RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03436 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: The Article 15 imposed on 8 May 2012, be removed from her records. The Officer Performance Report, with the close-out date of 19 February 2013, be removed from her records. The Promotion Recommendation Form (PRF), dated 6 June 2014, be removed from her records. APPLICANT CONTENDS THAT: The Air Expeditionary Wing Commander failed to follow well- established Air Force Instructions in cases of alleged sexual assault in an attempt to keep the investigation within his immediate span of control. He unfairly and unequivocally used his command authority to ensure his desired outcomes in events based on gender bias and provided a gateway for false accusations of sexual assault against her. Per AFI 36-6001, Sexual Assault Prevention and Response Program, attachment 1, pg. 34, sexual assault is defined "as intentional sexual contact, characterized by use of force, physical threat or abuse of authority or when the victim does not or cannot consent. Sexual assault includes rape, nonconsensual sodomy (oral or anal sex), indecent assault (unwanted, inappropriate sexual contact or fondling), or attempts to commit these acts. Sexual assault can occur without regard to gender or spousal relationship or age of victim." An "ass-punch" as described in the complaint clarification meets the definition of sexual assault. The EO writes, "The complainant took the physical touching by the subject to be sexual in nature..." AFI 36-6001, Chap 2, Section 2C, para 2.21.1 and 2.21.2, and AFI 36-2706, Equal Opportunity Program Military and Civilian, Chap 3, Section 30, para 3.33, requires EO personnel to report any possible sexual assault to the Air Force Office of Special Investigations and Security Forces, and restricts EO from further pursuing an investigation. Yet, the EO never transferred the case to either AFOSI or SF, nor did EO consult with law enforcement on this matter. The OSI Detachment Commander and Security Forces Commander during the time of the complaints confirmed these allegations were never transferred nor were they or consulted on this matter (attachment 6). The wing Sexual Assault Response Coordinator was co-located with the wing EO, and she was not consulted (attachment 7). Additionally, an unrestricted report of sexual assault requires the establishment of a multi-disciplinary case management group to meet monthly consisting of multiple base agencies per AFI 36-6001, Chap 2, Section 2A, para 2.7 (attachment 3). Again, this did not occur. The AFI requirements to include base agencies/organizations were completely disregarded in an effort to keep the investigation within the wing commander's immediate span of control. Based on Freedom of Information Act requests, the only airmen on base who were consulted or contributed to the case were the technical sergeant in the EO office, the wing judge advocate and the paralegal; all of whom worked directly for the wing commander. The complaint clarification completed by the Wing EO technical sergeant was substantively flawed. Per AFI 36-2706, attachment 1, (attachment 4), to find an allegation substantiated, the "preponderance of the evidence which is of greater weight or which is more credible and convincing to the mind than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. The weight of the evidence supporting a particular fact is not to be determined by the sheer number of witnesses or volume of evidentiary matter presented, but rather by that evidence which best accords with reason and probability. The opportunity for knowledge, information possessed and manner of testifying are all relevant factors in determining the weight to be accorded to the evidence." The three allegations explored by the Wing EO were that the applicant 1) inappropriately touched technical sergeant G’s arm; 2) "ass-punched" technical sergeant G; and 3) inappropriately touched technical sergeant G on the leg when he voluntarily sat next to her during a Wing Commander's Call in the base theater. The EO found that no one witnessed the alleged inappropriate touching, but that it is "farfetched to believe that the complainant would fabricate the incident ... when he had no motive at the time to do so," when in fact technical sergeant did have motive. Additionally, the EO repeatedly stated in his report that, "the subject elected not to make a statement," then appears to make the leap in logic that she must have committed the acts. She elected to invoke her Article 32 rights and not immediately provide a statement or answer questions. Securing the advice of an Area Defense Counsel was very difficult; the ADC was in Qatar and she was deployed in Kuwait. The EO completed his investigation in four days. She did not have the opportunity to provide a statement or evidence on her behalf. The EO told the ADC Paralegal that he was being instructed by the Wing Commander to wrap up the investigation as a decision had more or less been made. The statements against her were withheld during the entire Article 15 process. It was only after a request through the Freedom of Information Act, she was able to see the full extent of the allegations. AFI 36-2706, para 3.20.1, pg. 54 (attachment 4) defines credible evidence "as evidence that is believable, confirmed, corroborated, etc." The EO clearly states there were no witnesses, but he still chose to substantiate each allegation based on speculation and wild extrapolation. The technical sergeant who filed the EO complaint against her had an ulterior motive. The technical sergeant knew she was displeased with his duty performance and filed the complaint three days after she informed him they needed to schedule his performance feedback. Filing the compliant was his way to disrupt the performance feedback and undermine her credibility. The Wing Commander discriminated against women and contributed to a hostile work environment. The commander conducted a Commander Directed Investigation on a male field grade officer after he was accused of making sexually explicit remarks about female airmen. The commander brought in an impartial party who he had no influence over and who outranked the accused. The commander made many chauvinistic comments to her and other female field grade officers. He verbally abused a female grade officer while under duress for being stopped and held against her will by a Foreign National Security Guard. The officer was extremely upset about the commander’s treatment towards her. The commander may have been informed of her contact with the Inspector General in reference to the commander’s unfair and harassing treatment. However, it was not until after the sexual assault charges did the IG chose to write a report. (attachment 13.) She asks the Boards consideration of the facts and hopes the Board will see the unfair and biased treatment toward female field grade officers. After reviewing the facts, remove the Article 15, UIF and correct her OPR and PRF. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a former member of the Air Force Reserves. On 7 May 2012 a formal Equal Opportunity (EO) complaint was filed against the applicant for sexual harassment. The EO report was completed submitted to the legal officer for review on 10 May 2012. The report was found legally sufficient and legal concurred with the substantiated findings of sexual harassment on 13 May 2012. On 9 May 2012, she was notified of her commanders intent to punish her under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully touching technical sergeant G on his buttocks with her hand, in violation of Article 128 (UCMJ), and conduct unbecoming of and officer and gentlemen by repeatedly touching her subordinate after being informed that he did not want to be touched, creating an intimidating and hostile work environment, in violation of Article 133 (UCMJ). On 13 May 2012, the applicant acknowledged her commanders intent, noted that she consulted counsel, waived her right to trial by court-martial and attached a written presentation for her commander’s consideration. She did not request a personal appearance. On 15 May 2012, the commander found that she had committed one or more of the offenses listed. As a result, punishment of forfeiture of $3,580.00 pay, forfeitures in excess of $1000 pay per month for 1 month was suspended and a reprimand was imposed. On 18 May 2012, the applicant appealed and submitted written matters. On 29 May 2012, the appeal was denied. On 19 February 2013, she received a referral OPR. The rater noted that she received an Article 15 while deployed for inappropriate physical contact with subordinate. On 1 April 2013, the reviewer noted that he considered the applicant’s comments to the referral OPR and concurred with the raters assessment. The applicant was assigned to the Retired Reserves effective 4 June 2015 in the grade of major. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which is attached at Exhibits C and D. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. The application was submitted in a timely manner and the merits should be considered by the Board. The applicant had the opportunity to make her arguments to her commander and the appellate authority as part of the Article 15 process. The commander and the appellate authority were in the best position to hear such factual arguments. Punishment decisions are within the discretion of the commander imposing punishment. The commander should consider the unique facts of each case, the offense committed, and the individual being punished. In this case, the commander exercised his discretion and we see no error or clear injustice that would warrant reversing the commander's decision. Nonjudicial punishment (NJP) is authorized by Article 15, UCMJ, and governed by the Manual for Courts-Martial (Part V) and AFI 51-202, Nonjudicial Punishment. This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. Service members first must be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander's intent to impose the punishment. The member may consult with a defense counsel to determine whether to accept the NJP or demand trial by court-martial. Accepting the proceedings is simply a choice of forum; it is not an admission of guilt. NJP is also not, when imposed, a criminal conviction. A member accepting Article 15 proceedings may submit written matters to, and have a hearing with, the commander imposing the punishment. The member may have a spokesperson at the hearing, may requests that witnesses appear and testify, and may present evidence. The commander must consider any information offered by the member and must be convinced by reliable evidence that the member committed the offenses before imposing punishment. Members who wish to contest their commander's determination or the severity of the punishment imposed may appeal to the next higher commander. The appeal authority may deny the appeal altogether if the appeal authority agrees with the action taken or may remove or modify the Article 15 if he or she disagrees in whole or in part with the action. That said, a commander considering a case for disposition under Article 15 exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extent of punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause. In this case, the applicant was accused of dereliction of duty, in violation of Article 92, UCMJ, and conduct unbecoming an officer and a gentleman, in violation of Article 133, UCMJ, both for inappropriate touching of an enlisted subordinate. The punishment, in part, included forfeiture of $3,580.00 in pay, with the portion in excess of $1,000.00 pay per month for one month suspended though 14 November 2014, after which time it was to be remitted without further action and a reprimand. On 13 May 2012, on the “Record of Nonjudicial Punishment Proceedings,” AF Form 3070C, the applicant indicated she had consulted an attorney and attached a written presentation for consideration. On 15 May 2012, the applicant’s commander annotated that he considered the evidence, including the matters she presented, and found she committed an offense. On 18 May 2012, the applicant took advantage of her right to appeal the Article 15 decision in writing, which was denied by both the applicant’s commander and the appellate authority after considering all of the matters in her appeal. On 30 May 2012, the applicant’s commander advised her that the NJP would be placed in her officer selection record (OSR). The NJP received legal reviews from the both the wing level staff judge advocate (SJA) and the general court martial convening authority legal office; no irregularities were noted. As a result of applicant’s NJP, both her OPR and her PRF make reference to the NJP action, and for this reason her commander noted she did “not meet standards,” and that she should not be promoted (respectively). It is noteworthy that one of the alleged UCMJ violations (Article 128) allegedly committed by the applicant was stricken from the NJP, thus showing that the NJP process received deliberation from the applicant’s chain of command. The applicant contends her commander failed to follow instructions on sexual assaults in accordance with AFI 36-6001, Sexual Assault Prevention and Response (SAPR) Program, and AFI 36-2706, Equal Opportunity Program, Military and Civilian, and those that were followed (including the CDI) were not well- executed. Granted, there is a fine line between a sexual assault case and sexual harassment case. It appears here, however, that the case was appropriately treated as a case of sexual harassment under AFI 36-2706, rather than a sexual assault under AFI 36-6001, and that proper procedures for sexual harassment allegations were followed. Indeed, the specification nearest a sexual assault was eventually “dismissed” during the nonjudicial punishment process. Though there was a dearth of witnesses to some of the allegations, the investigation considered these factors as well as the credibility of those making the allegations and gave an opinion as to whether the case should be substantiated. The commander, given the evidence he was given in the process of the nonjudicial punishment proceedings, further evaluated the credibility of the allegations and witnesses and issued the punishment he believed appropriate based thereupon. The applicant further contends the complainant had “ulterior motives,” namely he wished to avoid a poor performance evaluation. This could be true if the theory is correct that the applicant intended to give her subordinate a substandard EPR/no decoration, the NCO knew this, and as a way to prevent this unsatisfactory evaluation the NCO filed a sexual harassment claim first, so as to set up a retaliation/retribution defense. This argument seems tenuous. Her commanders/supervisors were in the best position to evaluate the evidence in the matter and were closer to the facts of the case. The applicant’s commander discriminated against women and created a hostile work environment. The applicant is free to file a claim of hostile work environment through the appropriate channels, but this should not affect her current NJP, i.e., if she sexually harassed a subordinate by inappropriate touching she should still receive punishment. Whether this is an Article 15 or an LOR is debatable, however, an LOR would have generated a UIF, which likely still would have prevented her promotion and receipt of an OPR that met standards. There was no error or injustice with the Article 15 process. The complete AFLOA/JAJM evaluation is at Exhibit C. ARPC/PB recommends the OPR and PRF be removed from the applicant’s records. The application was timely filed. The applicant has not exhausted all administrative avenues for removal or correction of the OPR and PRF. The applicant was considered, but not selected, by the CY14 USAFR Participating Reserve (PR) Line and Non-line Lieutenant Colonel Promotion Selection Board which convened on 9 June 2014. After review of the applicant's records, it was determined the OPR was not processed IAW AFI 36-2406, Officer and Enlisted Evaluation Systems, dated 2 January 2013, by the unit when they failed to complete block V, which should contain comments from the reviewer and should have been signed by the reviewer. If the board disagrees with HQ AFLOA/JAJM's recommendation to deny relief and removal of the Article 15, the OPR and PRF should be removed the applicant should be considered for promotion by a Special Selection Board in lieu of the CY 14 USAFR Line and Non-line PR Lieutenant Colonel Promotion Selection Board. The complete ARPC/PB evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant states while AFLOA/JAJM recommends that relief should be denied because the applicant made a choice of forum in accepting nonjudicial punishment, and to the extent she could have put the government to its burden of proof in a trial by court-martial, challenge the government's witnesses, or provide countervailing evidence of her own, she waived that right. Ordinarily, this advice would be correct. This is not an ordinary case. To be effective a waiver of court-martial must be voluntary, knowing and intelligent, Fairchild v. Lehman, 814 F.2d 1555, 1558::59 (Fed. Cir. 1987) and, in the case of nonjudicial punishment, a servicemember must be afforded the effective assistance of counsel in making that decision. United States v. Booker, 5 M.J. 238 (C.M.A. 1977). Only independent counsel is effective to vindicate the servicemember's election in this case, and failure to provide access to counsel in such a way as to provide meaningful and effective assistance fatally taints the nonjudicial punishment, and thus any collateral consequences flowing from it. United States v. Espinosa, 789 F.Supp.2d 681, 689-90 (E.D. Va. 2011). In this case, the applicant never received the assistance of certified counsel. What she got instead was first to be handed off from one defense counsel involved in a court-martial to another, neither stationed at her base, and then for an E-6 (technical sergeant) paralegal to essentially assume the role of defense counsel. It was he who provided all input to her response and who sent her templates and boilerplate advice that she could have gotten on-line. There is no evidence that any trained military defense counsel actually reviewed the facts in this case, made judgments as to credibility, fully apprised her of her rights, including the right to review the evidence against her before making her decision, reviewed the government's evidence or assisted her in submitting matters. In fact, there is no evidence that the ADC personally helped her at all in this matter. The only actual direct contact the applicant ever had with the area defense counsel was by telephone a few minutes during counsel's dinner break while he was defending a court-martial at another installation. The appeals themselves were prepared, it appears exclusively, by the defense paralegal, but even if counsel had been involved at that stage, the forum decision was already made. In fact, the final decision rejecting her appeal was not communicated to her, but apparently to the ADC office, who did not notify her until she called to check. In Espinosa the Court overturned the BCMR's refusal to remove an Article 15 as an abuse of discretion based solely upon the fact that defense counsel did not thoroughly or accurately advise the client. Here, there is no evidence that defense counsel ever actually gave any substantive· advice at all, much less bad advice. Espinosa is no outlier, but is born of an unassailable pedigree. Both the Court of Appeals for the Armed Forces (then the Court of Military Appeals) in Booker and the Court of Appeals for the Federal Circuit in Fairchild held that the failure to provide effective assistance of counsel is so fundamental an error as to nullify nonjudicial punishment imposed without it. The Courts have spoken with one voice-the Article 15 must be rescinded. ARPC/PB writes in its memorandum that even if the Board denies relief on the Article 15, it recommends that the applicant apply for the removal of her OPR through the Evaluation Reports Appeals Board, because "it was determined the OPR was not processed in accordance with AFI 36-2406." They write further that if the Article 15 is removed, relief should entail a Special Selection Board in lieu of the CY 2014 USAFR Line and Nonline PR Lieutenant Colonel Promotion Selection' Board. We ask the Board to disregard the advice of JA because the election of forum was not knowing, intelligent, and voluntary; to remove the record of nonjudicial punishment and the OPR referring to it; and to order the convening of a Special Selection Board. The applicant’s complete response, with attachments, is at Exhibit G. 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. We took notice of the applicant’s complete submission, to include counsel’s response, in judging the merits of the case. However, we agree with the opinion and recommendation of the Military Justice Division and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice with regard to the processing of her Article 15. The applicant contends that regulations were not followed with regard to the EO complaint, that her subordinates were retaliating against her and that her commander discriminated against women creating a hostile work environment and therefore, her Article 15 should be removed. Notwithstanding the applicant’s view, we are not persuaded by the evidence that the actions taken against the applicant in this case were arbitrary, capricious or not a reasonable response to the applicant’s offense. Through counsel, the applicant also contends that she did not receive the assistance of certified counsel as such; the Article 15 must be rescinded. During the Article 15 process, the applicant noted on the AF Form 3070, Record of Nonjudicial Punishment Proceedings (Officer) that she did, in fact, consult counsel regarding her rights during the Article 15 process. Through counsel, the applicant states that she spoke with the Area Defense Counsel prior to accepting the Article 15 forum. Although the applicant maintains the Area Defense Counsel was not involved in the process, the evidence submitted is insufficient to overcome her annotation that she consulted counsel during the processing of the Article 15. AFI 51-202, Nonjudicial Punishment, para 3.12.2 states the member has the right to consult a lawyer before making any decisions, and a lawyer may assist the member throughout the proceedings. Accordingly, we are satisfied the applicant was counseled regarding her rights to the Article 15 process. In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority. We do not believe there is such a showing here. Additionally, the evidence reflects that after considering the matters raised by the applicant, the commander determined she committed one or more of the offenses alleged, crossing out the reference to violation of Article 128, UCMJ. There is no evidence the imposing commander or the reviewing authority abused their discretionary authority or that her substantial rights were violated during the processing of the Article 15 punishment. With regard to the applicant’s contention that the Wing Commander discriminated against women and contributed to a hostile work environment, the applicant has failed to submit clear evidence to prove this and did not provide any substantial evidence that a hostile work environment existed. Therefore, in the absence of evidence to the contrary, we find no basis to recommend removing the Article 15 from her records. 4. With regard to the applicant’s request to remove the OPR and PRF, we are not persuaded relief is warranted. We note the opinion and recommendation of ARPC/PB to remove the OPR citing the unit’s failure to complete block V of the OPR. According to ARPC/PB, block V should have contained comments from the reviewer and been signed by the reviewer. The record reflects the OPR was accompanied by a Letter of Evaluation (LOE) which contained the reviewer’s signature and notes the reviewer considered the applicant’s comments to the referral OPR. Therefore, we are satisfied the applicant’s referral OPR was properly considered by the reviewer, as intended by AFI 36-2406. In the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 5. 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2014-03436 in Executive Session on 1 December 2015 under the provisions of AFI 36-2603: The following documentary evidence pertaining AFBCMR Docket Number BC-2014-03436 was considered: Exhibit A. DD Form 149, dated 20 Aug 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 17 Nov 14. Exhibit D. Memorandum, ARPC/PB, dated 17 Dec 14. Exhibit E. Letter, SAF/MRBR, dated 6 Apr 15. Exhibit F. Letter, Applicant’s Response, dated 1 May 15, w/atchs.