RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04651 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Non-Judicial Punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) imposed on 4 Jun 13, be set aside and removed from his records. He further requests that any rank, pay, allowances, entitlements, rights and privileges affected by the NJP be restored. APPLICANT CONTENDS THAT: His punishment under Article 15, UCMJ was in error and resulted in an Unfavorable Information File (UIF), loss of line number to the grade of master sergeant, reduction in grade to Staff Sergeant (SSgt) and loss of pay and allowances. Specifically, the Procedural Guidance Message was not properly followed at the time of the original allegation submitted by a recruit. The recruit should have been interviewed upon knowledge of the allegation and before being allowed to depart for Basic Military Training (BMT). Neither he nor his production superintendent or immediate supervisor was contacted until the recruit had departed for BMT. Had the PGM been followed, the allegation could have been resolved in-house and/or at the lowest level of authority, without the assistance of the Office of Special Investigations (OSI) and the Area Defense Counsel (ADC), which resulted in additional allegations based off the interviews provided by the recruit. He does not feel his actions should have gone unpunished; however a Letter of Reprimand (LOR) with conditions would have been sufficient punishment and served the desired purpose. In support of his appeal, the applicant provides copies of witness interview summaries with his clarification responses, character statements, AF Forms 910, Enlisted Performance Report (AB thru TSgt); AF IMT 2096, Classification/On-the-Job Training Action; AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt); and various other documents associated with his requests. 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 SSgt. Based on the AF Form 3070A dated 4 Jun 13, the applicant was charged with violation of Article 92, UCMJ. Specifically, on divers occasions, from on or about 1 Jan 12, to on or about 31 Jan 13, the applicant willfully failed to maintain professionalism in his relationship with recruits, as it was his duty to do, by engaging in improper conduct with recruits that included embracing and patting the buttocks of male recruits. On 10 Jun 13, the applicant consulted counsel, waived his right to demand trial by court-martial and accepted the NJP. He submitted written matters in his own behalf and requested a personal appearance before the commander. On 13 Jun 13, the commander determined the applicant committed the alleged offense and imposed punishment consisting of reduction in grade from Technical Sergeant (TSgt) to SSgt and reprimanded him. On 18 Jun 13, the applicant appealed the commander’s decision and submitted written matters in his own behalf. On 21 Jun 13, the appeal was denied by the commander. On 25 Jun 13, the appellate authority denied the applicant’s appeal and his commander decided the action would be filed in an UIF. On 26 Jun 13, the applicant was notified of the commander’s decision. According to a AFLOA/JAJM letter, dated 6 Nov 13, on 27 Jun 13 and 12 Jul 13, respectively, both the Servicing and General Court- Martial Convening Authority (GCMCA) Staff Judge Advocate (SJA) offices reviewed the Article 15, UCMJ action and determined it to be legally sufficient. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. The applicant does not make a compelling argument that the Board should overturn the commander’s NJP decision on the basis of an error or injustice. 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. The complete JAJM evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He understands that the punishing commander possessed the authority to act in the manner in which he chose. However, his concern is that had the proper procedure been followed, then the situation would not have elevated to the level in which it did; which in turn led to a much harsher punishment than his ADC suggested. He understands that a sexual assault allegation is serious; however, this case could have been handled by the squadron commander. One such error was that the squadron operations flight chief did not follow the chain of command, but instead approached the squadron commander with partial information. At the time of the original allegation, according to the Procedural Guidance Message, the recruit should have been interviewed before departing for BMT. While there is some truth to what he said, there was a generous amount of “fluff” that could/should have been identified. The first sergeant should have personally interviewed the recruit to ascertain all the facts and gain a better understanding of what had taken place, especially since this was his first allegation in over three years of recruiting, before suggesting it should be an OSI situation. He should have been contacted for an interview and both his immediate and production supervisors should have been notified of the allegation. It appears there was never any intention to handle the allegation at the lowest possible level. After several months with no updates on the investigation, he found out on his own that he should contact the ADC and seek guidance. What is most troubling about two of his main accusers, the recruit and his mother, is that he communicated with both parties during the recruiting process and never detected any frustration whether via text messages, phone calls or face-to-face meetings even after his normal duty hours and some weekends. He regrets his unwise decisions; however, there are many instances of misconduct and/or unprofessionalism that exist within the recruiting career field that are hidden from the leaders by a “network of wrongdoers” who protect each other, as Air Force Recruiting is often referred to as “a good ole boy club.” He is not attempting to rebel or abide by “his own rules,” but although the “bro hug” can be unprofessional conduct as it falls under sexual harassment, it can also be viewed as a sign of mutual respect as was the case with his recruits. It is performed in a mutual motion very much like we have witnessed when our Commander- in-Chief is greeted by other world leaders and individuals of distinction. He has been the recipient of a “good game” tap on the buttocks and an embrace, both on and off sports surfaces since being in the Air Force. His unwise decisions have received emphasis and the things that he has done correctly, even going above and beyond the call of duty, in contrast, has barely been mentioned. He understands that an Article 15, NJP is rarely set aside, unless it is in the best interest of the Air Force. However, he believes the Air Force would benefit from him being restored to his proper rank because he knows how to inspire and motivate others in three areas of concentration: on-the-job, church, and in the local community In further support of his appeal, the applicant provides a personal statement, a copy of AF IMT 2096 and various other documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit D. 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 an error or injustice. While the applicant asserts that the proper procedures were not followed, he has not provided any evidence to show that the actions taken by his commander were not done in accordance with established policy. The evidence reflects that after considering all matters presented by the applicant, his commander determined that he had committed the alleged offense and made the decision to impose NJP under Article 15, UCMJ. The Article 15 was found legally sufficient and it appears the applicant was provided all of the rights to which he was entitled, including the right to refuse the Article 15 and demand trial by court martial. By waiving his right to trial by court-martial, he accepted the commander’s evaluation of the evidence and his judgment as to his guilt or innocence and punishment. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. In the absence of evidence the information used as a basis for the Article 15 was erroneous, or there was an abuse of discretionary authority, we find no basis to recommend granting the relief sought in this application. 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 AFBCMR Docket Number BC-2013-04651 Executive Session on 29 Jul 14, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Sep 13, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 6 Nov 13. Exhibit C. Letter, SAF/MRBR, dated 14 Nov 13. Exhibit D. Letter, Applicant, dated 12 Dec 13.