RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02191

XXXXXXXX	COUNSEL: XXXXXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  He be restored to the rank of technical sergeant with a date of rank of 11 Apr 17, with back pay.

2.  Restore line number for, and promotion to, master sergeant in May 18.

3.  Remove record of Non-Judicial Proceedings (NJP).

APPLICANT’S CONTENTIONS

His reduction in rank was the result of legal error and violation of his due process rights.  First, the allegations were not supported by legally sufficient evidence to meet all required elements under the Uniform Code of Military Justice (UCMJ), to include establishing a statement was made with the intent to deceive.  Second, he was questioned regarding suspected misconduct and ordered to make statements without being read his rights, a clear violation of Article 31(b) and the 5th Amendment, that were improperly used against him.  As a result of the reduction in rank, and an unintended consequence, he will be separated from the Air Force due to high-year tenure.

NJP involved training for a deployment.  He incorrectly logged information regarding his training based on a misunderstanding of the Air Force Instruction (AFI).  He believed a mission he controlled met the requirement for live fire because the aircraft was carrying live fire ordinance.  The only thing that prevented actual weapons release was the pilot indicating he could not accomplish the live fire due to weather.  The pilot then performed a simulated attack, and the applicant believed the “run” could count as a control.  When concerns were raised during a meeting, where he was questioned without being advised of his rights, he responded with all the information he had regarding the training, and initiated a meeting with his command.  

Additional misconduct involved an allegation of dereliction of duty for controlling a training mission at night; specifically, he did not have a current Joint Terminal Attack Controller (JTAC) supervise the mission.  At the time of the action, he did not know his JTAC currency had expired one day prior, and did not intentionally violate requirements.  Furthermore, he reasonably relied on the order of a supervisor who had access to his currency records.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is a Regular Air Force staff sergeant (E-5).

On 5 Apr 17, the applicant was offered Article 15 (NJP) for one specification of dereliction of duty, in violation of Article 92, UCMJ; and two specifications of false official statements, in violation of Article 107, UCMJ.  Specifically, the NJP alleged the applicant, then a technical sergeant (E-6) and a JTAC, had willfully failed to refrain from operating live weapon controls without appropriate supervision and made two false official statements about the circumstances of a training exercise.  On 10 Apr 17, the applicant waived his right to a court-martial and accepted NJP. 

On 11 Apr 17, the commander found the applicant committed the alleged offenses and imposed punishment of reduction to the grade of staff sergeant with a date of rank of 11 Apr 17 and a reprimand.  On 19 Apr 17, the applicant appealed the NJP.  The imposing commander and Appellate Authority denied his appeal on 19 Apr 17.  Two legal reviews subsequently found the NJP action 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 application.  The applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  The applicant’s claims on evidentiary sufficiency fail to establish an error or injustice.  On the Article 92, UCMJ, violation, which alleged willful dereliction of his duty to “refrain from operating live weapon controls unless supervised by a Joint Terminal Air Controller,” the applicant asserts that he “was current until one day prior to the training at issue and that he was ordered to conduct the training by a supervisor/program manager with access to his currency.”  On the Article 107, UCMJ, violations, which alleged false official statements that he “controlled live rounds during a training exercise,” the applicant asserts that he “believed that the training exercise he controlled was consistent with a [live] fire exercise as outlined in [the governing Air Force Instruction].” 

A commander considering a case for disposition under Article 15, UCMJ, exercises discretion as to whether punishment is warranted and, when applicable, the nature and extent of the punishment.  Absent good cause, the Board generally should not overrule the exercise of that discretion.  The applicant’s commander, at the time of the NJP, had the best opportunity to evaluate the evidence in the case and determine the action that would best maintain good order and discipline. 

The commander’s decision to impose NJP and amount of punishment imposed were well with the limits of his authority and discretion.  On the Article 92, UCMJ, violation, it was within the commander’s discretion to dismiss the applicant’s claim of “an honest mistake” and conclude that the applicant’s dereliction had been willful.  On the Article 107, UCMJ, violations, it was within the commander’s discretion to favor the applicant’s initial admissions about giving false answers because he was “juggling a significant number of concerns and responsibilities prior to his upcoming deployment” over subsequent professions of belief that his statements were not false because the circumstances of the exercise purportedly satisfied the governing regulation.  Accordingly, corrective Board action based on the NJP’s evidentiary sufficiency is unwarranted.  The applicant asserts that his second Article 107, UCMJ, violation occurred after members of his squadron’s leadership questioned him without rights advisement.  Military appellate courts have recognized an “operational exception” to the rights advisement requirement of Article 31(b), UCMJ, in instances of “questioning focused solely on the accomplishment of an operational mission,” instead of “questioning to elicit information for use in disciplinary proceedings”; in a litigated case, the exception may have applied to the applicant’s statement. 

Even if the circumstances of the applicant’s statements warranted a rights advisement, his allegations would not render the NJP legally insufficient.  Federal precedent holds that the remedy provided in Article 31(d), UCMJ, for violations of a service member’s Article 31(b), UCMJ, right against compulsory self-incrimination does not apply to NJP proceedings.  Specifically, the United States Court of Appeals for the First Circuit held that … when an accused [service member] elects NJP in lieu of a court-martial, he benefits from the relative informality of NJP proceedings and the lessened severity of the potential punishments.  In exchange for those benefits, he trades away certain procedural protections.  The exclusionary remedy contained in Article 31(d) is one such traded protection.  Accordingly, the NJP contains no legal error on that issue.  Therefore, there is no basis to set aside any portion of the NJP. 

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Dec 19 for comment (Exhibit D), and the applicant’s counsel replied on 8 Jan 20.  Counsel argued again that the applicant denies intentionally violating Articles 92 or 107 of the UCMJ.  He maintains that any perceived misconduct was the result of an error of communication on what constituted a “live fire” exercise that he was to complete during training, and not because he was intentionally trying to deceive his command.  The pilot opted to abort the live fire, and as an enlisted member the applicant had no means of completing the live fire portion of the exercise if the pilot thought such a maneuver was unsafe.  Counsel’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.   After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board notes the applicant’s complete submission and the evidence of record in judging the merits of the case; however, the Board found no evidence of an error or injustice that occurred in the processing of the Article 15.  Based on the evidence, it appears the commander’s actions were within his authority and discretion and the applicant was afforded all of his due process rights.  Therefore, the Board concurs with the rationale and recommendation of AFLOA/JAJM and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In view of the above, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-02191 in Executive Session on 5 Feb 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 14 May 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 10 Dec 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 13 Dec 19.
Exhibit E:	Counsel’s response, dated 8 Jan 20.

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