RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01169

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Article 15 punishment be mitigated.  

He be reinstated to active duty in the grade of Technical Sergeant (TSgt, E-6).  

APPLICANT CONTENDS THAT:

His commander did not consider all the facts in regards to his Article 15 for indecent exposure and an unprofessional relationship.  The punishment was extremely harsh and unjust given his distinguished record of service.  This was his first disciplinary action in over 14 years of service and as a result of his Article 15, he was involuntarily discharged due to High Year Tenure (HYT).  The Article 15 should not have been career ending.

He was friends with a Senior Noncommissioned Officer (SNCO) who was the section chief of the customer service section in his squadron.  He decided to make their relationship professional rather than personal.  During this time, the Airman First Class (A1C, E-3) arrived at Nellis AFB, NV and started work in the customer service section.  He began a personal relationship with the A1C but they were always professional at work.  The SNCO found out about their relationship and encouraged the A1C to terminate the relationship.  He had sent the A1C a video of himself without a shirt.  The A1C told the SNCO about the video he had sent even though she no longer wanted to be in a relationship with him.   That same day he learned the A1C was in a relationship with a married man.  

He was selected for promotion to the grade of Master Sergeant (MSgt, E-7) during this time.  He was called into the first sergeant’s office and given a no contact order and was asked to provide a statement to the Air Force Office of Special Investigations (AFOSI).  He was told he was being charged with indecent exposure and an unprofessional relationship.  He was shocked and did not know what the complaint was.  His new commander determined to proceed with offering court-martial or Nonjudicial Punishment (NJP).  The A1C was pushed into making a statement and was told he had taken advantage of her.  His Area Defense Counsel (ADC) encouraged him to submit a statement in his own behalf which resulted in him submitting self-incriminating information about the video.  His commander took his written statement as an admission of guilt.  His punishment was a reprimand, removal from the MSgt promotion list and reduction in grade to Staff Sergeant (SSgt, E-5), which placed him in the window for HYT.

His appeal of the Article 15 punishment was denied by the Mission Support Group Commander (MSG/CC) without explanation.  He spoke to the Inspector General (IG) who was sympathetic and encouraged him to speak with his commander.  On 13 November 2013, his commander told him he understood he had been selected for promotion to the grade of MSgt but based on the statements he reviewed and his submission, he determined the punishment was appropriate.  He stated he had investigated the SNCO and knew her actions were out of jealousy but that the demotion was warranted because the A1C was young and because of the indecent picture.  He explained the picture was a screen shot from an Instagram post and that he had not sent it.  His commander was also not aware the A1C was 24 years old.  

The A1C who resided in the dormitory became pregnant by the dorm manager who was married.  Leadership was upset that SNCOs and NCOs had not reported the rumors.  He explained to his superintendent he did not report it because his leadership was not fond of him and that it would appear as if he was reprising against the A1C.  After an investigation, the dorm manager received only a Letter of Reprimand (LOR), an Unfavorable Information File (UIF) and was reassigned to another duty section.  This caused an uproar and perception that adultery was acceptable.  

The A1C contacted him and stated she disagreed with the actions of leadership, that the situation had been blown out of proportion and that the first sergeant’s close relationship with the ADC played a part in his punishment.  She stated she would write a letter to the commander but was afraid of reprisal.

The Equal Employment Office (EEO) initiated a climate assessment of the squadron which revealed a negative perception of the squadron.  The climate assessment revealed the commander was unfair and that the first sergeant was a racist.  The EEO conducted interviews with members of the squadron and he was interviewed.  He did not want to believe race was a factor as leaders are expected to have integrity.

He requested a meeting with his commander about clemency in order to exhaust all avenues for reinstatement of his grade of TSgt.  He explained to his commander he was about to lose 14 years of his spotless career.  His commander proceeded to talk about the climate assessment and that he had caused the negative report.  

He understands his actions were wrong but the punishment was extremely harsh.  He has talked to generals, his command chief and the ADC.  His punishment was not tailored to the offense.    

In his over 14 years in the Air Force, this is the first disciplinary action he has received.  His duty performance has been consistently outstanding and he was selected for promotion by the first MSgt promotion board.  He has been honored with many awards to include Blacks in Government IMAGE Award, Lance P. Sijan Award Nominee and was featured in the base newspaper for his training of airmen.  He also served as the Top Five Vice President and taught NCO Professional Development at Creech AFB, NV.  He is also a member of the Asian Pacific American Association and coordinated Black History Month events.

He requests he be reinstated and returned to active duty in the grade of TSgt.  His punishment was harsh and unjust.  He was not previously told to cease contact with the A1C.  If so, he would understand the punishment.  His relationship with the A1C did not adversely affect morale, discipline, unit cohesion, and respect for authority or mission accomplishment per AFI 36-2909, Professional and Unprofessional Relationships.  In accordance with AFI 51-202, Nonjudicial Punishment, punishment is designed to maintain good order and discipline and promote positive behavior change.  He has learned from his mistakes and understands the perception of the unprofessional relationship.  The A1C and his former superintendent and supervisor provide letters of support.  He also provides character reference letters.  

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

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 28 August 2001 and was discharged on 2 August 2016 in the grade of SSgt with a narrative reason for separation of “Reduction in Force.”  He was credited with 14 years, 11 months and 5 days of active duty service.  

According to the AF Form 3070B, Record of Nonjudicial Punishment Proceedings (TSgt thru CMSgt), dated 5 October 2015, the applicant received an Article 15 for failure to maintain a professional relationship with an A1C and he intentionally exposed himself in an indecent manner by sending an electronic image of his genitalia to the A1C.  The applicant was reduced to the grade of Staff Sergeant (SSgt, E-5) with a Date of Rank (DOR) of 19 October 2015.   

The applicant provides a letter from the A1C dated 4 March 2016, which states he did not sexually harass her nor did she feel threatened to spend time with him.  She opened up to the SNCO about some things which she considered “girl talk” and her confidentiality was not honored.  She asked her not to go to leadership about their relationship and was blindsided regarding the investigation.  She was forced into allowing the investigation to go forward.  She did not feel comfortable she could talk about these statements as she was afraid of reprisal after being pushed into the situation.  

The applicant provides a letter from his superintendent at the time of his Article 15.  He states that while the applicant worked in the same building as the A1C, he did not directly or indirectly supervise her or her section.  His relationship with her did not detract from his authority, create favoritism or abandon organizational goals for personal interest.  The applicant did not adversely affect morale, discipline, unit cohesion and respect for authority or mission accomplishment as a result of his relationship with the A1C or her section in accordance with AFI 36-2909.  

The remaining relevant facts pertaining to this application are contained in the memorandums 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 for setting aside the NJP.  There is no legal error and the NJP was processed according to regulation and was within the commander’s authority, as was the specific punishment the applicant received.  Whether clemency is appropriate is within the discretion of the Board.

During the relevant timeframe, the applicant, a TSgt, began dating an A1C in his squadron and after several weeks sent her explicit photographs of himself, including his genitalia.  The A1C stated she did not request such photos and declined to continue dating the applicant.  An AFOSI forensic search of the A1C’s phone recovered one nude photograph of the applicant with his genitals exposed.

On 5 October 2015, the applicant was notified by his commander of his intent to impose NJP for one charge and one specification of dereliction of duty in violation of Article 92, Uniform Code of Military Justice (UCMJ) and one charge and one specification of indecent exposure in violation of Article 120c, UCMJ.  The applicant accepted the NJP, had the opportunity to consult with legal counsel, submitted written matters and declined to request an in-person hearing before his commander.  After considering all matters, his commander upheld the NJP and imposed punishment to include a reduction in grade to SSgt and a reprimand.  The applicant appealed the punishment which was denied by the squadron commander who served the NJP and the appellate authority.  On 16 and 18 November 2016, the NJP was determined legally sufficient.  

The applicant admits he sent the A1C sexually explicit material and provides a description of his relationship with her as well as details on his personal relationship with a SNCO who was involved in the reporting and investigations of the offenses.  He includes a letter written by the victim of the offense (the A1C) who stated she felt the command handled the NJP action out of context and pushed her into making statements she did not agree with and that she was afraid to speak out against her command for fear of reprisal.    

The applicant has not alleged any legal error in the NJP but instead attacks the commander’s decision as unjust and unwarranted under the circumstances.  He asserts his misconduct was consensual; however, the fact that a relationship is consensual does not mean it is not unprofessional; nor does it mean the materials sent from the applicant to the A1C were not indecent in the eyes of the commander imposing punishment.  A commander considering a case for disposition under Article 15 exercises discretion in evaluating the case, determining if the accused committed an offense and if so what, if any punishment is warranted.  The exercise of that discretion should generally not be reversed or otherwise changed on appeal by the Board absent good cause.  The commander reviewed eyewitness statements, the applicant’s written submissions and conferred with legal counsel.  The applicant also had the benefit of filing an appeal.  While the applicant stresses the punishment in this NJP should have been a learning point and not a career ending action, the punishment decision was well within the limits of his commander’s authority and discretion.  The decisions were not arbitrary or capricious and should not be set aside by the Board.  

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

AFPC/DP2STM-SEP recommends denial for reinstatement to active duty.  The applicant was discharged in accordance with the established procedures in Department of Defense (DOD) and Air Force Instructions.  

The HYT rule outlined in the Personnel Services Delivery Memorandum (PSDM)_11-110 dated 19 December 2011, reduced the HYT for SSgt to 15 years Total Active Federal Military Service (TAFMS).  Once an enlisted member reached their TAFMS, if the individual had not received promotion to the next higher grade, the individual was required to separate.  The applicant reached his TAFMS in the grade of SSgt and could not receive promotion to the grade of TSgt.  Based on his reduction in grade and HYT, he was discharged under Reduction in Force (RIF) in the grade of SSgt with 14 years, 11 months and 5 days of service in accordance with AFI 36-3208, Administrative Separation of Airmen.  

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit D.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 15 June 2017 for review and comment within 30 days (Exhibit E).  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 note the applicant requests his Article 15 punishment be mitigated and he be reinstated to active duty in the grade of TSgt stating his punishment was harsh and unjust.  We took notice of the applicant’s complete submission and the evidence of record in judging the merits of this case; however, we find no evidence of an error or injustice that occurred in the processing of the applicant’s Article 15 or his honorable discharge for RIF based on his grade and HYT.  While the applicant contends the actions of his commander were unduly harsh and unjust, other than his own uncorroborated assertions, he has provided no evidence to indicate this to be the case.  Based on the evidence, it appears the commander’s actions were within his discretion and authority and we find no evidence it was unjust or disproportionate to the applicant’s misconduct.  Accordingly, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt the rationale expressed as the basis for our conclusion the applicant has not sustained his burden of proof that he has been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD RECOMMENDS 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-2016-01169 in Executive Session on 7 July 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 17 March2016, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 1 September 2016
	Exhibit D.  Memorandum, AFPC/DP2STM-SEP, dated 
       25 October 2016.
	Exhibit E.  Letter, AFBCMR, dated 1 June 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.