RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02566 COUNSEL: NONE XXXXXXXXXXXXXXXX HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Article 15 imposed on him on 6 October 2010 be set aside and all rights and privileges be restored. 2. His Enlisted Performance Report (EPR) rendered for the period 29 August 2009 through 28 August 2010 be voided and permanently removed from his record. (Administratively corrected) 3. The non-recommendation for promotion to the grade of technical sergeant (E-6) served on him on 16 March 2010 be reversed and removed from his record. _________________________________________________________________ APPLICANT CONTENDS THAT: The allegations of him having an extra-marital affair and disobeying a lawful no-contact order are false, inaccurate, unsupported, and blasphemous. In support of his appeal, the applicant provides a personal statement; and, copies of his non-recommendation for promotion memorandum; No-Contact Orders; EPRs; character references; memorandum for record; certificate of recognition; awards and decorations; Performance Feedback Worksheet; notifications of referral EPR; rebuttals to referral EPR; Permanent Record of Performance Report memorandum; Letters of Evaluation; Army Military Police School diploma; and certificates of recognition, achievement and appreciation. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of senior airman (E-4). On 16 March 2010, the applicant was non-recommended for promotion by his commander for a period of one year for violating a no- contact order. On 18 October 2010, the applicant received Article 15 punishment for disobeying a lawful order in violation of Article 92, Uniform Code of Military Justice. He received punishment consisting of reduction in grade to senior airman (E- 4) and a reprimand. On 9 November 2010, the applicant was notified by his rater that his EPR rendered for the period 29 August 2009 through 28 August 2010 was referred. However, the applicant’s acknowledgment of receipt was dated 27 September 2010 and his rebuttal to the referral EPR was dated 4 October 2010. On 9 December 2010, the applicant was notified that a “Directed by Commander” EPR for the period 29 August 2010 through 9 December 2010 was referred. On 22 July 2011, the applicant was notified by AFPC/DPSIDE (Superintendant, Air Force Evaluations) that his referral EPR closing 28 August 2010 was removed by the Evaluations Report Appeal Board (ERAB) as it is in violation of Air Force Instruction 36-2406, paragraph 3.9.5.1. DPSIDE indicates the referral memorandum was referred to the applicant on 9 November 2010. The date of the applicant’s rebuttal is recorded as 4 October 2010, a date which is prior to the date of issuance of the referral memorandum, and is thus a procedural violation concerning the preparation of the contested report. On 15 April 2011, the applicant filed an IG complaint with the 30th Space Wing alleging reprisal by his commander by refusing to sign a Command Directed EPR. On 26 April 2011, after conducting an analysis of the complaint, the 30th Space Wing Inspector General responded to the applicant that he determined there were no violations of any laws, policies, instructions, etc.; therefore, in accordance with Air Force Instruction 90-301, Table 2.9, the applicant’s complaint was dismissed. On 16 May 2011, the applicant filed a Complaint of Wrong under Article 138, UCMJ, to the 30th Mission Support Group (General Court-Martial Convening Authority), that he was wronged by the 30th Security Forces Squadron commander by her discretionary acts, or acts condoned by her, which violated Air Force Instructions, were capricious, an abuse of discretion, and clearly unfair by the selective application of standards. The 14th Air Force Commander responded that after a thorough review of his complaint, she found his commander committed no “wrongs” under Article 138; therefore, his request for redress was denied. The remaining relevant facts, extracted from the applicant’s service records, are contained in the advisory opinions prepared by the Air Force offices of primary responsibility at Exhibits C and D. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that with regard to the Article 15 action, the applicant has not shown a clear error or injustice. On 6 October 2010, the applicant’s commander offered the applicant nonjudicial punishment for failing to obey a lawful order not to have contact with a civilian female, in violation of Article 92, Uniform of Military Justice (UCMJ). After consulting with his assigned military defense counsel, the applicant accepted the Article 15 and waived his right to demand a trial by court-martial. He presented written matters to and personally appeared before the commander who, on 18 October 2010, decided the applicant committed the alleged offense. The resulting punishment consisted of reduction in grade to senior airman (E-4) and a reprimand. The applicant appealed the commander’s decision, but that appeal was denied by both the commander and the appellate authority. A legal review of the Article 15 determined it was legally sufficient. JAJM indicates that in this case, the applicant protests that he did not have an extra-marital affair with the spouse of another active duty member. He details how he cannot have committed the offense of adultery, a violation of Article 134, UCMJ. He also discusses the allegation that his on- and off-duty behavior does not adhere to established standards. However, what the applicant does not discuss is the single offense with which he was charged in the Article 15 action. The Article 15 charge did not allege the applicant had committed adultery or even discussed whether his on- or off-duty behavior met established standards. The allegation on the Article 15 was that: 1) on 17 September 2010, his commander issued the applicant a lawful order not to have contact with a certain civilian female; 2) the applicant had knowledge of that order; 3) the applicant had a duty to obey the order; 4) the applicant failed to obey the order by meeting with the civilian female between on or about 18 September 2010 and on or about 29 September 2010. The applicant’s response to the specific allegation of failing to adhere to a lawful no-contact order does not address in any way the issue of whether he actually met the civilian female during the charged timeframe, nor does he provide any evidence to support his contention that he did not violate the specific lawful order which was mentioned in the Article 15 action. It is JAJM opinion that there is no error or injustice in the Article 15 action such that a set-aside would be in the best interests of the Air Force. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE recommends denial of the applicant’s request to remove the promotion non-recommendation. DPSOE states the applicant was considered and tentatively selected for promotion to the grade of technical sergeant during cycle 09E6. He received Promotion Sequence Number (PSN) 6569.0 which would have incremented on 1 June 2010; however, on 6 March 2010, his commander non- recommended him for promotion. On 18 October 2010, the applicant received an Article 15 for disobeying a lawful no-contact order. His punishment consisted of a reduction in grade to senior airman with a new date of rank of 18 October 2010, and a reprimand. He also received referral EPRs for the period 29 August 2009 thru 28 August 2010, and 29 August 2010 thru 9 December 2010. The ERAB approved removal of the 28 August 2010 report. DPSOE indicates the applicant’s commander was in the best position to evaluate the applicant’s potential and eligibility for promotion; and acted within his authority when he decided to non-recommend the applicant for promotion to technical sergeant. The complete AFPC/DPSOE evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Upon review of the advisory opinions related to his request, he finds some inaccuracies and misunderstandings of the interpretation of his complaints and the information he has provided. In regard to the DPSOE evaluation, he states that paragraph 4 of the nonrecommendation memorandum fails to comply with AFI 36-2502 by providing vague details of the reason for the demotion, and referring to alleged evidence, which he outlined in his submission to be falsified and corrupt. The applicant also indicates that as much as the actions taken against him are technically within the authority of the commander, he disagrees that a commander is in the best position to evaluate the potential and eligibility for promotion of an enlisted member. In regard to the JAJM evaluation, he believes their initial recommendation is based on an inaccurate analysis of the information provided. In response to the statement that his appeal was denied by his commander and the appellate authority, he contributes this to a broken and unjust legal system as it is currently operated. The applicant provided his point by point rebuttal to each paragraph in the “Discussion” section of the advisory. In regards to the recommendation made to deny his request, he does not feel the recommendation or advisory opinion of the reviewer is a direct reflection of the correct paperwork associated with the matters for which he provided review. He believes that a more thorough review of the correct arguments and matters pertaining directly to the area he chose to access “would result in a different opinion if the opinion was in response to the correct documentation for the matters reviewed by this section.” In response to the advisory provided by AFPC/DPSIDE on the removal of the contested performance evaluation, he states that though the matters associated with the decision reached were not directly related to the material provided in his request, they are still factors which he pointed out to his commander in a formal request for redress, which she chose to disregard. He is happy with the outcome of this portion of his request. The applicant’s complete rebuttal is at Exhibit F. _________________________________________________________________ THE BOARD DETERMINES 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 error or injustice. After reviewing the complete evidence of record and circumstances of this case, we are not persuaded that the commander’s action nonrecommending the applicant for promotion was in error or constituted an injustice. The applicant argues that the commander’s action did not comply with the governing instruction, AFI 36-2502. However based on our review of AFI 36-2502 and the nonrecommendation letter, we believe the letter meets the intent of the instruction. While the applicant may or may not have had an extra-marital affair, we believe his violation of the no contact order was sufficient for the action. In that regard, the letter specifically lists this as a reason and gives specific dates of occurrences. Although the applicant expresses the view the commander was not in the best position to determine if he should be promoted, we note this is an inherent responsibility of the commander’s position and we are not persuaded by the evidence submitted that the commander’s action was arbitrary or capricious or outside her discretionary authority. The applicant also requested this board remove the referral EPR rendered on him for the period 29 August 2009 through 28 August 2010. However, due to technical deficiencies, this report has been removed by the ERAB. As such, no action is required on this issue. Finally, the applicant requests the Article 15 imposed on him be set aside stating the action was only found legally sufficient because of a broken and unjust legal system. Notwithstanding the applicant’s view, we find insufficient evidence that the applicant was denied any rights entitled to under the Article 15 process, to include his right to demand trial by court martial which would have required a different legal standard for his conviction. By accepting the Article 15 forum, the applicant entrusted to his commander the responsibility to decide if he had committed the alleged offenses. We do not find the commander abused her discretionary authority or that her action was arbitrary or capricious. We considered the extenuating circumstances the applicant raised regarding his pending divorce and the dire financial straits in which he found himself. We also note his exceptional record of performance. Nevertheless, we do not find the commander’s actions holding him accountable for his misconduct to be unreasonable. We note the applicant filed a formal complaint with the IG and also a complaint under Article 138, UCMJ, against his commander. No acts of wrong doing by his commander were substantiated in either case. Therefore, although we find the circumstances of this case regrettable, we do not find a basis to recommend granting the relief sought and must recommend that all requests, with the exception of the administrative removal of the EPR, be denied. 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. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC- 2011-02566 in Executive Session on 12 October 2011, under the provisions of AFI 36-2603: XXXXXXXXXXXXXXXXXXXX, Panel Chair XXXXXXXXXXXXXXXXXXXX, Member XXXXXXXXXXXXXXXXXXXX, Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2011-02566: Exhibit A. DD Form 149, dated 27 Jun 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 15 Aug 11. Exhibit D. Letter, AFPC/DPSOE, dated 18 Aug 11. Exhibit E. Letter, SAF/MRBR, dated 2 Sep 11. Exhibit F. Letter, Applicant, dated 20 Sep 11. XXXXXXXXXXXXXXXXXX Panel Chair