RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02728

	COUNSEL: NONE
	
	HEARING: NO

APPLICANT REQUESTS THAT:

1.  His Letter of Admonishment (LOA) issued on 18 Mar 16 be removed from his records. 

2.  His Non-judicial Punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) imposed on 23 Jan 17, be declared void and removed from his records.

APPLICANT CONTENDS THAT:

The actions taken against him were illegal, unreasonable, arbitrary, and inconsistent.  He was a victim of reprisal for stating his objections to repeated and verifiable misconduct by his superiors.  Additionally, he was deprived adequate legal assistance regarding both actions taken against him.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant submitted his applicant while serving in the Regular Air Force in the grade of captain.  

According to the Automated Case Tracking System (ACTS), on or about 5 Oct 15, the applicant submitted an application to the wing commander to initiate a White Heritage observance month on the installation.  On or about 16 Oct 15, the wing commander denied the application.

On or about 26 Oct 15, the applicant filed a Military Equal Opportunity complaint against the wing commander that was subsequently unsubstantiated.  

On or about 12 Jan 16, the applicant filed a second application and on or about 4 Feb 16, the wing commander denied the second application.

On or about 8 Feb 16, the Equal Opportunity office notified the applicant of the denial and referred him to AFMC/A1K for further inquiries.  

On or about 22 Feb 16, after receiving no response from AFMC/A1K, the applicant emailed the wing commander asking what he needed to do to get his application approved.  The wing commander emailed the applicant’s commander indicating the applicant’s email to him was inappropriate.

According to documentation provided by the applicant, on 18 Mar 16, he received a LOA for being disrespectful towards the wing commander in an email.

According to the AF Form 102, Inspector General Personal and Fraud, Waste & Abuse Complaint Registration, on 12 Aug 16, the applicant filed an IG complaint alleging two of his superior commissioned officers made false official statements with the intent to interfere with a discrimination investigation.  

According to the Automated Case Tracking System (ACTS), on 17 Aug 16, AFMC/IG conducted a review of the complaint and on 25 Aug 16, transferred it to AFOSI/IG, indicating the issues were criminal allegations and should be referred to the Air Force Office of Special Investigations (AFOSI) or Security Forces (SF).  

On 29 Nov 16, AFOSI/IG conducted a review of the complaint and transferred it back to AFMC/IG indicating there were no issues in the complaint that rose to the level of an AFOSI investigation.

On 7 Dec 16, AFCM/IG conducted a review of the complaint and transferred it to AFNWC/IG for analysis.  

On 23 Jan 17, AFNWC/IG found the applicant’s complaint of alleged dereliction of duty, abuse of authority and reprisal were not substantiated.  

On 23 Jan 17, the applicant received an Article 15 for disrespect to his superior commissioned officer, in violation of Article 89 of the Uniform Code of Military Justice (UCMJ).  His punishment consisted of forfeiture of $2,828 pay per month for two months and a reprimand. 

On 23 Jan 17, the applicant acknowledged receipt of the Article 15 punishment and, on 30 Jan 17, elected to appeal the punishment and submit matters on his behalf.

On 31 Jan 17, the applicant’s commander denied his appeal.

On 7 Feb 17, the appellate authority also denied the applicant’s appeal and elected to file the Article 15 in his Officer Selection Record (OSR).

On 8 Feb 17, the Article 15 was reviewed and determined to be legally sufficient.

On 10 May 17, AFNWC/IG dismissed the applicant’s case indicating the applicant did not bring forth credible evidence of a violation of law, instruction, regulation, or policy.

On 30 Apr 18, the convening authority published General Court-Martial Order No. 12.  The Order states the applicant pled not guilty to one charge and four specifications of disrespect toward his superior commissioned officer (Article 89); one charge and specification of disobeying a lawful order (Article 90); one charge and specification of conduct unbecoming an officer and gentleman (Article 133), and an additional charge and specification of disrespect toward his superior commissioned officer (Article 89).  He was found guilty of all charges and specifications and sentenced to a dismissal and reprimand.

According to the AF Form 899, Request and Authorization for Permanent Change of Station – Military, on 11 May 18, the applicant was placed on excess leave pending appellate review of his punitive discharge.

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

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends denying the application indicating the applicant failed to provide evidence the LOA and Article 15 were unjust or issued in error.  The applicant’s commander and director were within their authority to issue the applicant a LOA and an Article 15 in violation of Article 89, UCMJ.  Per the provided document from DoD/IG, it was determined the applicant’s reprisal complaint did not warrant further investigation, therefore the LOA and Article 15 were not issued out of reprisal.  

AFI 36-2907, Unfavorable Information File (UIF) Program, dated 26 Nov 14, paragraph 4.1.  Who Can Use Counseling, Admonitions, and Reprimands states, “Commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands. These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission.  This includes issuing administrative counseling, admonitions, and reprimands to reservists who commit an offense while in civilian status.”  The complete advisory is at Exhibit C.

AFLOA/JAJM recommends denying the applicant’s request to remove the Article 15 action indicating there is no legal basis to set aside the action.  Before deciding to impose NJP, the commander would have been aware that certain nonpunitive disciplinary measures, including counseling and reprimands, were available.  The commander, at the time of the NJP, had the best opportunity to evaluate the evidence in the case and to determine what action would best maintain good order and discipline and promote a positive behavior change in the applicant.  

Additionally, the applicant contends his emails, which formed the basis of the two specifications of disrespect towards a superior commissioned officer, constituted protected communications pursuant to the Military Whistleblower Protection Act (MWPA), 10 U.S.C. § 1034.  Under the MWPA, service members who make "protected communications" to certain individuals or organizations, including to individuals in the service member's chain of command, regarding the violation of a law or regulation, are protected from retaliation for such communication.  Relevant to the facts here, a "protected communication" includes a communication in which the service member complains of, or discloses information the member reasonably believes constitutes evidence of, a violation of a law or regulation, gross mismanagement, or abuse of authority.

The emails constitute a significant departure from the decorum expected of all military members towards their superior commissioned officers.  Moreover, the emails do not allege a violation of law or regulation.  Finally, the emails do not disclose information the applicant could reasonably believe constitutes evidence of gross mismanagement or abuse of authority.  Therefore, the applicant's emails do not constitute protected communications under the MWPA.

The commander's ultimate decision to impose NJP were based on the evidence of the case, including the extenuating and mitigating information provided by the applicant, and his punishment decision was well with the limits of his authority and discretion.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 15 May 18 for comment (Exhibit E), and the applicant replied on 10 Jun 18.  In his response, he states JAJM suggests that his e-mails to the commander (which were the subject of the Article 15 action in question) do not allege a violation of law or regulation.   However, his e-mails clearly allege that his “zero tolerance” policy was dishonest and inconsistent with his previous actions, and was therefore a false official statement in violation of UCMJ Article 107, “False Official Statements.” 

The commander maintains a racially discriminatory work environment in violation of AFI 36-2706, paragraph 1.1.1.  The commander has taken and will take reprisal against anyone who accuses senior-ranking officers of misconduct.  Reprisal and intimidation to prevent whistleblowing are at odds with the Military Whistleblower Protection Act (MWPA) and AFI 90-301, paragraph 2.1.1, which states that military members have a duty to report violations of law, injustices, etc., through supervisory channels starting at the lowest level. The commander has submitted and will submit false statements in order to interfere with adverse administrative proceedings—a violation of UCMJ Article 134, “Wrongful Interference with an Adverse Administrative Proceeding.”

  The AFNWC/IG told him that she agreed it was reasonable for him to believe that his chain of command were attempting to intimidate him when he received the LOA.  Additionally, while JAJM states he has produced no evidence, beyond his bare assertions, that a variety of Air Force agencies and his chain of command abandoned him, he believes the 26 attachments he provides with his original memo to the Board, constitutes sufficient evidence beyond his assertions.  The Article 15 he received was arbitrary, inconsistent, and unjust.  He was deprived of competent and timely legal counsel concerning the Article 15 action, evidenced by the emails he provides indicating how busy his chain command kept him during the week he was supposed to be dealing with the Article 15 issue.  

In addition, JAJM’s argument that his commander was in a unique position to evaluate the evidence at the time he was issued the Article, is false.  There was nothing unique about the commander’s vantage point in January 2017 over that of the Board now.  Lastly, JAJM’s comment that the commander’s punishment decision was well within the limits of his authority and discretion is irrelevant, as he does not suggest the commander lacks the authority.  Rather, he claims that in his case, the finding of guilty was illegal under MWPA, unjust, and inconsistent. The applicant’s complete response is at Exhibit F.

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 and injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and AFLOA/JAJM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board concludes the applicant has failed to sustain his burden of proof that he has been the victim of an error on injustice.  In view of the above and in the absence of persuasive evidence to the contrary, the Board finds no basis to recommend granting any of the relief sought in this application. 

4.  The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC § 1034).  The Board notes the applicant filed an IG complaint; however, AFNWC/IG, reviewed the allegations, and the findings were unsubstantiated, to include alleged reprisal.  Nevertheless, in accordance with 10 USC § 1034, the Board reviewed the evidence of record to reach its own independent determination of whether reprisal occurred. Based on the Board’s review, they do not conclude the applicant has been the victim of reprisal.  The Board states the applicant has failed to establish that the actions to issue him a Letter of Admonishment (LOA) on 18 Mar 16 or the Non-judicial Punishment (NJP) under Article 15 of the UCMJ imposed on 23 Jan 17, are in reprisal for his making a protected communication.  Therefore, the Board does not find the applicant has been the victim of reprisal pursuant to Title 10, U.S.C. Section 1034.

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-2017-02728 in Executive Session on 18 Jul 18:

	, Panel Chair
	, Member
	, Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 7 Jun 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 12 Dec 17.
Exhibit D:	Advisory opinion, AFLOA/JAJM, dated 3 May 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 15 May 18.
Exhibit F:	Email, Applicant, dated 10 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 for Docket Number BC-2017-02728.