RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02764

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1. The portion of his non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), with reduction of rank to the grade of technical sergeant (E-6) be revoked.

2. His previously held grade of master sergeant (E-7) be reinstated and he receive all associated back pay and entitlements.    

APPLICANT’S CONTENTIONS

On 13 Feb 19, the applicant received a reduction in rank as part of non-judicial punishment (NJP) imposed on him under Article 15 when he was charged with two UCMJ violations: Article 86 and Article 92.  The article 86 violation was for missing squadron physical training due to a previously scheduled appointment that he had coordinated ahead of time with his section leadership.  While his commander believed that he was told to coordinate his appointment with his flight superintendent, he never received such guidance, nor was it standard policy to coordinate appointments that would preclude him from attending squadron PT.
  
The Article 92 violation is because he stayed home sick from work for one day without scheduling an appointment at the base clinic.  In this regard, the applicant states that as a supervisor and a section superintendent, it was his policy (in line with AFI 41-210) to allow members to stay home one day if they were sick.  If they were still sick the following day, then they were to call the appointment line and be seen at the base clinic.  As such, this was the policy he was operating under the day he stayed home sick, but admits that this may have been a mistake and is willing to take ownership for his failure to call the appointment line.

Because of these two lapses in judgment, he had a senior non-commissioned officer (SNCO) stripe removed, which he believes is unduly harsh, especially with no prior counseling.  He then goes onto compare his situation to that of a publicized story about another SNCO, who was convicted of abusive sexual conduct and for that, his punishment was also reduction in one stripe.  When compared to his case, he believes that his punishment is outrageous and disproportionate.  Furthermore, up until the point he received the Article 15, he has led what he believes would be considered a distinguished career and for which his records can attest.  

While he owns his mistakes and understands that counseling may have been warranted, he cannot fathom how his actions justify removal of a SNCO stripe.  

In support of his appeal, the applicant provides a character statement from the Executive Assistant to the Chief of Staff of the Air Force, dated 11 Feb 19; a copy of his response to the Article 15, dated 11 Feb 19; a copy of his Single Uniform Request Format (SURF) showing his military record; and a copy of his multiple decorations that he has received throughout his career.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force technical sergeant (E-6).

According to the applicant’s enlisted performance reports (EPRs) from 1 Dec 14 to 30 Sep 18, he was evaluated in the grade of master sergeant (E-7) and received ratings that “Exceeded some, but not all expectations” and “Exceed most, if not all expectations.”  

On 31 Aug 16, a Letter of Counseling (LOC) was issued to the applicant after investigation disclosed that during the month of August 2016, the applicant sent inappropriate communications that were sexual in nature to a woman, not his wife, thus failing to maintain professional relationships. 

On 28 Jan 19, the applicant received a verbal counseling when on 14 Dec 18, the applicant was insubordinate to an officer based on a disagreement over a conference room reservation.

On 29 Jan 19, the applicant received a Letter of Reprimand (LOR) after investigation had shown that on 7 Dec 18, he recorded false information in the Management Internal Control Toolset (MICT) and on 14 Dec 18, during a War Readiness Material (WRM) meeting, he provided false information to his group commander regarding the item in MICT.

According to several memoranda for records (MFRs) the applicant without authority, failed to go to his appointed place of duty at the time prescribed.  Specifically, on 23 Jan 19, the applicant was allegedly ill and was directed to contact the medical group to schedule an appointment and was never excused by leadership to delay reporting for work or be absent from duty; on 28 Jan 19, the applicant failed to attend physical fitness training; and on 31 Jan 19, the applicant failed to attend a promotion ceremony without being excused.

On 5 Feb 19, the applicant was notified of his commander’s intent to impose NJP on him pursuant to Article 15, for one specification of “Absence without leave,” in violation of Article 86, UCMJ, and one specification of  dereliction of duty, in violation of Article 92, UCMJ.  Specifically, on or about 29 Jan 19, without authority, the applicant failed to go at the time prescribed to his appointed place of duty and on or about 23 Jan 19, he was derelict in the performance of his duties by negligently failing to call the appointment line at the Medical Group.  

On 11 Feb 19, the applicant waived his right to court-marital, but indicated that he attached a written response and requested a personal appearance before his commander. 

On 13 Feb 19, the applicant’s commander finalized his decision and found that the applicant had committed one or more of the offenses alleged.   For these violations the commander imposed the punishment of a reprimand, forfeiture of $1,995.00 pay per month for 2 months suspended through 12 Aug 19, and a reduction to the grade of technical sergeant (E-6) with new date of rank (DOR) of 13 Feb 19.  

On 14 Feb 19, the applicant submitted an appeal to his commander and the appellate authority, and on 15 Feb 19 and 19 Feb 19, respectively, his appeal was denied.

On 22 Feb 19, the applicant’s wing commander (the appellate authority), determine that the action would be filed in his SNCO Selection Folder and placed in a Unfavorable Information File (UIF) and on that same date the servicing staff judge advocate (SJA) found the record to be legally sufficient.

On 12 Nov 19, a command directed referral evaluation for period of report 1 Oct 18 through 13 Feb 19 was issued to the applicant for the offenses listed in the 5 Feb 19 Article 15.  

On 30 Jun 21, he was honorably discharged and retired on 1 Jul 21, in the grade of technical sergeant (E-6) with a narrative reason as sufficient service for retirement.  He was credited with 20 years and 5 days of active service.

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

AIR FORCE EVALUATION

AFPC/DP2SSP, recommends granting the application, stating that there is there evidence of an error or injustice in the issuance of a reduction in rank to the applicant.  In accordance with Air Force Instruction (AFI) 36-2907, Adverse Administrative Actions,  Paragraph 1.1., Overview, “Adverse administrative actions are intended to improve, correct, and instruct subordinates who violate established Air Force standards whether on or off duty.  Misconduct generally should be addressed at the lowest possible level, as soon as possible, to ensure an Airman’s career is not negatively affected unnecessarily.  The decision to utilize these quality force management tools should be based primarily on two factors: the nature of the incident, and the previously disciplinary record of the Airman.  In deciding what type of action to take, consider the seriousness of the Airman’s departure from established standards. Additionally, adverse administrative action should be used as part of a progressive discipline process; however, there is no requirement to issue a lower level action to address an Airman’s first instance of misconduct. Some misconduct warrants a more severe form of action or action from higher in the chain of command.”  

Analysis of the evidence presented by the applicant and the base legal team show that there is no clear evidence of progressive discipline actions taken to support the requirement of such a severe punishment to a SNCO. Furthermore, the applicant’s record contains an Air Force Good Conduct Medal (AFGCM), which was issued four months after receiving the Article 15 and subsequent reduction in rank.   Per Air Force Manual (AFMAN) 36-2806, Awards and Memorialization Program, Paragraph A14.19.1.1 Eligibility for medal are for those that demonstrate “a positive attitude towards the Air Force and their jobs.” This medal is awarded to enlisted members for “exemplary conduct” (exemplary behavior, efficiency, and fidelity), for active military service with the U.S. on or after 01 June 1963. 

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 23 Nov 20 for comment (Exhibit D), and the applicant replied on 23 Nov 20, indicating that he had nothing further to add.  The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

DAF/JA, recommends denying the application.  While the applicant provides his argument regarding the events that led to his reduction in rank, his application contained no information providing the commander’s perspective.  So in the interest of a full and impartial review, DAF/JA, contacted the applicant’s former flight chief, squadron commander, and deputy group commander.  The consensus from their perspectives was that there was an escalation of under-performance and/or misconduct leading to these two charges and that there is at least one letter of reprimand and one letter of counseling in the Applicant’s personnel information file (PIF), contrary to his assertions of “no prior counseling.” In one example cited by all three members, the Applicant misrepresented facts regarding readiness reporting during his briefing to an O-6 group commander.

Upon further review DAF/JA found that the commander did not abuse his discretion in administering NJP, the punishment imposed was within the permissible range for the offenses, and the administration of NJP was legally sufficient.  

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 29 Mar 21 for comment (Exhibit G), and the applicant replied on 2 Jun 21.  In his response, the applicant first addresses DAF/JA’s comment regarding progressive discipline, specifically the LOC that was issued for providing false information to his group commander.  The applicant explains that he simply misspoke during a meeting and never intended to provide false information.  In fact, he thought that it was odd that his flight leadership realized the mistake during the meeting, but did not bring it to his attention until he received paperwork for the offense.  He reiterates that he simply gave an incorrect answer and in no way intentionally made comments to mislead his group commander.  

The applicant also addresses DAF/JA’s opinion that his commander was within his authority to administer the Article 15.  While the applicant understands this point and does not argue that the commander had the authority, he does contend that just because something is allowed does not make it right.  In this respect, he has spoken to many other leaders and mentors and they all have agreed that the punishment to reduce him in rank to technical sergeant (E-6) was not commensurate with the alleged offense.  While he can accept responsibility for his actions, he simply cannot accept that this level of punishment is just.  

He understands the gravity of the decision the Board must make and explains that reinstatement of his rank would not erase the lessons learned during the last couple of years.  He simply wishes to retire honorably, as a master sergeant (E-7) in the US Air Force.  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 injustice.  While the Board notes the recommendation of AFPC/DP2SSP to grant the applicant’s request and DAF/JA’s recommendation to deny relief, the Board finds a preponderance of the evidence substantiates the applicant’s contentions.  The Board notes that prior to the Article 15, the applicant had not received any other non-judicial punishment, and his record contains performance reports that primarily exceed expectations with multiple decorations, which point to an otherwise stellar career.  Additionally, the applicant was awarded the Air Force Good Conduct Medal (AFGCM) four months after receiving the contested Article 15, which demonstrates that he corrected his behavior and must have displayed conduct that was exemplary enough to merit the award.  Based on the foregoing, the Board finds the reduction in grade portion of the Article 15 punishment administered was unduly harsh and should be removed from his record and his prior grade of master sergeant be restored with a date of rank of 1 Mar 15.  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 that:

	1.  He was not reduced in grade to technical sergeant (E-6) as part of his nonjudicial punishment imposed on 13 February 2019, under the provisions of Article 15, Uniform Code of Military Justice, and all rights, privileges and property of which he may have been deprived by the reduction in grade be restored.

	2.  His grade of master sergeant (E-7) with a date of rank (DOR) of 1 March 2015, be restored.  

	3.  He was not discharged from the Air Force on 30 Jun 21, and retired for length of service on 1 Jul 21, in the grade of technical sergeant (E-6) rather he was discharged from the Air Force on 30 Jun 21 and retired for length of service on 1 Jul 21, in the grade of master sergeant (E-7).

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-2020-02764 in Executive Session on 20 Jul 21 and 8 Nov 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 10 Sep 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSP, dated 5 Nov 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 23 Nov 20.
Exhibit E:	Applicant’s response, dated 23 Nov 20.
Exhibit F:	Advisory opinion, DAF/JA, dated 26 Mar 21.
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, dated 29 Mar 21.
Exhibit H: Applicant’s response, dated 2 Jun 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.