RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04614

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXXX

HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.	He be promoted to the grade of Colonel (Col/O-6).

2.	He be awarded credit for two-years of Air Force Reserve (AFR) duty.

3.	His nonjudicial punishment (NJP) action be removed from his records.

APPLICANT’S CONTENTIONS

His section commander forced him to resign and not be promoted to the grade of O-6 due to his NJP action. He was punished for being in a relationship with a woman; however, he was not married at the time. According to the Chief of Chaplains ethics guidelines, his actions violated HQ/HC code of conduct for consensual sex without being married.

He presented evidence to the Judge Advocate General (JAG) that he was not married; however, she refused to submit it because it would make the commander look bad for not knowing he was not married. In addition, she feared if the commander knew he was not married after the investigation, the commander would take more drastic action against him. He believes the Air Force investigator suppressed evidence of him not being married. The Air Force investigator and Command Chaplain both believed he should not be allowed in the Air Force because of their religious and moral beliefs. He wants to continue to serve out his military career and is willing to accept a position in the 16X series.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired AFR lieutenant colonel (O-5/Lt Col).

Special Order AA-0134 dated 12 Jan 13 and DD Form 2656, Data for Payment of Retired Personnel, dated 11 Sep 16, both reflect the applicant was married and had one child.
On 1 Feb 16, the applicant was offered NJP action under Article 15, Uniform Code of Military Justice (UCMJ). He was charged with violations of Articles 107 (False Official Statement), 133 (Conduct Unbecoming an Officer), and 134 (Adultery) of UCMJ. The specifications alleged the applicant solicited a senior noncommissioned officer (SNCO) to make a false statement relating to getting out of an apartment lease, engaged in multiple affairs with women, not his wife and lying about his marital status, and committing acts of adultery.

On 12 Feb 16, the applicant indicated he consulted with a lawyer, waived his right to a trial by court-marital, and accepted NJP. In his defense, the applicant provided written presentation and requested a personal appearance before the commander and that it not be public.

On 22 Feb 16, the commander imposed punishment consisting of forfeiture of $4,194.00 pay per month for one month and a reprimand.

On 29 Feb 16, the applicant appealed the commander’s decision and submitted written matters for consideration. On 10 Mar 16 and 1 May 16, the commander and appellate authority denied the appeal, respectively.

On 9 May 16, the NJP action was reviewed and determined to be legally sufficient.

On 1 December 2016, per Reserve Order EL-0140, dated 11 October 2016, the applicant was authorized retired pay and placed on the Air Force Retired List, Retired Reserve Section. He was credited with 31 years and 7 months service for basic pay

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

AIR FORCE EVALUATION

AFRC/JA, recommends denying the application, indicating, two General Officers found the applicant had engaged in untrustworthy behavior towards his lawful spouse and his landlord. The applicant admitted he was married at the time of his sexual relationship to another woman, but considered his marriage as a mere legal formality. In addition, he admitted he knew he was not moving and that PCS orders were not pending, yet he asked a subordinate NCO to sign a letter stating otherwise. The commander and then Vice Chief of Staff of the Air Force (AF/CV) both found the applicant had committed illegal acts revealing a lack of integrity.

The complete advisory opinion is at Exhibit C. AFRC/A1X recommends denying the applicant’s appeal.
On 15 Jun 19, the Command Chaplain notified the applicant’s section commander that the chaplain’s office received several calls from two unrelated women on separate occasions representing themselves as the applicant’s fiancée and requesting his whereabouts. In addition, one of the women was seeking child support for her 17-month old daughter. According to the applicant’s supervisor, he was married. In addition, the applicant’s extended active duty (EAD) order, dated 12 Jan 13 and his DD Form 93, Record of Emergency Data, dated 3 Jun 13, both reflect the applicant was married and had one daughter.

On 29 Jun 15, after consulting with JA, the   applicant’s former section commander initiated    a Commander-Directed Investigation (CDI) into allegations of adultery, failure to pay just debt and filing a false AF Form 988, Leave Request/Authorization for an overseas trip to Jamaica.

The CDI was conducted from 29 Jun 15 to 7 Aug 15.   The investigating officer (IO) based      his findings on interviews with the applicant, his spouse, 13 other witnesses, and other corroborating evidence.  The applicant and his spouse both confirmed they were married to   each other. In addition, the IO substantiated four of seven allegations of misconduct including two allegations of adultery, one allegation of failure to pay just debt, and one allegation of    filing a false AF Form 988.

Allegation 1: Between on or about 1 Jan 11 and on or about 12 Jun 15, the applicant wrongfully had sexual intercourse with, a woman not his wife, and that said conduct was to the prejudice of good order and discipline in the armed forces.

Finding: SUBSTANTIATED with JA concurrence.

Allegation 2: On or about 12 Jun 15, the applicant wrongfully had sexual intercourse with, a woman not his wife, and that said conduct was to the prejudice of good order and discipline in the armed forces.

Finding: SUBSTANTIATED with JA concurrence.

Allegation 3: On or about 1 Jan 12 and or about 12 Jun 15, the applicant wrongfully had sexual intercourse with, a woman not his wife, and that said conduct was to the prejudice of good order and discipline in the armed forces.

Finding:  NOT SUBSTANTIATED with JA concurrence.

Allegation 4: Between on or about 1 Jan 05 and on or about 12 Jun 15, the applicant wrongfully had sexual intercourse with, a woman not his wife, and that said conduct was to the prejudice of good order and discipline in the armed forces.

Finding: NOT SUBSTANTIATED with JA concurrence

Allegation 5: Between on or about 1 Feb 15 and on or about 12 Jun 15, the applicant was derelict in the performance of his duties in that he willfully failed to avoid fraternizing with         a noncommissioned officer (NCO) in violation of AFI 36-2909, Professional and  Unprofessional Relationships and AFI 36-2909, AFGM2014-01, as it was his duty to do.

Finding: NOT SUBSTANTIATED with JA concurrence.

Allegation 6: Between on or about 1 Jan 11 and on or about 12 Jun 15, the applicant was derelict in the performance of his duties in that he willfully failed to pay his just financial obligations in a proper and timely manner regarding the care of his child in violation of AFI 36- 2906, Personal Financial Responsibility, as it was his duty to do.

Finding: SUBSTANTIATED with JA concurrence.

Allegation 7: During the month of Aug 14, with intent to deceive, sign an official record, to wit: AF Form 988, which was false in the listed planned leave address, and was then known by the applicant to be so false.
Finding: SUBSTANTIATED with JA concurrence.

On 22 Feb 16, the deputy commander reprimanded the applicant with an Article 15 and initiated an Unfavorable Information File (UIF) under the provisions of AFI 36-2907, UIF Program for the following violations of the UCMJ:

Article 107, for a false official statement related to a letter that he had signed by a subordinate to get out of an apartment lease; Article 133, for lying about his marital status; and Article 134, for having sexual intercourse with, a woman not his wife. In addition to the reprimand, the commander imposed forfeiture of $4, 194.00 pay per month for 1 month and a reprimand. The applicant appealed this action to the AF/CV. On 1 May 16, AF/CV denied the applicant’s appeal.

On 29 May 16, the Presbyterian Council for Chaplains and Military Personnel withdrew the applicants ecclesiastical endorsement. On 3 Jun 16, the applicant was notified that the Presbyterian Council of Chaplains and Military Personnel had withdrawn his ecclesiastical endorsement. Since the required memorandum for approval of a change of endorsement had not been received, his Air Force Specialty Code (AFSC) was re-designated from 52R, Chaplain to a 96U0, Unclassified Officer, in accordance with AFI 52-102, Chaplain Professional Development, and was provided his commander’s plan to begin involuntary discharge actions. In addition, the applicant was offered the opportunity to retire with the soonest possible effective date.

On 1 Jul 16, the applicant’s former section commander inquired about the status of his retirement actions. On 11 Jul 16, the applicant provided the commander with a copy of his remaining retirement actions and a timeline to complete those actions. In addition, the commander agreed to allow the applicant to use his accrued terminal leave days and that he would complete his remaining retirement actions by 19 Aug 16 and retire, effective 1 Dec 16.

On or about 25 Aug 16, the applicant departed the local area for an unauthorized absence.  On  26 Aug 16, he was issued a letter of counseling (LOC) for the following violations of the UCMJ: Article 92, Failure to Obey an Order or Regulation for failure to complete his out-processing actions and Article 86, Unauthorized Absence for an unauthorized trip. Following the issuance of the LOC, the applicant was again offered the opportunity to retire. Subsequently, he agreed to move forward with his retirement application and associated retirement actions.

Throughout Aug and Sep 16, the applicant requested his commander transfer him to another AFSC, such as the 16R to allow him to continue to serve in the AFR.
With respect to applicant’s contention that his commander prevented him from being promoted to the grade of O-6. AFRC/A1X opined the commander could not have prevented the applicant from applying for any job for which he was qualified including a position in the 16X series. Specifically, as with all Air Force Reservists, it was the applicant’s responsibility to find a position into which he could be hired and to find a hiring official willing to hire him. However, the applicant’s application attempts would not have halted any subsequent involuntary discharge actions on the part of the command. Furthermore, during the period in question, no hiring officials contacted the applicant’s commander to inquire about hiring the applicant.

In Apr 17, during a review of the command’s personnel statuses, it was found the applicant was still in an active status within the Air Force personnel and pay systems. Upon further review, it was noted that even though the applicant had been issued a retirement order, he failed to out- process with the finance office. Subsequently, he continued to receive pay as an active duty officer until Apr 17 and incurred an overpayment debt in excess of $39,000.00. The applicant’s former commander unsuccessfully tried contacting the applicant through the personal contact information he provided on his terminal leave form. After some additional research, the commander was able to contact the applicant about the overpayment. Subsequently, the CCQ staff coordinated with the command to properly separate the applicant from the Air Force and contacted the finance office to close the applicant’s active pay file to halt any further payments. As of 23 Dec 19, the applicant had not repaid the overpayment and owes the Air Force $46,175.33.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 12 Mar 20 for comment (Exhibit E), but has received no response.

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 recommendations of AFRC/JA and AFRC/A1X and finds a preponderance of the evidence does not substantiate the applicant’s contentions. In this respect, the Board notes the applicant has provided no evidence that would lead us to believe the non-judicial punishment (NJP) action imposed was unduly harsh or disproportionate to the offenses committed. The Board took note of the applicant’s contentions that his commander prevented him from being promoted to the grade of colonel; the Air Force investigator suppressed evidence of him not being married; and that both the investigator and Command Chaplain believed he should not be allowed in the Air Force because of their religious and moral beliefs; however, we do not find these contentions sufficiently persuasive to override the rationale expressed by the Air Force offices of primary responsibility. Given there is no basis to remove the applicant’s NJP action, his requests to be promoted to the grade of colonel and be awarded credit for two-years of Air Force Reserve (AFR) duty are not favorably considered. Therefore, the Board recommends against correcting the applicant’s records.

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 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-2019-04614 in Executive Session on 12 and 15 May 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, AFRC/JA, dated 7 Feb 20.
Exhibit D: Advisory opinion, AFRC/A1X, w/atchs, dated 4 Mar 20
Exhibit E: Notification of advisory, SAF/MRBC to applicant, dated 12 Mar 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.