RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2015-05122
		
XXXXXXXXXXXXXXXXXXXX			COUNSEL:  NONE

							HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

1.  The nonjudicial punishment (NJP), imposed on 9 September 2013, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), be set aside and any references be removed from his Officer Selection Record (OSR) and Master Personnel Record (MPR).

2.  The referral Officer Performance Report (OPR) for the period 16 October 2012 through 18 December 2013 be removed from his records. (Administratively Corrected)

APPLICANT CONTENDS THAT:

A Board of Inquiry (BOI) determined he did not commit the offenses for which he received NJP; therefore, the NJP and associated documents should be removed from his records.  However, the commander denied his request to set aside the NJP.

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

STATEMENT OF FACTS:

The applicant initially enlisted the Regular Air Force on 15 July 1998, and was progressively promoted to the grade of captain (O-3).  He continues to serve on active duty.

On 9 August 2013, the applicant was offered NJP pursuant to Article 15, UCMJ for three specifications of committing abusive sexual contact upon three female commissioned officers, in violation of Article 120, UCMJ.

On 20 August 2013, the applicant consulted with legal counsel before waiving his right to a trial by court-martial.  He submitted written matters for his commander’s consideration and requested a personal appearance before him.  After consideration of the matters presented, the applicant’s commander found he did commit the offenses alleged and as punishment imposed a forfeiture of $1500 pay per month for two months and a reprimand.
On 16 September 2013, the applicant appealed the NJP and requested his commander find him guilty of assault and battery, rather than abusive sexual contact, based on the evidence presented.  He also requested his commander not place the NJP in his OSR.

On 4 October 2013, his commander granted his appeal in part by suspending forfeiture of pay for one month.

On 23 October 2013, the servicing wing Staff Judge Advocate found the NJP legally sufficient.

According to a memorandum from the BOI President, dated 12 January 2015, on 27 August 2014, the BOI appointed by the Show Cause Authority was convened to receive evidence and determine whether to retain the applicant in the Air Force based upon the Statement of Reasons, which alleged the applicant was subject to discharge for sexual assault.

On 28 August 2014, after carefully considering all the evidence and in accordance with the legal advisor's instructions, the BOI determined by a majority of concurring voting members that the applicant did not commit one or more of the allegations set forth in the Statement of Reasons and therefore, recommended he be retained.

In a memorandum dated 7 October 2015, the applicant informed his commander of the BOI findings and requested the NJP imposed on 9 September 2013, be set aside.

On 27 October 2015, the commander informed the applicant’s Area Defense Counsel there was no clear injustice and denied the applicant’s request to set aside the NJP.

AF Form 77, Letter of Evaluation, committed to the Automated Records Management System on 26 May 2017, indicates the applicant was not rated for the period 16 October 2012 through 18 December 2013, and that the OPR for that period was removed by order of the Chief of Staff, United States Air Force.

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, D, and G.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends granting the applicant’s request to remove the NJP from his records, indicating there is evidence of an error or injustice.  The applicant was offered NJP for three specifications of committing abusive sexual contact upon three female commissioned officers, in violation of Article 120, UCMJ.  The charge and specifications resulted from the applicant’s conduct at a social gathering when he allegedly improperly touched the buttocks of three female officers.  After consulting with counsel, the applicant waived his right to be tried by a court-martial and elected to accept NJP.  He submitted written matters for his commander’s consideration and requested a personal appearance before him.  In his written submission, the applicant apologized and accepted responsibility for his actions, but maintained that he did not commit sexual assault.  He explained that his judgment was impaired by alcohol.  His military defense counsel also submitted written matters for the commander’s consideration.  Counsel argued that there was insufficient evidence to support the charge and specifications, as there was no evidence the applicant had the requisite intent to abuse, humiliate or degrade the alleged victims.  The military defense counsel also alleged that investigators from the Air Force Office of Special Investigations improperly conducted a group interview, which tainted the witnesses, and failed to obtain exculpatory statements from other witnesses.  Upon consideration of all matters presented by the applicant, his commander found that he committed the offenses and imposed punishment consisting of forfeiture of $1500 pay per month for two months and a reprimand.  The applicant appealed the NJP and requested his commander find him guilty of assault and battery, instead of abusive sexual contact based on the evidence presented.  He also requested that his commander not place the NJP in his OSR.  The applicant’s commander granted his appeal in part by suspending the forfeiture of pay for one month.  The servicing Staff Judge Advocate reviewed the NJP and found it to be legally sufficient.

On 27 August 2014, a BOI was convened to determine whether the applicant should be retained in the Air Force based on the NJP he received.  The BOI considered the evidence reviewed by the applicant’s commander, which included a Report of Investigation, as well as the testimony of two victims and written input from all three victims.  Based on that evidence, the BOI determined that the preponderance of the evidence did not support that the applicant committed the alleged offenses.  On 28 August 2014, the BOI found that the applicant did not commit the alleged offenses and recommended he be retained.  On 7 October 2015, based on the BOI findings, the applicant requested the NJP be set aside.  The applicant and his counsel argued that the preponderance of the evidence standard used by the BOI is lower than the beyond a reasonable doubt standard applied to courts-martial and NJP.  AFI 51-202, Nonjudicial Punishment, which addresses the standard of proof applicable to NJP provides: While no specific standard of proof applies to NJP proceedings including appeals, commanders should recognize that a member is entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt of each element of every offense by legal and competent evidence is a prerequisite to conviction.  Whether such proof is available should be considered before initiating action under Article 15, UCMJ.  If such proof is lacking, NJP action is usually not advisable.  On 27 October 2015, the applicant’s commander denied his request to set aside the NJP, finding that no clear injustice had resulted in the imposition of NJP.
The NJP imposed on the applicant is substantially undermined given the findings of the BOI, which determined he did not commit the alleged offenses based on a preponderance of the evidence.  While the applicant’s commander did not violate Article 15 or abuse his discretionary authority by denying the applicant’s request to set aside the NJP; based upon the BOI’s findings it would be contradictory to suggest, under the circumstances, that NJP could be sustained where even a Letter of Reprimand would not be legally supportable.

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

AFPC/DPS2PE recommends denial of removing the applicant’s OPR.  The applicant has not exhausted all available avenues of administrative relief prior to seeking correction of his military record before the Air Force Board for Correction of Military Records.  The Board is the highest level of administrative appeal within the Department of the Air Force and will not consider a case until all avenues of administrative relief have been exhausted.  The applicant should submit an AF Form 948, Application for Correction/Removal of Evaluation Reports, with all required supporting documentation, to the Evaluation Reports Appeal Board (ERAB) through the virtual Military Personnel Flight.  If the administrative appeal is not successful, the applicant may resubmit the DD Form 149, Application for Correction of Military Record, and the results of the ERAB administrative review for processing to the AFBCMR.

A complete copy of the AFPC/DPS2PE evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The OPR states the Board will not consider a case until all avenues of administrative relief have been exhausted.  However, a favorable decision from the ERAB requires he 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.  While the NJP action imposed on the applicant still stands, any appeal to the ERAB would be futile.  It would be illogical to require the applicant to purse an administrative remedy through the ERAB, when the ERAB’s own charter denies him any avenue for effective relief.

The applicant’s complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DP2SPE has now determined no action is required regarding the applicant’s request to remove his referral OPR.  The ERAB determined the applicant's OPR, rendered for the period of 16 October 2012 through 18 December 2013 should be removed.

A complete copy of the AFPC/DPS2PE evaluation is at Exhibit G.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 11 July 2017, for review and comment within 30 days (Exhibit H).  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.  Sufficient 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 and agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  Furthermore, while the OPR did not specifically address, nor provide an advisory pertaining to the removal of any references relating to the NJP from the applicant’s records, our recommendation includes the removal of all references relating to the NJP from the applicant’s records.  Therefore, we recommend the applicant’s records be corrected as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice, imposed on 9 September 2013, be declared void, all documents and references pertaining thereto be declared void and removed from his records, and all rights, privileges and property of which he may have been deprived be restored.

The following members of the Board considered AFBCMR Docket Number BC-2015-05122 in Executive Session on 15 August 2017, 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-2015-05122 was considered:

Exhibit A.  DD Form 149, dated 25 November 2016, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFLOA/JAJM, dated 13 June 2016.
Exhibit D.  Memorandum, AFPC/ DPS2PE, dated 13 June 2016.
Exhibit E.  Letter, AFBCMR, dated 6 September 2016.
Exhibit F.  Letter, Counsel, dated 20 September 2016.
Exhibit G.  Memorandum, AFPC/DPS2PE, dated 8 June 2017.
Exhibit H.  Letter, AFBCMR, dated 11 July 2017.

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.