RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04416

XXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  Her Nonjudicial Punishment (NJP)/Article 15 be removed and she be reimbursed pay.

2.  Her Security Information File (SIF) be expunged.

3.  Her Unfavorable Information File (UIF) be removed.

4.  By amendment at Exhibit E, she be authorized subsequent supplemental promotion consideration.

5.  By amendment at Exhibit F, her 2018 referral Officer Performance Report (OPR) be removed.

APPLICANT’S CONTENTIONS

She was unjustly charged with sexual assault, and subsequently received an Article 15 with forfeiture of pay, a referral OPR, and had a UIF established.  Additionally, these accusations led to establishment of a SIF, which affected her security clearance and caused restrictions to access/additional duties, mobility/readiness, and special duty assignments.  Ultimately, accusations against her were found to be untrue by a Board of Inquiry.  The Board of Inquiry allowed the alleged victim to speak under sworn testimony about the events which transpired on 19 Apr 18.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a Regular Air Force major (O-4).

On 30 Aug 18, the applicant’s was notified her commander was considering NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 120, two counts of sexual contact; and Article 134, one count of drunk and disorderly.  On 15 Oct 18, the commander imposed punishment of forfeiture of $3,701 pay per month for 2 months, and a reprimand.  On 16 Nov 18, the staff judge advocate found the decision legally sufficient.

The applicant received a referral OPR for the period 3 Dec 17 thru 2 Dec 18.

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

AIR FORCE EVALUATION

DAF/JA recommends granting the applicants requests to remove her Article 15/NJP and UIF, amend her OPR, expunge her SIF, and that she be reimbursed pay lost for her NJP.  Additionally, although not requested by the applicant, recommend the reprimand be removed from her record.

At the Board of Inquiry, the Air Force Office of Special Investigation (AFOSI) Report of Investigation (ROI), dated 24 Jul 18, was submitted into evidence.  The ROI begins with Summary of Investigation (SOI) that is problematic because of its unclear language.  The SOI sounds like the AFOSI special agent is making conclusory statements about the applicant’s behavior; however, it is actually summarizing the unverified original 26 Apr report by MZ.  The ROI contains over 20 verbal (summaries) and sworn written statements that were taken by AFOSI, including 11 of the latter.  These multiple witness statements are consistent on three facts: 1) the applicant’s work and abilities as a flight nurse were highly regarded; 2) there was no observation of inappropriate contact by the applicant against N.C.; and 3) the applicant had issues with alcohol-related behavior and could potentially benefit from mental health counseling (both issues were identified by others and by the applicant herself).  However, and most troublingly, these statements do not substantiate the elements of the offense being investigated, yet the ROI was relied upon by the commander.  As such, the commander relied on bad information in administering the NJP, finding the applicant committed the offense as alleged, and imposing punishment.  The only indication of misconduct comes from a conclusory statement in the AFOSI ROI’s SOI.  The alleged victim herself vehemently denied under oath that the applicant committed the alleged offenses.  The findings of the Article 15 and the consequent NJP, forfeiture of pay, referral OPR, SIF, and UIF were erroneous and an injustice.

There remains the issue that the applicant’s NJP was upheld upon appeal.  The Article 15 and appeal were completed based only on the AFOSI ROI.  Based on the ROI available to the commander, the commander did not necessarily abuse his discretion, and similarly the appeal was not necessarily incorrect in upholding the NJP.  However, the commander and the appellate authority did not have the benefit of the alleged victim’s sworn testimony as the Board of Inquiry.  The complete advisory opinion 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 17 Feb 21 for comment (Exhibit D), and the applicant replied on 17 Feb 21.  In her response, the applicant agreed with the DAF/JA recommendation.  Should her requests be approved, she further requests supplemental promotion consideration for all appropriate promotion cycles.  The applicant’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 the victim of an error or injustice.  After a thorough review of the applicant’s complete submission, the Board finds the commander relied on bad information in administering the NJP, finding the applicant committed the offense and imposing punishment.  The Board concurs with the rationale and recommendation of DAF/JA and finds a preponderance of the evidence substantiates the applicant’s contentions and finds the Article 15 and the consequent NJP, forfeiture of pay, referral OPR, LOR, SIF, and UIF were erroneous and unjust and should be removed from the applicant’s record.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show: 

1.  Her nonjudicial punishment imposed on 15 Oct 18, under the provisions of Article 15, Uniform Code of Military Justice, be declared void and expunged from her records; her subsequent reprimand be removed; and all rights, privileges and property of which she may have been deprived be restored.

2.  Her Security Information File (SIF) be expunged and suspension of her clearance and access be restored.

3.  Her Unfavorable Information File (UIF) be removed.

4.  She be authorized supplemental consideration for promotion to the grade of lieutenant colonel for all appropriate cycles, beginning with cycle P0519C.

5.  Her AF Form 707, Officer Performance Report (Lt thru Col), rendered for the period 3 Dec 17 through 2 Dec 18 be declared void and removed from her records.  

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-2019-04416 in Executive Session on 11 Mar 21:

, 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 28 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, DAF/JA, dated 13 Jan 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 17 Feb 21.
Exhibit E:	Applicant’s email response, dated 17 Feb 21.
Exhibit F:  Applicant’s email response, dated 3 Aug 21.

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.