RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03061

 	COUNSEL:  

 	HEARING: YES

APPLICANT REQUESTS THAT:   

His Nonjudicial Punishment (NJP) and demotion from the grade of chief master sergeant (CMSgt, E-9) to senior master sergeant (SMSgt, E-8) be void and removed from his records.

APPLICANT CONTENDS THAT: 

Counsel, on behalf of the applicant, states the evidence was insufficient and based on statements provided by individuals harboring ulterior motives.  The unsubstantiated allegations were cited as justification for the Article 15.  

On 29 Jun 12, he filed a memorandum for record (MFR) chronicling the inappropriate behavior of his commander who told him about her open marriage and sexual relations while traveling. In the months following his report, he was the subject of a targeted campaign of retribution designed to embarrass him, undermine his authority and remove him from his leadership position.  In an effort to further discredit him, he was issued do not contact orders with four female squadron members.  

On 4 Jan 13, a commander directed investigation (CDI) found he abused his authority in his treatment of subordinates and was disrespectful to a superior officer. 

On 8 Jan 13, he filed a complaint with the inspector general (IG) citing his commander’s ongoing pattern of conduct, abuse of power, reprisal, retaliation and defamation of character.  The complaint was never investigated but was the basis for retaliatory acts.  

On 15 May 13, he was notified he would receive NJP and would be demoted from CMSgt to SMSgt.   He was the victim of bullying and sexual harassment at the hands of his commander.  He was reassigned duties out of his office, had to ask permission to enter the building, was banned from attending the squadron Christmas party and his commander refused to sign his application for an Active Guard Reserve (AGR) position.  He was the victim of sexual harassment by his commander and placed under the direct control of his abuser. 

The demotion by the 315th Airlift Wing Commander (315 AW/CC) was in violation of AFI 36-2503, Administrative Demotion of Airmen, which states the demotion authority for airmen in the grades of SMSgt and CMSgt shall be the Numbered Air Force commander (NAF/CC).  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a SMSgt in the Air Force Reserve.  

Per the AF Form 3070B, Record of Nonjudicial Punishment Proceedings (MSgt thru CMSgt), dated 15 May 13, the applicant received an Article 15.  The reasons for the Article 15 include disrespectful behavior towards his commander, publicly questioning her, making statements that she had an open marriage and for failure to follow direct orders to not discuss the CDI by wrongfully contacting a witness to influence her testimony. Punishment included reduction to the grade of SMSgt with a new date of rank of 23 Jun 13 and a reprimand.   On 27 Aug 13, the 4th Air Force Commander (4 AF/CC) denied the applicant’s appeal.

Per Reserve Order A-001 dated 2 Nov 13, the applicant was demoted to the grade of SMSgt with effective date and DOR of 23 Jun 13 in accordance with AFPD 36-25, Military Promotion and Demotion, and the NJP.  

In an e-mail dated 18 Oct 16, SAF/MRBL advised the base was unable to locate the CDI due to the disposition of the documents and the requirement to keep files only for the current year and two years prior.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits D and E. 

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  On 2 Nov 13, the installation and NAF legal offices found the NJP action legally sufficient.  The relevant instruction when considering what punishment is authorized through NJP is AFI 51-202, Nonjudicial Punishment.   The applicant is correct that the authority to demote a member of the Air Force Reserve in the grade of CMSgt or SMSgt is at the NAF/CC level; however, a reduction in grade executed as part of NJP punishment is not a demotion action and the authority for this action is tied to the ability to promote, not demote a member.   In accepting the NJP, the applicant accepted the forum wherein his commander assessed the evidence and made a determination as to his guilt and appropriate punishment.  There is no evidence the decision to proceed with NJP or the punishment decision were outside the limits of his commander’s authority and discretion.  The complete advisory is at Exhibit D.

AFRC/A1K recommends denial and agrees with AFLOA/JAJM.  Additionally, AFI 36-2502, Enlisted Airmen Promotion, in effect at the time, stated the promotion authority for Air Force Reserve members in the grades of SMSgt and CMSgt is the wing commander.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:  

The Board sent copies of the Air Force evaluations to the applicant on 5 Mar 18 for comment (Exhibit F), but has received no response.  

THE BOARD CONCLUDES:

1.  The application was timely filed.  

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.  

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  With respect to counsel’s allegations, the applicant experienced sexual harassment and was the victim of retaliation by his commander for submitting a complaint against her, other than his own uncorroborated assertions, we find no evidence to indicate this to be the case.  The Board concurs with AFLOA/JAJM and AFRC/A1K and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  

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.

THE BOARD RECOMMENDS:  

The APPLICANT be informed that the evidence did not demonstrate material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION: The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered AFBCMR Docket Number BC-2016-03061 in Executive Session on 10 Apr 18:

 , Panel Chair
  Member
 , Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A: Applicant’s application, DD Form 149, dated 2 Jul 15, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C.  E-mail, SAF/MRBL, dated 18 Oct 16.
Exhibit D: Advisory opinion, AFLOA/JAJM, dated 17 Feb 17.  
Exhibit E. Advisory opinion, AFRC/A1K, 27 Feb 18, w/atchs.
Exhibit F: Notification of Advisory opinions, SAF/MRBC to applicant, dated 5 Mar 18.
 
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.