RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03042 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) imposed on 3 Sep 02 be voided and removed from her records. 2. Her Officer Performance Report (OPR) rendered for the period 14 May 02 through 14 May 03 be voided and removed from her records. 3. She be given Special Selection Board (SSB) consideration for promotion to the grade of colonel (0-6) for 2009 and 2010. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. Her Article 15, UCMJ punishment has served its intended purpose and its continued presence in her record constitutes an unduly harsh punishment. 2. Her Article 15 has caused her consequences far beyond the intended purpose of accountability. 3. The commander’s intent was to hold her accountable for her actions, but to do so in a way that would allow her to recover from her isolated mistake. 4. The Board would serve the best interests of the Air Force by completely removing the record at this time. 5. The Article 15 now stands out as the one blemish on her otherwise outstanding and accomplished career, continues to prevent her career advancement and prevents the Air Force from utilizing her skills and abilities in positions for which she is qualified. In support of her request, the applicant provides an 11 page legal brief with attachments. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the United States Air Force Reserve in the grade of lieutenant colonel. Based on the available evidence, the applicant was charged with violations of Articles 92 and 133, UCMJ. Specifically, she was accused of violating a lawful general order by wrongfully having sexual intercourse with a junior enlisted member; and wrongfully engaging in fraternization by kissing and hugging, in a public bar a junior enlisted member, who was a member of the unit the applicant was inspecting as part of her duties as a member of the 14th Air Force Standardization and Evaluation Inspection Team. The applicant consulted counsel, waived her right to demand trial by court-martial, and accepted the NJP. She submitted written matters in her own behalf and requested a personal appearance before the commander. The commander determined she committed the offenses alleged and imposed punishment consisting of forfeiture of $1,250 pay per month for two months and a reprimand. The applicant appealed the commander’s decision, however, her appeal was denied by her commander and the appellate authority. The commander decided the action would be filed in her Unfavorable Information File (UIF); however, he decided not to file the Article 15 in her Officer Selection Record (OSR). The Article 15 action was reviewed by the servicing and General Court-Martial Convening Authority (GCMCA) Staff Judge Advocate (SJA) offices and determined to be legally sufficient. On 6 Jun 03, the applicant received a referral OPR for the period 14 May 02 through 13 May 03. On 26 Apr 04, the commander removed the Article 15, UCMJ action from her UIF. The applicant filed an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports; however, the ERAB was not convinced the original report was unjust or wrong and disapproved the applicant’s request. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and D. _________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPB recommends denial. AFI 36-2406, Officer and Enlisted Evaluation System states that in deciding whether to record adverse information on a performance report, evaluators must consider that the vast majority of Air Force personnel serve their entire career with honor and distinction. Failure to document misconduct which reflects departure from the core values of the Air Force is a disservice to all personnel competing for promotion. Paragraph 1.3.1, strongly encourages evaluators to comment on misconduct that reflects a disregard of the law, whether civil or the UCMJ, or when actions such as an Article 15 have been taken. The objective of the Reserve promotion process is to promote fully qualified officers to serve in the next higher grade based on past performance and future potential. Voiding and removing the Article 15 and the referral OPR would imply the applicant never committed the misconduct for which she already acknowledged responsibility. It would disadvantage every other lieutenant colonel who did not violate the UCMJ, who was considered for jobs with greater responsibility, and who would compete with her for promotion. The complete DPB evaluation is at Exhibit C. AFLOA/JAJM recommends denial. A review of the NJP action shows no error in the processing of the action. The applicant was given all of her rights throughout the process. She was able to present matters (with the assistance of legal counsel) to the commander for consideration before imposition of punishment. The applicant was able to appeal the decision of her commander. The applicant’s claim of error or injustice with regard to the Article 15 action centers on the fact she claims the Article 15 has long since fulfilled the commander’s intended purpose, but the continuing facts of the Article 15 in the applicant’s personnel record serves to make the punishment unduly harsh. The applicant points out that the commander decided not to file the Article 15 in the applicant’s OSR so as not to affect her chances for promotion and advancement. The applicant points out occasions when her referral OPR (which includes mention of the Article 15) was used to deny her positions for which she would have otherwise been the “number one or number two qualified candidate.” A set aside of NJP is the removal of the punishment from the record and the restoration of the service member’s rights, privileges, pay, or property affected by the punishment. Setting aside an Article 15 action restores the member to the position held before imposition of the punishment, as if the action had never been initiated. Set aside of punishment should not routinely be granted. Rather, set aside is to be used strictly in the rare and unusual case where a genuine question about the service member’s guilt arises or where the best interests of the Air Force would be served. There is no genuine question about the applicant’s guilt in this matter. The applicant has not made any claims that she did not commit the offenses for which she faced NJP in 2002. Furthermore, contrary to the applicant’s arguments, a set aside of the Article 15 would not be in the best interests of the Air Force. The issues raised by the applicant as constituting part of the “unduly harsh punishment” of the Article 15 are, in fact, collateral consequences of the Article 15. The commander’s punishment consisted of forfeiture of $1,250 pay per month for two months and a reprimand. The commander also opted not to file the record of the Article 15 in the applicant’s OSR. This latter action by the commander appears to have served its purpose, since the applicant was promoted to lieutenant colonel at some point after her Article 15 action and in spite of the fact that one of the applicant’s OPRs included mention of the Article 15. The interests of the Air Force are not served by setting aside an Article 15 which properly documents the misconduct committed by the applicant. The complete JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant through her attorney responded to the advisory opinions. Counsel states the purpose of the applicant’s appeal to the AFBCMR is to ensure that her official military record is clean of all references to her receipt of NJP as was the intent of the imposing commander, Lieutenant General H. Lieutenant General H has repeatedly voiced his intent that the Article 15 not be filed permanently in her record and that it not be used to adversely affect her military career. Counsel states the advisory opinion from the Air Force Legal Operations Agency (AFLOA), points out the fact the applicant received due process. This fact is not in dispute. The applicant acknowledges that she received due process and elected to accept the Article 15. She appealed the punishment and her appeal was denied. She served her punishment and is not requesting any relief regarding the amount or nature of the punishment she received. In that respect, the AFLOA discussion concerning setting aside the punishment is irrelevant. The advisory opinion does not address the removal of the UIF or the initiating commander’s authority to take such action. Therefore, the advisory opinion does not address the issue of whether or not the NJP should be located in any official record and should not weight heavily on the final decision of the Board. Counsel states the advisory opinion of the Air Reserve Personnel Center (ARPC) cites the section of AFI 36-2406, having to do with general considerations and encouraging raters to document misconduct. The portions of the regulation specifically addressing adverse information are controlling and would also point out that misconduct is a very broad category. While it certainly behooves the service to provide an accurate picture of the officer for promotion boards, it also places the authority for painting that picture with the officer’s chain of command. The regulation does not mandate mention of disciplinary action, except in the case of courts-martial, and instead encourages raters to consider factors including impact on the mission, duty performance, aggravating factors, and whether the misconduct reflected poorly on the Air Force. Lieutenant General H does not cite his consideration of these factors in his decision to refer the applicant’s OPR, but says he felt constrained by then Air Force senior leadership guidance and expectation indicating NJP should be cited in annual performance reports. This guidance contradicts the regulation and had it not been in place at the time, the NJP would not have been mentioned in the applicant’s OPR. The advisory goes on to confuse removing reference to the NJP in the OPR with setting aside the punishment, which is an erroneous interpretation of AFI 51-202, Nonjudicial Punishment. ARPC also states an opinion that the removal of the OPR would “give unfair advantage” to the applicant. This could not be further from the truth. The applicant would still be competing based on the merits of her file. She would not, however, be unfairly disadvantaged by a reference that her raters felt compelled to include that neither one agreed with. Clearly, the intent of the applicant’s chain of command was that she survives this isolated incident of misconduct and be competitive for positions of increased responsibility and authority. The advisory opinion from ARPC does not cite any controlling authority outside the general consideration of AFI 36-2406. It does not comment on the fact that the NJP was not included in the officer’s selection record or the impact of that decision. The ARPC advisory opinion consists of unsupported opinion and should not be given credence by the Board. The two advisory opinions solicited by the Board do not add anything to the determination of whether relief should be granted in this case. The consideration is one of both propriety and equity. The authority of the commander to decide the fate of those with whose lives he or she is entrusted should be held in the highest regard and not subject to second-guessing or manipulation by either higher authority or subsequent authority. To allow this is to circumvent command authority and tear at the very fabric of good order, morale and discipline. There is no question the applicant is one of the finest and most talented officers in the Air Force. Commander after commander have lauded her drive, dedication and outstanding performance. Her potential to the Air Force as an officer, leader and mentor cannot be overstated. It is up to the service to decide whether to allow one mistake to inhibit her rise or whether to embrace her potential and remove the one blemish tarnishing her otherwise pristine career. Counsel’s complete evaluation is at Exhibit F. _________________________________________________________________ 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 error or injustice. After carefully reviewing the evidence of record, we are not persuaded the Article 15 should be declared void and removed from her records. We are also not persuaded that the comments contained in her OPR were in error or contrary to the provisions of the governing instructions. We also find no basis to recommend SSB consideration. As such, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice. We note the applicant has provided a statement from the imposing commander in support of her request; however, we do not find it sufficiently persuasive to override the rationale provided by the Air Force OPR. While it appears the incident in question may have been an aberration in an otherwise stellar career, the punishment she received appears appropriate to the offense and does not appear to be unjust or disproportionate. Therefore, we find no basis to recommend granting the requested relief. 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-2011-03042 in Executive Session on 1 May 12, under the provisions of AFI 36-2603: The following documentary evidence pertaining to BC-2011-3042 was considered: Exhibit A. DD Form 149, dated 17 Aug 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, ARPC/DPB, dated 4 Oct 11. Exhibit D. Letter, AFLOA/JAJM, dated 15 Sep 11. Exhibit E. Letter, SAF/MRBR, dated 4 Nov 11 Exhibit F. Letter, Applicant, dated 2 Dec 11.