RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-05399

	COUNSEL: NONE
	
	HEARING: YES

APPLICANT REQUESTS THAT:

Her nonjudicial punishment (NJP) received in 2015 be removed from her Officer Selection Record (OSR) and all records related to the NJP action be removed from her records.

APPLICANT CONTENDS THAT:

She received an Article 15 for fraternization and adultery when she was a second lieutenant.  The commander at the time determined the Article 15 should be placed in her OSR.  She believes this to be unjust punishment.  She takes responsibility for her actions; however, considering the circumstances, she believes the overall punishment she received is unjust.  Her request and plea is for the Article 15 to be removed from her OSR and all records related to this incident be cleared so that she may be allowed to continue to serve in the Air Force without any permanent negative/derogatory impact on her record.  Some factors to be considered and reasons why she believes the record to be unjust are outlined below:

	She was aggressively pursued by the Chief involved and failed to put a stop to it before it crossed professional lines.  There were warning signs early on she should have paid closer attention to, including very suggestive comments and inappropriate compliments. At one point, he quickly grabbed her Common Access Card (CAC) to get her birthdate when she would not reveal her age.  He confided in her about his marital problems and pending divorce, which was later revealed in the investigation to be false.  

	With regard to the charge of fraternization, The Military Commander and the Law (page 329) states:

Corrective action should normally be the least severe necessary to terminate the unprofessional aspects of the relationship.”  It further states ,“Counseling is often an effective first step in curtailing unprofessional relationships”...”An order to cease the relationship, or the offensive portion of the relationship, can and should be given. Any order should be in writing, if possible.”  

She voluntarily terminated the relationship on her own accord several months before she admitted to having the affair.  Consequently, there was never a need for counseling or a cease and desist order since the relationship was long over when it came to light, and she had already discontinued all contact.  She willingly cooperated throughout the entire process; including speaking to both her commander and his, providing multiple statements to OSI, and consenting to all requested searches.  

	Additional pertinent reference from the Manual for Courts-Martial regarding adultery: 

When determining whether adulterous acts constitute the offense of adultery under Article 134, commanders should consider the listed factors. Each commander has discretion to dispose of offenses by members of the command. As with any alleged offense, however, under RC.M 306(b) commanders should dispose of an allegation of adultery at the lowest appropriate level.  As the RCM 306(b) discussion states, many factors must be taken into consideration and balanced, including, to the extent practicable, the nature of the offense, any mitigating or extenuating circumstances, the character and military service of the military member, any recommendations made by subordinate commanders, the interests of justice, military exigencies, and the effect of the decision on the military member and the command.  The goal should be a disposition that is warranted, appropriate, and fair. 

Her Officer Performance Report (OPR) was scheduled to close out the same week the investigation began.  The draft OPR ranked her “#1/100 2nd LTs in the wing,” which was a testament that until she brought this incident to light, her work performance and all other aspects of her conduct were in the highest regard among wing leadership.  In addition, she provides a list of accomplishments post NJP action.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is currently serving on active duty in the Regular Air Force in the grade of captain.  

On 17 Apr 15, the applicant was notified of her commander’s intent to impose NJP for fraternization in violation of Article 134, UCMJ, and adultery in violation of Article 134, UCMJ.  Her misconduct occurred between 1 Jul 14 and 1 Nov 14 in which the applicant fraternized with a chief master sergeant (CMSgt).  The applicant waived her right to a court-martial, accepted NJP, provided written matters to her commander, and requested a personal, non-public appearance before her commander.  After considering all the matters presented, the commander found the applicant had committed the offenses alleged, and imposed a punishment of a suspended forfeiture of $1,527 pay per month for two months and a reprimand.  She did not appeal the findings or punishment of the NJP, but did submit matters pertaining to the decision to file the NJP in her OSR.  Her commander decided to file the NJP action in her OSR.  After legal reviews, the case was found legally sufficient.  

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

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the applicant’s request to remove her NJP action from her records.  Without good case, the commander’s discretion should generally not be reversed or otherwise changed on appeal by the Board.  Absent a legal error or injustice, the commander’s decision should not be disturbed.  There is no evidence, nor does applicant allege the decision to proceed with NJP or the punishment decision were beyond the commander’s authority and discretion.  Those decisions were not arbitrary or capricious and should not be set aside by the Board.

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 23 Aug 18 for comment (Exhibit D), 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 recommendation of AFLOA/JAJM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

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.

The application was adjudicated without a personal appearance.

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-2017-05399 in Executive Session on 26 Sep 18:

, 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 12 Nov 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 26 Jun 18.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 23 Aug 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 pertaining to Docket Number BC-2017-05399.