RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04414

	COUNSEL: 

	HEARING: YES

APPLICANT REQUESTS THAT:

1.  His Non-judicial Punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) imposed on 10 Dec 15, be declared void and removed from his records.

2.  His Enlisted Performance Report (EPR), rendered for the period 1 Oct 15 through 5 Mar 16, be declared void and removed from his military personnel records.

3.  He be reinstated to the grade of Master Sergeant (MSgt, E-7).

APPLICANT CONTENDS THAT:

The Article 15 was both legally erroneous and fundamentally unjust.  He was not provided with all the evidence that the commander examined and relied upon to impose punishment.  He received an unlawful No-Contact Order that interfered with his ability to mount a defense.  The evidence did not prove that he committed the offenses or that punishment was warranted.  Later discovered evidence demonstrates the NJP action was not warranted.  The applicant’s complete submission 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 10 Dec 15, the applicant was notified of his commander’s intent to impose NJP for one charge and six specifications in violation of Article 92, UCMJ.  This included one specification of violation of a lawful general regulation and five specifications of dereliction of duty.  The applicant accepted NJP, had the opportunity to consult with legal counsel, and submitted written matters to the commander.  After considering all matters, the commander concluded that the applicant committed all of the offenses.  The commander imposed punishment of a reduction to the grade of technical sergeant and a reprimand.  The applicant appealed the NJP, but that appeal was denied by the imposing commander and the appellate authority.  On 18 Dec 15 and on 23 Dec 15, respectively, the servicing and supervisory legal offices found the NJP action legally sufficient.

AFI 51-202, Nonjudicial Punishment, paragraph 3.9.1, dated 31 Mar 15 states in part, “…make available to the member all statements and evidence upon which the commander intends to rely in making his or her decision.”

On 4 May 16, the applicant’s commander notified him that he was referring the EPR with the closeout date of 5 Mar 16 in accordance with AFI 36-2406, Military Performance Evaluations, paragraph 1.10, indicating the report contained comment(s)/rating(s) that made the evaluation a referral.  Specifically, what causes the report to be referred is:  Section IV, Follower/Leadership, which reflects “Met some but not all expectations,” and the commander’s comments pertaining to the Article 15.

In the applicant’s rebuttal to the referral EPR dated 10 May 16, he states in part that he maintained his innocence of the allegations from the very beginning and will continue to do so.  He states that his accuser had integrity issues during her AFROTC training that was well documented.  He also stated that he was disappointed by the refusal to apply the presumption of innocence or consider any of his character letters.  On 27 Jun 16, the applicant’s rebuttal to the referral document was reviewed by his rater and commander.  On 6 Jul 16, the applicant acknowledged that all required feedback was accomplished during the reporting period and upon receipt of the referral EPR.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and E.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the applicant’s request to remove the NJP action indicating there is legal error or injustice.  A review of the NJP action imposed on the applicant reveals no legal error or injustice which would warrant removal of the NJP from his record.  

The commander in this case had the ability to review witness statements, review the applicant’s written submissions and confer with legal counsel as to the sufficiency of the evidence.  The applicant exercised his option to file an appeal directly to that commander after the punishment was decided, and again to the appellate authority.  There is no evidence that the decision to proceed with NJP or the punishment decision were outside the limits of his commander’s authority and discretion.  Those decisions were not arbitrary or capricious and should not be set aside by the Board.  The complete advisory is at Exhibit C.

AFPC/DP2SPE recommends denying the applicant’s request to remove the contested EPRs from his record and states, in part; that the applicant has not exhausted avenues of administrative relief. The Evaluation Reports Appeal Board (ERAB) was established to provide all Air Force personnel with an avenue of relief for correcting errors or injustices in evaluations at the lowest possible level.  An applicant’s first avenue of relief for correcting an evaluation is through the ERAB, which is accessible via the vMPF/vPCGR.  If the administrative appeal is not successful, the applicant may resubmit the DD Form 149, Application for Correction of Military Records, and the results of the ERAB administrative review for processing to the AFBCMR.  The complete advisory is at Exhibit D.

 AFPC/DP2SPP makes no recommendation regarding the set aside of the Article 15 or removal of the contested reports.  However, should the Board set aside the NJP and remove both EPRs, the applicant’s record should be corrected to reflect MSgt effective and with a DOR of 1 Jun 14.  The Board should also direct supplemental promotion consideration to Senior Master Sergeant (SMSgt) beginning with cycle 16E8, once all affected EPRs are corrected and applicant is promotion tested.  The complete advisory is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 12 Jul 18 for comment (Exhibit F), and the applicant’s counsel replied on 9 Aug 18.  In his response, counsel contends the applicant was not provided a copy of the Command Directed Investigation report, along with its attachments.  Therefore, the applicant was deprived of his ability to defend himself.  The applicant was only provided copies of the summarized testimony of certain witnesses and certain additional witness statements.  However, this does not comply with AFI 51-202, paragraph 3.9.1, which requires the commander to “make available to the member all statements and evidence upon which the commander intends to rely in making his or her decision.”  

Additionally, because the applicant was issued a no-contact orders, he was required to utilize the Area Defense Counsel (ADC) for all contact with potential witnesses.  Counsel argues that the no-contact orders prevented the applicant from refuting the specific allegations and limited him to presenting generalized character statements on his behalf in a template form.  AFLOA/JAJM does not specify how this unusual procedure satisfied the legal requirement that a service member be permitted to have access to and present witnesses in his defense.  Nor does the advisory address the arguments that the timing, context, and content of the commander’s no-contact order, dated 30 Nov 15, all that its purpose was to deliberately hamper the applicant’s defense.  The advisory opinion merely asserts the commander’s discretion to impose punishment.  

Lastly, the advisory opinion admits that the later discovered evidence contradicted the allegations, but argues the applicant did not show that the evidence was not available through his defense counsel prior to the NJP.  This argument simply ignores the undisputed facts.  The statements dated in early December 2015 compared to those the applicant was able to present in March 2016, once the no-contact order was lifted is a critical difference.  The NJP process was fundamentally unjust and legally flawed (Exhibit G). 

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant did not exhaust all available avenues of non-judicial relief with the Evaluation Reports Appeal Board (ERAB) before applying to the Board.  The Board does not consider applications without documentation showing exhaustion of such avenues of relief.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is not the victim of an error and injustice to warrant removing the Article 15 and reinstating his grade to MSgt.  The Board agrees with the opinions and recommendations of the Air Force OPRs and adopts the rationale expressed as the basis for their conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  Counsel’s argument that the Article 15 process was unjust and legally flawed is duly noted; however, substantial evidence has not been presented to successfully refute the assessment of his case by the Air Force OPR.  With respect to the applicant’s request to void and remove the contested EPR, as noted by AFPC/DP2SPE, the applicant failed to 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.  As such, 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.  Absent persuasive evidence that he was denied rights to which he was entitled, the Board finds no basis to recommend granting the relief sought in this application.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

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 Docket Number BC-2016-04414 in Executive Session on 15 Aug 18 and 4 Sep 18:

	, Panel Chair
	, Member
	, Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 25 Oct 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 22 Sep 17.
Exhibit D:	Advisory opinion, AFPC/DP2SPE, dated 31 Oct 17.
Exhibit E:	Advisory opinion, AFPC/DP2SPP, dated 6 Jun 18.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Jul 18.
Exhibit G.	Applicant’s response, dated 9 Aug 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 for BC-2016-04414.