RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03163

XXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  The Letter of Reprimand (LOR), issued on 29 Jun 17, along with the accompanying Unfavorable Information File (UIF) be declared void and removed from his records. 

2.  His Officer Performance Report (OPR) rendered for the period 29 Jan 17 through 29 Jun 17, be removed from his records.

3.  His Promotion Recommendation Form (PRF) with the recommendation of “Do Not Promote” be removed from his records.

4.  His negative security clearance recommendation to the DoD Central Adjudication Facility (CAF) be rescinded and his top-secret clearance be restored.   

APPLICANT’S CONTENTIONS

The three allegations in the LOR, which include a false official statement on an old leave request, failure to report contact with a foreign national and foreign travel are untrue.  The first allegation was proven wrong and lined-out of the LOR, the second is not a clear violation of any AFI/Regulation, and he had previously received a Letter of Counseling (LOC) for the third allegation, thus punishing him twice for the same incident and a clear violation of the Uniform Code of Military Justice (UCMJ) Article 44, Former Jeopardy.  

In support of his appeal, the applicant provides a personal statement along with 14 attachments. The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force lieutenant colonel (O-5).

According to the documents in the applicant’s record and provided by the applicant:

	On 8 Jul 14, as shown in a screenshot from “LeaveWeb,” the applicant requested leave in the local area of Kaneohe, Hawaii from 9 Jul 14 through 20 Jul 14.  On 13 Jul 14, the request was updated to reflect overseas travel to Singapore from 9 Jul 14 through 13 Jul 14.   

	On or about 25 Jul 14, a memorandum from the applicant’s previous supervisor (the Division Chief of PACAF International Affairs), dated 7 Dec 17, indicates that the applicant was issued a Letter of Counseling (LOC) for an incorrect leave address and failure to report foreign travel.

	On 21 Aug 14, AFOSI Form 40, Air Force Office of Special Investigations Report of Investigative Activity, indicates that the applicant’s previous supervisor (PACAF Division Chief)  was interviewed and acknowledged that he was aware of the applicant’s unreported foreign travel and revoked the applicant’s access to classified information.  It also states that the supervisor took the applicant to the Special Security Office (SSO), to conduct training on proper reporting procedures. 

	On 26 Aug 14, AFOSI Form 40 documents an OSI review of the applicant’s PACAF Security Indoctrination Briefing, dated 9 Aug 11 and found that the applicant was aware of his responsibility to report contact with foreign nationals and unofficial foreign travel to the PACAF SSO. 

	On 30 Jan 15, AFOSI For 40, shows that the applicant was interviewed by OSI and states  that the applicant admitted that he did not identify the foreign contact because he was unaware of the specific reporting procedures.  In addition, when asked to provide his personal cell phone and to conduct a polygraph, the applicant exercised his Article 31 rights and the interview was terminated.  

	On 6 Apr 15, the applicant was notified that a security determination had been made to establish a Security Information File (SIF) and to suspend his access to classified information for failing to report contact with foreign nationals. On 13 Apr 15, the applicant responded to the notification of the SIF. 
	
	On 29 Jun 17, the Space and Missile Systems Center (SMC) vice commander issued the applicant an LOR for one violation of Article 107,  False Official Statement, and two violations of Article 92, Failure to Obey Order or Regulation, of the Uniform Code of Military Justice.  Specifically, he violated Article 107 between 9 Jul 14 and 20 Jul 14, when he had approved local leave in Hawaii, but flew from Honolulu, HI, to Narita, Japan on 9 Jul 14 and then returned to Honolulu, HI from Inchon, South Korea on 13 Jul 14.  In addition, on two separate occasions, he failed to report a relationship with a foreign contact.  

	On 17 Jul 17, the applicant submitted a response to the LOR and on 18 Jul 17, the commander determined that the LOR would remain in effect.  

	On 28 Jul 17, the applicant was issued a “Notification Regarding Officer Selection Record” memorandum, indicating that his rater was considering whether to file his LOR in his OSR.  On 3 Aug 17, the applicant responded to the notification and on 7 Aug 17, the applicant’s senior rater decided to file the LOR in his OSR.  

	On 31 Jul 17, the SMC commander issued the applicant a “Grant of Testimonial Immunity and Order to Testify” memorandum, which gave the applicant immunity to answer questions regarding allegations that he committed adultery and was derelict in his duties by failing to report his foreign contacts and travel.   

	On 31 Aug 17, AFOSI Forms 40, indicate that the applicant took a polygraph test and completed his interview with OSI. 

	On 25 Oct 17, the Report of Investigation (ROI) for period of report 11 Aug 14 to 31 Aug 17, was published by the OSI and found no indication that the applicant “engaged in espionage, sabotage, terrorism, or had contact affiliated with foreign intelligence.” 
	
	On 15 Feb 18, the 29 Jun 17 LOR was corrected and the words “and travel” on the last line of the first paragraph were crossed-out.  Both the applicant and the SMC vice commander initialed by the correction.  

	On 7 May 18, the applicant received a referral OPR for period of report 29 Jan 17 thru 29 Jun 17.   As noted in Section IX, Referral Report, the report was referred due to the 29 Jun 17 LOR, which he received for failing to timely report a foreign contact at his last duty station in 2014.  

	On 21 Jun 18, the applicant submitted an appeal to the OPR, but the commander determined that the OPR would remain a referral.  

	On 5 Nov 18, the SMC commander (the applicant’s Senior Rater) responded to a congressional inquiry from a US Representative of California regarding the applicant’s contention that he was being punished twice for the same issue.  In the response, the SMC commander indicates that the SMC vice commander revised the LOR to dispel any notion that the applicant was being punished twice for the same offense, but had “determined the severity of the misconduct (failure to disclose foreign national contacts) still warranted a reprimand.”  

	On 13 Dec 18, the SMC commander responded to an additional congressional inquiry to a US Senator in Florida and reiterated their stance that the revisions to the LOR should dispel the notion of double jeopardy.  

	On 31 Oct 19, the SAF/IGS Intake Determination states that the applicant filed a complaint with the Inspector General Hotline alleging that his Senior Rater violated Article 107 of the UCMJ by making false official statements in response to the congressional inquiries.  On 17 Dec 19, the complaint was dismissed because the Investigating Officer found no evidence that the applicant’s senior rater violated Article 107. 

For more information, see the excerpt of the applicant’s record at Exhibit B, the advisories at Exhibit C and F, the OSI Report of Investigation at Exhibit I, and the SAF/IGS Intake Determination at Exhibit J.

AIR FORCE EVALUATION

AFPC/DP2SSM, recommends denying the applicant’s request to remove the LOR and corresponding UIF.  In accordance with AFI 36-2907, Unfavorable Information File, Paragraph 4.1.3. Standard of Proof, “there is no requirement to prove any allegation beyond a reasonable doubt.”  The applicant’s commander had the authority to issue the LOR.   

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 7 Aug 19 for comment (Exhibit D), and the applicant replied on 6 Sep 19.  In his response, the applicant expresses his concern that the advisory opinion over-simplifies and incorrectly summarizes his case regarding the injustice and his requested corrections.  He does not claim that someone without authority administered the LOR, but the issues regarding the specific reasons for the LOR remain.  He has identified many errors and has proved that the preponderance of evidence does not prove any wrongdoing on his part, since the majority of the allegations are not applicable to the LOR.  Furthermore, the LOR in his records does not include his rebuttal, which is in violation of AFI 36-2907, paragraph 4.4.1, is another example that his chain of command has treated him unfairly, and tries to mute his response. 

In support of his response, the applicant provides many of the same documents included in his original response, but added his rebuttal to the LOR in question, along with a copy of his PRF.  The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

AFPC/JA, recommends partial relief to redact the language within the applicant’s LOR that references the false official statement.  However, there is sufficient evidence to support that the applicant was derelict in his duty to report his contact with a foreign national and the LOR is legally sufficient and was well within the commander’s discretion to issue.   

In reference to the false official statement, the applicant provided a memorandum from his supervisor at the time, who confirms his version of the events.  While, the SMC commander indicated in a response to a congressional inquiry dated 5 Nov 18 that the false official statement portion of the LOR had been removed, a review of the LOR shows that only the words “and travel” were struck from the last sentence of the LOR.  As such, the remaining portion of the LOR that discusses the false official statement, should also be removed (i.e. “A thorough investigation has shown that, between 9 July 2014 and 20 July 2014, you were approved local leave in Hawaii.  Government databases later revealed that on 9 July 2014 you flew from Honolulu, HI, to Narita, Japan.  On 13 July 2014, you returned to Honolulu, HI from Inchon, South Korea.  You gave a false official statement when you lied about your foreign travel in your leave request, in violation of Article 107 of the UCMJ.”). 

In regards to the applicant’s violation of Article 92, Failure to Obey an Order or Regulation, the applicant was derelict in his duty.  The applicant claims that he was unaware of any duty to report foreign contacts unless they were a suspected Foreign Intelligence Entity (FIE).  While his referenced contact was not one of these, during the time of his conduct, he held a Top Secret/Sensitive Compartmented Information (TS/SCI) clearance and in accordance with DoDM 5105.21, Volume 1, he was required to report “on-going contacts with foreign nationals.”  The applicant claims that when initially interrogated by OSI, the person was neither a long term acquaintance nor a FIE; however, the “Grant of Testimonial Immunity,” the applicant submitted with his application, indicates that he committed adultery with the foreign contact between 1 Jan 14 and 31 May 15.  As such, it is clear that the applicant did in fact have “on going contact” with a foreign national and failed to report such contact prior to his meeting with OSI on 30 Jan 15.  In addition, at the time he was indoctrinated into the TS/SCI program (9 August 2011), he would have been briefed on the requirements to hold a TS/SCI clearance, which would have included items such as the duty to report foreign contacts.   Moreover, according to the OSI report dated 21 Aug 14, submitted by the applicant, he received refresher training from the PACAF security office upon his return from his unreported travel to Singapore.  Based on the foregoing, there is sufficient evidence to support the applicant had a duty to report foreign contacts; knew or reasonably should have known of the duty; and was derelict in the performance of his duty by not immediately reporting on his on-going foreign contact.

The complete advisory opinion is at Exhibit F.

APPLICANT’S ADDITIONAL REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 31 Oct 19 for comment (Exhibit G), and the applicant replied on 29 Nov 19.  In his response, the applicant agreed with AFPC/JA’s determination that there exists a material error on the LOR referencing the leave address inaccuracy; however, he does not agree with their assessment that he was derelict in his duty to report a foreign national contact and that the action still warrants the LOR.  

In support of his response, the applicant includes a copy of his response to his referral OPR that explains how the local operating rules for PACAF are enforced differently than other major commands and he was operating within those local guidelines for reporting foreign nationals.  He also includes an excerpt from the Report of Investigation where his previous supervisor stated, “the unit did not always relay information or document foreign contacts to the security manager.” This further supports his contentions about the local rules for reporting foreign nationals.  The applicant’s complete response is at Exhibit H.

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 the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and AFPC/JA and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant has provided evidence that the portion of his LOR that references his false official statement had been previously addressed in a LOC, which is sufficient to justify removing the corresponding references from the LOR. However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice.  As such, the Board notes, that the applicant knew or reasonably should have known of his duty to report relationships with foreign contacts, especially given his position and his level of clearance.   Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the following statements be redacted from his Letter of Reprimand dated 29 June 2017:  

	“A thorough investigation has shown that, between 9 July 2014 and 20 July 2014, you were 	approved local leave in Hawaii.  Government databases later revealed that on 9 July 2014 	you flew from Honolulu, HI, to Narita, Japan.  On 13 July 2014, you returned to Honolulu, 	HI from Inchon, South Korea.  You gave a false official statement when you lied about 	your foreign travel in your leave request, in violation of Article 107 of the UCMJ.”

Regarding the remainder of the applicant’s request, the Board recommends informing the applicant 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-2019-03163 in Executive Session on 30 Jun 20:

, Panel Chair
, Panel Member
	, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 1 Jun 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 25 Jul 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 7 Aug 19.
Exhibit E:	Applicant’s response, dated 6 Sep 19. 
Exhibit F:	Advisory opinion, AFPC/JA, dated 30 Oct 19.
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, dated 31 Oct 19.
Exhibit H:	Applicant’s response, dated 29 Nov 19.
Exhibit I:	OSI Report of Investigation – WITHDRAWN. 
Exhibit J:	SAF/IGS Intake Determination – WITHDRAWN. 

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.