RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04800

	COUNSEL: YES

	HEARING: NO

APPLICANT REQUESTS THAT:

1)	Her reduction to the grade of staff sergeant, awarded at the 20 May 14 nonjudicial punishment (NJP), be set aside;

2)	Her grade of technical sergeant be reinstated, effective 20 May 14; and,

3)	All rights, privileges, and benefits denied her be restored.  

APPLICANT CONTENDS THAT:

Through counsel, her reprimand and the allegations involved in her reprimand are not true representations of her character and integrity throughout her 13-year service.  She left work on 18 Mar 14 for a scheduled medical appointment to renew her prescription for depression and pain related to her Post-Traumatic Stress Disorder (PTSD) developed following a 2005 sexual assault.  Beforehand, when she informed the Command Post (CP) chief of the appointment, he imposed a requirement to have a senior controller relieve her, an imposition not required by policy or regulation.  She coordinated her relief with the CP superintendent but unfortunately, her relief did not report as agreed.  Even so, there was a senior controller present when she left for her appointment.  Under the totality of the circumstances, there was no dereliction of duty or leaving an appointed place of duty without authority.  

She was charged with both Article 92 (dereliction of duty) and Article 86 (leaving an appointed place of duty).  It should be noted that a specification is multiplicious with another if it alleges the same offense, or an offense necessarily included in the other.  Simply put, she could not have been derelict in her performance of duties if she was not there to perform them (by leaving her appointed place of duty, without authority, as alleged). 

Finally, a reduction in grade is one of the most severe forms of NJP and clearly, the reduction in grade was not warranted on a stellar technical sergeant with over 13 years of honorable and faithful service.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a permanently disabled retired Air Force staff sergeant.  

On 3 Jun 04, her commander notified the applicant she was being considered for punishment under Article, 15 Uniformed Code of Military Justice (UCMJ).  

On 7 Jun 04, her commander decided she violated Article 134 for wrongfully charging Federal Express shipping expenses for official government property of a value of $500.00 or less, for personal use.  

On 8 Jun 04, the servicing staff judge advocate provided legal review and found the record legally sufficient.   

On 7 and 14 Mar 14, according to documents provided by the applicant, she received two letters of reprimand.  

On 7 May 14, her commander notified the applicant she was being considered for punishment under Article 15 UCMJ.  

On 20 May 14, her commander decided she committed the following offenses: Article 86, without authority, go from her appointed place of duty; and Article 92, derelict in the performance of her duties.  Her punishment included a reprimand and a reduction in grade to staff sergeant.

On 9 Jun 14, the servicing staff judge advocate provided legal review and found the record legally sufficient.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C - E.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the application based on the issues raised by the applicant and corroborated by the CP Superintendent.  The applicant was afforded all procedural due process rights during the NJP proceedings and the charges were legally sufficient and warranted.  Her counsel alleges that the charges against her were multiplicious.  This allegation lacks merit in that the charges describe separate offenses with separate elements and the punishment imposed would be permissible for either offense.  As is set forth in the discussion to Rule for Court-Martial, “[o]rdinarily, a specification should not be dismissed for multiplicity before trial unless it clearly alleges the same offense, or one necessarily included therein, as is alleged in another specification.”  Here, the two charges included in the NJP do not allege the same offense and one charge is not the lesser included offense of the other.  

The issues raised by the CP Superintendent are more concerning, but do not affect the legal sufficiency of the NJP action or punishment.  In her memorandum, the CP Superintendent requests that the applicant be reinstated to Technical Sergeant on the grounds that the NJP was inaccurate and too severe. The CP Superintendent explains that the junior controller, who covered during the applicant’s absence, previously had covered day shifts for other senior controllers, including the CP Chief, and previously had been left alone on day shifts.  However, no matter whether these other incidents occurred, the fact remains that the CP Chief gave the applicant a direct order not to leave the CP unless a senior controller were present and she disobeyed that order.  In so doing, she also left her place of duty without authorization.  The complete advisory is at Exhibit C.

AFPC/Enlisted Promotions defers to the AFLOA/JAJM recommendation since they have no equity in the NJP decision.  The complete advisory is at Exhibit D.

The AFBCMR Psychiatric Advisor recommends denying the application since there is no nexus between the applicant’s misconduct and her PTSD.  The applicant developed PTSD as a result of a sexual assault that took place in 2005.  She initially presented for treatment in the fall of 2007, then, around 2009, when her symptoms were well controlled, the applicant discontinued regular appointments with the behavioral health providers.  However, she continued taking her psychotropic medications, primarily refilled by her Primary Care Provider (PCP).  According to her health records, the applicant’s PTSD stayed dormant until April of 2014, when she received the Article 15.  The applicant presented to the mental health clinic on 3 Apr 14 for an urgent appointment with complains of increased anxiety/overwhelming feelings associated with being “read my rights.”  The exacerbation of the applicant’s mental health issues happened after the fact and therefore cannot be used to determine the nexus between her misconduct and PTSD.  The complete advisory is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 15 Jun 18 for comment (Exhibit F), but has received no response.

THE BOARD CONCLUDES THAT:

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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendations of offices of primary responsibility and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  While the Board notes the AFLOA/JAJM advisory states the issues raised by the CP Superintendent are concerning, the Board further agrees that they do not affect the legal sufficiency of the NJP action or punishment.  Furthermore, the fact remains the applicant received a direct order not to leave the CP unless a senior controller was present and she disobeyed that order.  In so doing, she also left her place of duty without authorization.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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 Docket Number BC-2015-04800 in Executive Session on 1 Aug 18:

Panel Chair
Panel Member
Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 19 Oct 15.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 8 Jun 16.
Exhibit D:	Advisory opinion, AFPC Enlisted Promotions, dated 17 Jun 16.
Exhibit E:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 11 Mar 17.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 15 Jun 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.