RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03825

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His promotion selection grade of master sergeant (E-7) be reinstated and his military records corrected to reflect he retired in the grade of E-7.  

APPLICANT CONTENDS THAT:

His earned promotion to E-7 should not have been taken away as the result of a second Commander Directed Investigation (CDI), which had findings exactly the same as the first CDI.  He received unjust punishment based on two separate investigations conducted regarding the same misconduct, each of which resulted in different actions against him.  There was no new information uncovered after the second CDI regarding the same allegations, but his home station commander dealt a more severe punishment, red-lining his promotion to E-7 even though the transgressions were already dealt with and punishment (Letter of Reprimand (LOR)) was handed out by the on scene commander.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 25 Mar 98.

On 3 Jun 14, the applicant was rendered a referral Enlisted Performance Report (EPR) covering the time period of 25 May 13 to 24 May 14, for a “does not meet” standards rating for receiving an Article 15/UIF for maltreatment of Airman and disparaging remarks, undermined effectiveness of Air Force mission.  

On 25 Feb 15, he was furnished an honorable discharge, permanently disability retired effective 26 Feb 15, and was credited with sixteen years, eleven months, and one day of active service.   

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 and D.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice.  Nonjudicial punishment (NJP) is authorized by Article 15, Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 815).  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  

While the applicant was deployed to Al Udeid Air Base, Qatar in 2013, a subordinate female E-3 alleged that he made inappropriate sexual comments to her and levied unjust adverse personnel actions against her.  A CDI was initiated by the applicant’s deployed commander and was conducted at Al Udeid Air Base from 25 – 28 Jul 13.  Two of the five allegations of maltreatment were substantiated by the investigating officer.  The applicant’s deployed commander removed the applicant from his leadership position within the squadron and issued him an LOR for making “degrading comments,” “inappropriate innuendos,” and “verbally degrading” statements.  His deployed commander also initiated an Unfavorable Information File (UIF) on the applicant and placed the LOR therein.  

In Sep 13, after the CDI closed, Security Forces Office of Investigation (SFOI) at Al Udeid Air Base initiated an independent investigation based upon continued complaints about enlisted leadership within the applicant’s squadron.  At some point, an allegation of sexual assault by the applicant was levied by one of the witnesses being interviewed by SFOI.  The Air Force Office of Special Investigations (AFOSI) began an investigation into that allegation as Air Force policy requires all sexual assault allegations to be investigated by AFOSI.  Though fully investigated, the allegations of sexual assault by the applicant were ultimately not pursued at court-martial for various reasons, including an expressed desire by the alleged victim not to participate in a potential prosecution of the applicant.

Contrary to the applicant’s assertion that nothing new came of the investigations that succeeded the CDI, the quantity and quality of evidence alleging misconduct by him increased as a result of the SFOI and AFOSI investigations.  The reports of investigation were published to the applicant’s home station commander at Fairchild AFB in early 2014.  On 24 Feb 14, after reviewing the evidence and consulting with the servicing Staff Judge Advocate (SJA), the applicant’s commander offered him NJP for two specifications of maltreatment (by making inappropriate sexual comments to subordinates), in violation of Article 93, UCMJ, and one specification of conduct prejudicial to good order and discipline (by making an inappropriate sexual comment to a group of Airmen), in violation of Article 134, UCMJ (NJP package attached to JAJM Advisory).  On 3 Mar 14, after consulting with a military defense counsel, the applicant waived his right to trial by court martial and submitted written matters for the commander’s consideration.
After careful consideration of the evidence and the matters submitted by the applicant and his counsel, the commander found that the applicant did commit the alleged misconduct.  Though the commander could have taken rank, he only imposed a suspended reduction in rank (from E-6 to E-5) and a reprimand.  On 17 Mar 14, the applicant acknowledged the commander’s punishment and chose not to appeal the action.  A legal review of the NJP was performed by the servicing SJA on 17 Mar 14, and a second legal review was performed by the General Court-Martial Convening Authority’s SJA on 21 Mar 14.  Both reviews found the action to be legally sufficient.  There is no legal impediment to offering NJP for misconduct that was previously investigated, nor for misconduct which resulted in lessor forms of administrative action.  Part V of the Manual for Courts-Martial prohibits the use of multiple NJP to address misconduct arising from a single course of conduct.  AFLOA/JAJM contacted the applicant’s home station legal office, and was told that the LOR the applicant had previously received was removed from his UIF before NJP was offered.  However, even if the LOR had not been rescinded, the applicant’s home station commander could offer him NJP for misconduct which had previously been investigated and resulted in an LOR.  The simple fact is that the applicant’s home station commander had more evidence upon which to base his decision as to what type of action to administer.  

The applicant was ineligible to promote during the pendency of the criminal investigation into his misconduct pursuant to Item 5, Table 1.2 of AFI 36-2502, Enlisted Airman Promotion/Demotion Programs.  His promotion sequence number to E-7 was then cancelled pursuant to Item 19, Table 1.1 of AFI 36-2502, when he received a suspended reduction in grade to E-5 via NJP.  The applicant’s commander then affirmatively declined to take action to reinstate his projected promotion eligibility, which he could ostensibly have done, pursuant to paragraph 4.3 of the same AFI.  

The resulting impact of the NJP (non-promotion to the selected grade of E-7) was a collateral consequence of the applicant’s misconduct and the punishment imposed.  NJP was within the commander’s authority and the applicant was afforded all procedural due process rights during the proceedings.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DP3SP defers to the AFLOA/JAJM recommendation to deny the requested relief regarding restoration of rank.  Should the Board decide to remove the Article 15 from the applicant’s records, it would not automatically result in his promotion to E-7, as there is no guarantee his commander would have recommended him for promotion as required by AFI 36-2502, Table 2.1 and paragraph 4.2.4.4.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 12 Apr 16 for review and comment 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 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 opinion and recommendation of AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  The preponderance of evidence presented convinces us that the applicant’s record should not be changed.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2015-03825 in Executive Session on 21 Jul 16 under the provisions of AFI 36-2603:
	
The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03825 was considered:

	Exhibit A.  DD Form 149, dated 24 Aug 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 10 Mar 16,			  		  w/atch.
	Exhibit D.  Memorandum, AFPC/DP3SP, dated 7 Apr 16.
	Exhibit E.  Letter, SAF/MRBR, dated 12 Apr 16.