RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-05120

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXXX

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.	His Nonjudicial Punishment (NJP) be removed from his record.

2.	The corresponding entry in the Defense Central Index of Investigations (DCII) be expunged.    

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contends the NJP was improper and unfair and he suffered humiliation, embarrassment and loss of job opportunities.  

On 25 Jun 19, his request through the Air Force Office of Special Investigations (AFOSI)  that the NJP be removed from the Department of Justice, Criminal Justice Information Service, National Crime Information Center and National Instant Criminal Background Check System was denied.  Although some relief was granted, AFOSI failed to amend the record.  Per DODI 5505.07, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, titling is to ensure information from a report of investigation (ROI) can be retrieved; it is not a law enforcement record and does not connote any degree of guilt or innocence.    

There is a clear legal error.  At the conclusion of the AFOSI investigation, there was no credible evidence to support a finding the applicant engaged in an act of abusive sexual contact or assault consummated by a battery and the only disciplinary action he received was NJP.  The applicant was “titled” in the DCII based on an allegation he committed a criminal offense of abusive sexual contact.  The AFOSI’s administrative act of placing his name in the title block of an investigation is being interpreted as an “arrest.”  Outside of the military, this information is confusing to potential employers and in the context of the record; the entry appears to be the equivalent of a civilian arrest.  The entry in the DCII and the corresponding AFOSI entry of an arrest is improper, unduly prejudicial and not in the interest of national security.

An investigation began when a civilian made an allegation he touched her buttocks while getting a haircut at a barbershop frequented by military members and where his wife and son had their haircut.  The allegation he intentionally touched the buttocks of a woman while having his hair shampooed defies logic and credibility.  A probable cause finding ignored the physical impossibility of him placing his left hand on anyone while his hair was being shampooed.  Additionally, the substantiated finding ignored the complete absence of any corroborating information such as video.  The alleged victim herself changed her story from alleging it was a non-consensual encounter to alleging it was a consensual encounter undermining her credibility.  The redacted report of investigation (ROI) ignored his character and reputation in service.

On 20 Apr 15, he was offered NJP for abusive sexual contact.  While he was the subject of an investigation, he was never arrested.  A cursory review of the facts at the time would have revealed the allegation of abusive sexual contact was not supported by evidence.  The Air Force and the AFOSI committed a legal error in the submission to DCII.   

The NJP was the result of legal error and violated his due process rights.  The allegations were not supported by sufficient evidence to meet the elements under the Uniform Code of Military Justice.  In order to be a violation of Article 128, UCMJ it is necessary for the Government to establish that an accused committed an act of offensive or unwanted touching without the permission of the alleged victim.  Further, the procedures were tainted by the ineffective assistance of his military counsel in failing to inform him of the commander’s request for additional information.  Despite there was no credible evidence to support a conclusion he committed a crime, his otherwise honorable career was ended and he faced significant obstacles to employment in the civilian world.  The proper and fair outcome is to remove the record.  

He did not turn down the Article 15 or even provide a response during the investigation based on guidance from his defense counsel.  He found out later his commander had doubts about the credibility of the allegations and asked his defense counsel questions but counsel never passed the request for information to him.  He believes if the requested information had been provided to his commander, the outcome would have been different.   The titling action has negatively impacted him both professionally and personally.  He is unable to be hired for any government jobs, to include state, county and schools, and is unable to coach youth sports.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (MSgt, E-7).  

Counsel provides redacted AFOSI ROI, dated 23 Mar 15, which shows the applicant was investigated for abusive sexual contact on or after 28 Jun 12.  The ROI states the victim went to the security forces squadron (SFS) and provided a written statement that detailed an incident where the applicant rubbed her buttocks.  The victim stated she regularly cut the applicant’s hair and on two occasions, he unwantedly touched her buttocks.  On 9 Mar 15, AFOSI interviewed the applicant.  The interview with the victim revealed she felt uncomfortable and shocked when the incidents occurred.  The AFOSI attempted to obtain video surveillance; however, there was no video surveillance.  

AF Form 3070, Record of Nonjudicial Punishment Proceedings (MSgt thru CMSgt), dated 8 Apr 15, shows the applicant received an Article 15 for wrongfully rubbing [redacted] on the buttocks with his hand on or about 30 Jan 15.  Punishment included reduction to the grade of technical sergeant (TSgt, E-6), suspended through 31 Aug 15, forfeiture of $1,862.00 pay per month for two months and a reprimand.  

Counsel provides a letter from AFOSI/XI dated 25 Jun 19, which denied his request for expungement of the entry in the DCII.  It was determined AFOSI acted correctly in initiating his criminal history record per DODI 5505.11, Fingerprint Card and Final disposition Report Submission Requirements.  The applicant’s investigation was correctly indexed into DCII.  There was credible information of his involvement in a criminal offense that required indexing per DODI 5505.7.  The titling or indexing in the DCII does not mean he is guilty or innocent of any charges but means he was investigated for a particular reason.  The violation of “abusive sexual contact on or after Jun 28 2012” with a disposition of “Nonjudicial Disciplinary Action” was correctly entered.  The disposition was changed to “Charge Not Prosecuted.”  The record required an amendment, one charge of “assault by battery, violation of Article 128, UCMJ” was entered with a disposition of “No criminal action taken-nonjudicial disciplinary action administered.”  The AFOSI criminal history record would remain.    

Counsel provides Federal Bureau of Investigation (FBI) Report dated 19 Sep 19, which shows Charge 1-Abusive Sexual Contact on or after 28 Jun 12. Nonjudicial disciplinary Action, 20 Apr 15, Article 15 offered.  No criminal action taken, nonjudicial disciplinary action administered. For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE DIRECTIVE

DODI 5505.16, Investigations by DOD Components, AFOSI is listed as a law enforcement authority established by 10 U.S.C. § 9027.  

DODI 5505.07, Titling and Indexing in Criminal Investigations, Department of Defense (DOD) Components authorized to conduct criminal investigations will title and index subjects of criminal investigations as soon as the investigation determines there is credible information that the subject committed a criminal offense.  Titling and indexing are administrative procedures and will not imply any degree of guilt or innocence.  If a subject’s information requires expungement from or correction in the DCII, DOD Components will remove the information as soon as possible.  

AIR FORCE EVALUATION

AFLOA/JAJM recommends denial and finds no basis to set aside the NJP.  The record contains insufficient evidence or allegation of error or injustice tending to undermine the NJP action or imposed punishment.  

On 8 Apr 15, the applicant’s commander offered him NJP for one specification of assault consummated by battery, in violation of Article 128, UCMJ.  The applicant consulted a lawyer, waived his right to a court-martial and accepted NJP.  He submitted a written response to the NJP but declined to request a personal appearance before his commander.  On 20 Apr 15, his commander found he committed the alleged offense and administered punishment.  A review indicates his commander did not abuse his discretion in administering the NJP.  The punishment imposed was within the permissible range for the offense and he has not submitted any new evidence that casts doubt on the legal sufficiency of the NJP.  His allegations regarding his defense counsel’s performance does not demonstrate an injustice.  Moreover, the applicant failed to exercise his right to appeal the NJP and waited more than four years to request relief from the Board.  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 counsel on 8 Jun 20 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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 AFLOA/JAJM and finds a preponderance of the evidence does not substantiate counsel’s contentions to warrant removal of the Article 15.  While counsel contends the applicant did not commit an act of abusive sexual contact, received ineffective counsel and the Article 15 was improper and unduly harsh; he has provided no evidence to substantiate this to be the case.  Based on the evidence, it appears the AFOSI conducted an investigation after receiving a report the applicant committed an act of abusive sexual contact.  Upon review of the ROI, his commander determined the applicant committed the offense as alleged and offered the applicant an Article 15.  The punishment imposed was within the permissible range for the offense committed and the Board finds no evidence his commander acted improperly or abused his authority in the administration of the NJP.  With respect to the request for expungement of the DCII entry, the Board finds the AFOSI properly titled the investigation in the DCII as required.  Further, this Board, which serves on behalf of the Secretary of the Air Force in the correction of military records, is without authority to expunge an entry into the DCII pursuant to 10 U.S.C. § 9027 and DOD instructions.   The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2019-05120 in Executive Session on 30 Jun 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 6 Oct 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 20 Apr 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 8 Jun 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.