concurs with the legal evaluation regarding removal of the LOR.  Notwithstanding, he believes the legal evaluation is incorrect when it states there is no authority requiring the subject of an investigation be given a copy of the investigative report after making numerous requests.  They are incorrect in asserting a promotion withhold action remains viable after a disciplinary action has been accomplished and a nonrecommendation for promotion has been made and the promotion has been stopped.  They are also incorrect when they state the applicant failed to show his "4" EPR was due to the faulty LOR.

According to guidelines in the Commander’s Directed Investigation Guide, an Air Force service member subject to an investigation has an absolute right to a copy of the investigation once the service member makes a request for the report.  It is uncontroverted the applicant made several requests for the investigative report but was never provided a copy.  In essence, he made the functional equivalent of a FOIA request and had an absolute right to receive a copy of the report.

The legal evaluation references a non-existent source in paragraph (d) (iv) of their opinion.  However, AFI 36-2502, Table 1.2, Note 3 clearly states that the promotion withhold is to be used for only 1 or 2 reasons, while an individual is under investigation, or when the investigation is complete but no action has yet to be taken.  The applicant is neither subject to an investigation nor is he awaiting a determination as to the action his commander will take. 

The applicant’s overall “4” EPR could realistically be due to nothing but the issuance of the LOR and accompanying UIF entry.  As stated earlier, the applicant has previously received a “5” rating on his EPRs.  It is only logical to conclude a subsequent “4” rating during the time period where he had an erroneous LOR and UIF, drove the “4” rating.

It was noted in the legal evaluation that an airman is required to prove by a preponderance of the evidence that the behavior that is the subject of the lower rating “did not take place.”  However, it is impossible for the applicant to prove that which he did not do when he was never given the report purporting to establish the wrongdoing.  The EPR must be reaccomplished in fairness to the applicant.

The applicant’s counsel’s complete response, with attachment, is at Exhibit H.

THE BOARD CONCLUDES THAT:

1.  The applicant has not 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 error or injustice regarding the applicant requests that his enlisted performance report (EPR) for the period ending 30 November 2014, be reaccomplished.  In this respect, we note this Board is the highest administrative level of appeal within the Air Force.  As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction.  The Air Force office of primary responsibility has reviewed this application and indicated there is an available avenue of administrative relief the applicant has not first pursued.  In view of this, we find this portion of the application is not ripe for adjudication at this level as there exists a subordinate level of appeal that has not first been depleted.  With respect to the portion of the applicant’s request for reinstatement of his promotion to the grade of E-7, we note the applicant was selected for promotion and received a promotion sequence number, however, his promotion was placed in a withhold status due to an investigation.  While we recommend the nonrecommendation for promotion be removed, we concur with AFPC/DPSIM that the applicant’s promotion to E-7 remain in a withhold status pending a promotion recommendation from his commander.  Therefore, in view of the above, we find no basis to recommend granting the relief sought in this portion of the application.

4.  Notwithstanding our findings above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice to warrant partial relief of the remainder of the applicant’s requests.  The applicant requests the 22 January 2015 Letter of Reprimand (LOR) he received be removed from his records, and his promotion to the grade of E-7 be reinstated.  After a thorough review of the evidence of record and the applicant’s complete submission, to include his counsel’s response, we believe the applicant is the victim of an injustice.  As such, we concur with the recommendation of AFPC/JA to remove the contested LOR and nonrecommendation for promotion.  We note the LOR and the nonrecommendation for promotion did not contain specific instances for the alleged offense or approximate dates as required by the governing instructions.  Therefore, we believe the contested LOR and nonrecommendation for promotion are defective and should be removed from the applicant’s record.  Accordingly, we recommend the applicant’s records be corrected as indicated below.  

5.  The applicant alleges he has been the victim of a reprisal.  By policy, reprisal complaints must be filed within 60 days of the alleged incident or discovery to facilitate the inspector general (IG) investigation.  As mentioned above, we note the applicant did not file an IG complaint that alleged reprisal and it appears no investigation for reprisal was done.  Nevertheless, based on the authority granted to this Board pursuant to Title 10 U.S.C. Section 1034, we reviewed the complete evidence of record to reach our own independent determination of whether reprisal occurred.  Based on our review, we do not conclude the applicant has been the victim of reprisal.  While the applicant’s LOR response was a protected communication, the applicant and counsel have failed to establish the actions by his commander to uphold the LOR, initiate a UIF, and non-recommend him for promotion are in reprisal for his making the protected communication.  Therefore, in the absence of persuasive evidence to the contrary, the Board does not find that the applicant has been the victim of reprisal pursuant to Title 10, U.S.C. Section 1034.

6.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that;

a.  The Letter of Reprimand, dated 22 January 2015, be removed from his record.

b.  The nonrecommendation for promotion dated 20 February 2015, be rescinded.

The following members of the Board considered AFBCMR Docket Number BC-2015-01369 in Executive Session on 23 June 2016, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01369 was considered:

	Exhibit A.  DD Form 149, dated 18 Mar 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/JA, dated 26 Sep 15.
	Exhibit D.  Memorandum, AFPC/DPSIDE, dated 11 Mar 16.
	Exhibit E.  Memorandum, AFPC/DPSIM, 16 Mar 16.
Exhibit F.  Memorandum, AFPC/DP3SP, dated 5 Apr 16.
Exhibit G.  Letter, SAF/MRBR, dated 12 Apr 16.
Exhibit H.  Letter, Applicant’s Counsel, dated 25 Apr 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.