RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-03988

XXXXXXXXXXXXX	COUNSEL:  XXXXXXXXXXXX

 	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

1.  His Letter of Reprimand (LOR) and Unfavorable Information File (UIF) be removed from his record.

2.  He be restored to the grade of master sergeant (MSgt/E-7).

APPLICANT’S CONTENTIONS

In a five-page legal brief, through counsel, the applicant makes the following contentions:

The Air Force made a material error of discretion by filing a LOR and UIF, ordering a reduction in rank, and failing to remove the documentation upon dismissal of the allegations against him.  Allowing these allegations to continue to appear in his record with no factual support or conviction has materially prejudiced him.

When he received the LOR, there were only mere allegations against him relating to a domestic violence incident.  Subsequently, his former commander used the state’s investigative report to reprimand him.  However, the LOR came 38 days after the allegations against him, even though he was not scheduled to appear in civilian court until Feb 16.  He does not challenge the commander’s authority to issue the LOR, but challenges that it was submitted and placed into an UIF prematurely because the allegations were not fully proven.  He was not convicted of a crime, and therefore his LOR does not accurately reflect the factual circumstances surrounding the events leading up to his retirement.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force technical sergeant (TSgt/E-6).  

On 13 Oct 15, the applicant received a LOR for a demonstrated lack of professional judgment and failure to uphold the standards of specific senior noncommissioned officer (SNCO) responsibilities in accordance with (IAW) Air Force Instruction (AFI) 36-2618, The Enlisted Force Structure, after an investigation disclosed he committed several acts of domestic violence by physically assaulting his wife. 

On 9 Nov 15, the commander filed the LOR in an UIF, and initiated demotion action.  On 8 Dec 15, the demotion action was found legally sufficient, and on 18 Dec 15, the applicant was demoted in grade from MSgt to TSgt.  

On 1 Apr 16, the applicant retired and was credited with 21 years, 2 months and 26 days of active duty service. 

On 2 Aug 16, the Secretary of the Air Force Personnel Council (SAFPC) determined  the applicant’s highest grade held satisfactorily was TSgt and that he will not be advanced to any higher grade.

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

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denying the applicant’s request to remove the LOR and UIF.  Based on the documentation provided and analysis of the facts, there is no evidence of an error or injustice.  On 20 Sep 15, the applicant was arrested for allegations of domestic violence, and on 13 Oct 15, he was issued a LOR prior to appearing in civilian court.  IAW AFI 36-2907, Unfavorable Information File, the commander and supervisor have authority to issue a LOR, and there is no requirement to prove any allegation beyond a reasonable doubt.

The complete advisory opinion is at Exhibit C.

AFPC/DP2SPP recommends denying the applicant’s request to be restored to the grade of MSgt.  Based on the documentation provided and analysis of the facts, there is no evidence of an error or injustice with the processing or administration of the demotion.  

The applicant believes because his civilian case was sealed, all military punishments received should be null and void.  However, there is no evidence to refute that the underlying offenses never occurred.  A demotion is based on the facts in front of the commander at the time the demotion action takes place, without regard to what might be occurring in the civilian system.  Based on this information alone, regardless of the sealing of the civilian case, the commander was within his authority to demote the applicant for failure to fulfill his SNCO responsibilities in accordance with AFI 36-2502, Enlisted Airman Promotion/Demotion Programs.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinions to the applicant on 27 Sep 19 for comment (Exhibit E), and the applicant replied on 30 Oct 19.  In his response, counsel stated that on 13 Oct 15, the commander issued a LOR and on 9 Nov 15, moved to create an UIF.  The commander maintained the LOR and UIF during the course of the state proceedings; however, the applicant’s case was dismissed on 23 Feb 16, and on 22 Jul 16, the court sealed the records, completely wiping the incident from his record.  The advisory opinion rendered by AFPC/DP2SPP is erroneous because it ignores the fact the applicant’s record was not only sealed, but the charges were dropped prior to the records being sealed.  Therefore, the commander made an error in discretion by moving forward with the demotion action prior to having all the pertinent facts about the alleged wrongdoing.  The applicant has been continuously victimized as a result of this error.  

The applicant’s complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION

AFPC/JA recommends denying the application.  The first request is for the LOR and UIF to be removed from the applicant’s record. According to AFI 36-2907, Table 2.3, Rule 20, the LOR and UIF should have been destroyed when he retired.  Based on a review of his official military human resources record (MHRR), the LOR and UIF do not appear; therefore, this request is moot.  

The second request is that the applicant’s grade be restored to MSgt.  The applicant argues the commander initiated the administrative demotion prior to completion of his civilian proceedings, which is a common occurrence when civilian authorities retain jurisdiction over a crime, due to the uncertainty of how long a civilian prosecution might take.  The civilian case was dropped by the local prosecutor and the applicant was never tried in court.  However, the standard of proof for a civilian criminal trial is “beyond a reasonable doubt.”  This differs from the standard of proof for an administrative demotion, which is the lesser standard of proof of “preponderance of the evidence.”  AFI 36-3208, Administrative Separation of Airmen, paragraph 8.14, provides a common definition that “A preponderance of the evidence means simply the greater weight of credible evidence.”  While it is no longer available, the demotion form indicates that the police report was part of the demotion package and considered by the demotion and appellate authorities.

When contesting military personnel actions, an applicant bears a difficult burden and must overcome the strong, but rebuttable, presumption that administrators of the military, like other public officials, discharge their duties correctly, lawfully, and in good faith.  Presumption favors the validity of official military acts and in the absence of contrary evidence; it is presumed that military personnel performed their functions properly.  Armstrong v. United States, 205 Ct. Cl. 754 (1974).  The presumption can only be rebutted by “cogent and clearly convincing evidence that the official’s actions were undertaken in bad faith.”  Duncan v. United States, 22 Cl. Ct 1 (1990), aff’d 949 F.2d 1134.  The applicant has failed to present any evidence of such bad faith.

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Jun 20 for comment (Exhibit H), and the applicant replied on 8 Jul 20.  In his response, counsel stated AFPC/JA erroneously equates the prosecutor’s decision not to move forward with the charge of assault and battery as not having sufficient evidence to convict the applicant beyond a reasonable doubt.  However, the Model Rules of Professional Conduct, Rule 3.8a, “Special Responsibilities of a Prosecutor”, states, “The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” (Emphasis added). The legal standard of “probable cause” is lower than the standard of “preponderance of the evidence” and is defined in Black’s Law Dictionary as “a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.”  When this case is examined closely, it becomes clear the applicant’s chain of command made an error in discretion by issuing him a LOR and UIF that ultimately resulted in his loss of rank.  The chain of command should have waited for the disposition of the criminal charges prior to taking adverse action that would cause irreparable damage to the applicant’s military career.  In light of these facts and arguments, the applicant reasserts his request to correct his military record to remove the LOR and UIF, and to restore his rank to MSgt.  

The applicant’s complete response is at Exhibit I.

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 concurs with the rationale and recommendation of the offices of primary responsibility and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant maintains the Air Force made a material error of discretion by filing a LOR and UIF, ordering a reduction in rank, and failing to remove the documentation upon dismissal of the charges against him.  He contends his criminal charges were ultimately dropped and his chain of command should have waited for the disposition of the civilian proceedings prior to taking adverse action that would cause irreparable damage to his military career.  However, we disagree, there are a number of reason the prosecution may have dropped the charges in the applicant’s case.  We note the applicant has not presented any evidence substantiating that the underlying offenses did not occur.  We further note, his chain of command considered credible evidence at the time of the incident and determined that based on the “preponderance of the evidence,” administrative actions were warranted.  The Board found the chain of command acted lawfully and within their discretionary authority. Moreover, SAFPC reviewed the applicant’s demotion action and it was determined that his highest grade held satisfactorily was technical sergeant (TSgt/E6).  As such, advancement to any higher grade is unwarranted.  Therefore, 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-2019-03988 in Executive Session on 11 Jun 20 and 15 Jul 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 1 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 6 Sep 19.
Exhibit D: Advisory opinion, AFPC/DP2SPP, dated 27 Sep 19
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 27 Sep 19.
Exhibit F:	Applicant’s response, dated 30 Oct 19.
Exhibit G: Advisory opinion, AFPC/JA, dated 3 Jun 20.
Exhibit H: Notification of advisory, SAF/MRBC to applicant, dated 3 Jun 20.
Exhibit I:  Applicant’s response, dated 8 Jul 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.