RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-00530

	COUNSEL: NONE

	HEARING: YES

APPLICANT REQUESTS THAT:

His Letter of Reprimand (LOR) dated 29 Apr 14 and unfavorable information file (UIF) be removed from his records (ALREADY REMOVED).  

His referral officer performance report (OPR) for the period ending 21 May 14 be removed from his records or be re-written or replaced.  

He be credited with successful completion of his squadron commander tour and be considered as a graduated squadron commander.  

He be awarded the Meritorious Service Medal, fifth Oak Leaf Cluster (MSM, w/5 OLC) for completion of his squadron commander tour for the inclusive period of 14 Jun 13 to 12 Jun 14.

In an undated letter, he amended his request to include he be considered by a special selection board (SSB) for promotion to colonel and senior developmental education (SDE) attendance for the CY17D Colonel Central Selection Board (CSB). 

APPLICANT CONTENDS THAT:  

The adverse actions were taken without any investigation or substantiation of the allegations.  His area defense counsel demonstrated that while his leadership did not agree with his choice in parental discipline, his judgment and actions were not unlawful.  Child protective services (CPS) determined there was no physical abuse.  Per law, there was no violation of Uniform Code of Military Justice (UCMJ), Article 128.  His decisions were within his legal parental rights.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a lieutenant colonel in the Regular Air Force.  

He provides a copy of his LOR dated 29 Apr 14.  The LOR states he violated Article 128 of the UCMJ for hitting his daughter multiple times on her back and arms using his hands and a belt, causing her bodily harm.  He admitted to striking his daughter as described for failure to follow his directions to clean her room and complete her homework.  The incident was reported by his son and daughter to the Texas Department of Family and Protective Services Child Protective Services Division.  

The applicant provides a letter dated 29 Apr 14 from the 17th Training Group Commander (17 TRG/CC) which advised him that a security determination had been made to non-suspend his access/eligibility to classified information.  The action was required based on his admitted assault consummated by battery toward his teenage daughter on 6 to 7 Apr 14.  The applicant was relieved from command for admitted actions, which demonstrated a lack of judgment, and lack of self-control, which was inconsistent with someone, entrusted to command a squadron.  

The applicant was marked “Does Not Meet Standards” for judgment and decisions and received a referral OPR for the period ending 21 May 14.  The reason for the referral OPR was he received a LOR for domestic assault and battery on his daughter and was relieved from command.  

The applicant provides a letter from the Texas Department of Family and Protective Services dated 21 May 14, which shows the finding of physical abuse was “ruled out.”  

The applicant’s duty history in the military personnel data system (MILPDS) reflects AFSC C14N3, Commander, effective 28 Jun 13 to 22 Apr 14.  

In a letter dated 16 Jun 14, the applicant was notified by the Second Air Force Commander (two AF/CC), the LOR would not be filed in his officer selection record (OSR).

AFI 36-2803, Awards and Decorations Programs, paragraph 2.2.13 states if no approval/disapproval decision was made by the approval authority due to a recommendation for decoration being lost, not processed or acted upon due to administrative error, the recommendation for decoration should be processed through the original chain of command that existed during the act, achievement or service.   For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C, D and E.

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends approval for removal of the LOR and UIF per the Texas Department of Family and Protective Services letter dated 21 May 14.  The UIF expired in Apr/May 16 and would have been destroyed per AFI 36-2907, Unfavorable Information File Program.  Additionally, the LOR is not in his Automated Record Management System (ARMS) records or his OSR.  The complete advisory is at Exhibit C.

AFPC/DP3SP recommends the referral OPR ending 21 May 14 be removed.  Although the administrative action, which led to the referral OPR, still exists, he provided the results of the Texas Department of Family and Protective Services, which found the allegations of physical abuse to be unsubstantiated.  An AF Form 77, Letter of Evaluation (LOE), which states he was not rated for the period of 14 Jun 13 through 21 May 14 and that the evaluation was removed by the order of the Secretary of the Air Force should be placed in his records.  AFPC/DP3SP also states the applicant exhausted available administrative remedy by submitting his application to the Evaluation Report Appeals Board (ERAB) prior to submitting his application to the AFBCMR.  The ERAB denied the applicant’s request for removal of the OPR.  For the ERAB to favorably void the evaluation, the applicant must have proven by a preponderance of the evidence that the behavior did not take place and the corrected action taken was officially set aside and not removed or expired.  The complete advisory is at Exhibit D.  

AFPC/JA states the applicant has proven a material error or injustice warranting relief and concurs with AFPC/DP2SSM and AFPC/DP3SP.  The applicant agreed he spanked his daughter thereby providing evidence of a potential assault, which his commander relied on to issue the LOR.  The only investigatory body involved with the case (CPS) concluded there was no crime.  As the evidence fails to establish the crime of assault, the LOR is legally unsupportable.  

Prior to the CPS investigation closing out, and without the benefit of any official investigation being conducted by security forces (SFS), office of special investigations (OSI) or family advocacy., his wing commander served him with an LOR for violation of Article 128 (assault).  The UIF and referral OPR followed.  On 21 May 14, CPS finalized their investigation and “ruled out” the applicant physically abused his daughter.    Based on the “ruled out” finding, it was reasonable to conclude the alleged abuse did not occur.

By regulation, commanders and supervisors are charged with responsibility to administratively censure inappropriate or improper behavior in appropriate circumstances as stated in AFI 36-2907, Unfavorable Information File (UIF) Program.  LORs are discretionary in nature, must be supported by a preponderance of the evidence, and will not be disturbed unless evidence is not sufficient and or the action constituted an abuse of discretion.  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 7 Mar 18 for comment (Exhibit F).  In an undated response, he states the advisory opinions upheld his requests for corrective actions.  He also requests the Board consider him for SSB for promotion to colonel and selection for SDE.  He was a non-selectee for the CY17D Colonel CSB, which may be attributed to the referral OPR and derogatory information.  He also provides a citation for award of the MSM, fifth oak leaf cluster, with inclusive dates of 14 Jun 13 to 12 Jun 14.  The applicant’s complete submission is at Exhibit G. 

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 the victim of an error or injustice.  The applicant was issued a LOR, UIF and referral OPR and removed from command without the benefit of any investigation.  The Texas Department of Family and Protective Services report dated 21 May 14, ruled out physical abuse and there is no evidence the applicant committed assault on his daughter in violation of UCMJ, Article 128.  Therefore, we agree with the rationale and recommendation of AFPC/DP2SSM, AFPC/DP3SP and AFPC/JA that relief is warranted.  With respect to the applicant’s request that his LOR and UIF be removed, as pointed out by AFPC/DP2SSM, the LOR was not filed in the applicant’s OSR and is not in his ARMS records and the UIF has since been destroyed.  Therefore, there is no LOR and UIF for the Board to remove.  We note the applicant requests he be credited with completion of his squadron commander tour and he be awarded a MSM, w/5 OLC, for the period of 12 Jun 13 to 14 Jun 14.  However, his MilPDS records show he performed squadron commander duties from 28 Jun 13 to 22 Apr 14.  In this respect, while we agree the applicant’s removal from command was wrong, we do not agree he should be credited with a period of service he did not complete.  In view of this, it is our recommendation that the applicant be credited with completion of his squadron commander tour and he be awarded the MSM, w/5 OLC, for the inclusive period of 28 Jun 13 to 22 Apr 14.  Moreover, we recognize the applicant was not considered for award of the MSM by his chain of command; however, we find it reasonable to conclude he would have been awarded a MSM upon completion of his squadron commander tour had the error or injustice resulting in his removal from command not occur.   In view of the above, we recommend the applicant’s record be corrected to the extent indicated below.  

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 pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that 

           a. AF Form 707, Officer Performance Report, for the reporting period of 14 Jun 13 to 21 May 14 be void and removed from his records and replaced with an AF Form 77, Letter of Evaluation which states “Not rated for the above period.  Evaluation was removed by Order of the SecAF.”  

           b. The 17th Training Group Commander’s letter dated 29 Apr 14 for removal from command be void and removed from his record and his record show successful completion of his squadron commander tour for the period of 28 Jun 13 to 22 Apr 14.   

           c. He be awarded the Meritorious Service Medal (MSM), fifth oak leaf cluster, for the inclusive period of 28 Jun 13 to 22 Apr 14, a copy of the MSM citation be placed into the official record and special order be completed.       

           d. He be considered by a special selection board (SSB) for promotion to colonel and senior developmental education (SDE) attendance for the CY17D Colonel Central Selection Board (CSB). 

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 AFBCMR Docket Number BC-2017-00530 in Executive Session on 10 Apr and              8 May 18:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record as recommended.  The panel considered the following AFBCMR Docket Number BC-2017-00530:

Exhibit A: Applicant’s application, DD Form 149, dated 17 Feb 17, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, AFPC/DP2SSM, dated 29 Jan 18. 
Exhibit D. Advisory opinion, AFPC/DP3SP, dated 16 Feb 18. 
Exhibit E. Advisory opinion, AFPC/JA, dated 28 Feb 18.
Exhibit F: Notification of Advisory, SAF/MRBC to applicant, dated 7 Mar 18.  
Exhibit G. Applicant’s response, w/atchs, undated.   

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, AFBCMR Docket Number BC-2017-00530,et Hutso required by AFI 36-2603, paragraph 4.11.9.