RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02120

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
	 
  	HEARING REQUESTED: NO 	 

APPLICANT’S REQUEST

1.   His administrative demotion to the rank of technical sergeant (E-6) be rescinded and his rank of master sergeant (E-7) be restored.  

2.   The administrative separation action be removed from his record.    

3.   He be retired in the rank of master sergeant (E-7) with constructive service credit.

4.   In the alternative, he be reinstated into active duty with time-grade, back pay and allowances from his date of separation, 14 Aug 20.  

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states he was denied his rights and due process during the administrative separation process. He was alleged to have participated in white supremacist activities following an Air Force Office of Special Investigations (AFOSI) investigation that concluded on 13 Jun 19.  He received a letter of reprimand (LOR) on 29 Jul 19.  On 20 Aug 19, the LOR was filed in an unfavorable information file (UIF).  On 21 Aug 19, an administrative reduction in grade was initiated for failure to fulfill responsibilities per AFI 36-2502, Enlisted Airman Promotion and Demotion Programs.  On 3 Dec 19, he was notified of administrative separation. On 23 Jan 20, he was issued a referral enlisted performance report (EPR) for a one-day reporting period of 19 Aug 19.  On 5 Mar 20, he received a second referral EPR for a one-day period of 3 Dec 19.  

Numerous motions were filed and litigated at the administrative separation board.  The legal errors were preserved as appellate issues in the course of the board proceedings.  Pertinent to this appeal are the motions and responses argued at the administrative board.  Demotions in rank are authorized in AFI 36-2502 and a basis for demotion is failure to fulfill responsibilities.  However, Air Force Handbook (AFH) 36-2618, The Enlisted Force Structure, does not prescribe limitations on lawful private activities outside of the workplace.  The Air Force has numerous other disciplinary and or criminal actions to address off-duty conduct.  The applicant was never alleged to have failed in any of his duties as a senior noncommissioned officer (SNCO).  The deliberate misuse of AFI 36-2502 was for the sole purpose of bolstering the government’s case against the applicant at his administrative separation board. The command claimed the demotion was based on his participation and leadership role within the white supremacist organization.  His participation was private, on his own time, without the use of government resources or personnel and separate and unrelated to the performance of his military duties.  His participation was unpaid, and he volunteered.  
With respect to the allegation, the applicant misrepresented his community service on his EPR, this conduct did not meet the definition of a false official statement.  The government clearly recognized they could not allege he made a false official statement.  The applicant was also not on notice the alleged conduct was criminal and that it could form the basis of an administrative discharge under AFI 36-3208, Administrative Separation of Airmen.      Dereliction of duty cannot be used simply as a catch all to prohibit conduct that fails to meet the elements of another offense.  There was no underlying duty for the applicant to refrain from the alleged conduct, as such the allegation is insufficient.  

The original 3 Dec 19 discharge notification memorandum did not allege the applicant’s conduct was “willful,” presumably because they recognized the evidence did not support the heightened standard.  Clearly the government knew the difference.  The government did not amend the allegations until his counsel pointed out the allegations did not meet the definition of willful dereliction.  The government then merely inserted the word “willfully.”  The evidence confirmed the government knew from the start there was no evidence the applicant had actual knowledge of a specific duty prohibiting the alleged conduct.  

AFI 36-3208, paragraph 5.52 provides that airmen are subject to discharge for misconduct based on the commission of a serious offense if a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts Martial (MCM).  The MCM in turn provides that dereliction of duty may be committed either willfully or through neglect or culpable inefficiency.  A punitive discharge is authorized for “willful” dereliction of duty but not for “negligent” dereliction of duty.  In order to constitute willful dereliction of duty, the applicant must have actual knowledge of the underlying duty.  The legal advisor at the hearing recognized that actual knowledge of the underlying duty was required and instructed the board members to that effect.  There was no competent evidence presented at the discharge board that the applicant had actual knowledge of the underlying duties.  

The government entered AFI 1-1, Air Force Standards, into evidence that airmen must avoid inappropriate or offensive behavior on social media.  The language in AFI 1-1 is extremely broad.  Again, there was no competent evidence presented the applicant had actual knowledge of this duty.  It may be fair to infer SNCOs have a general familiarity with service regulations.  However, it is not fair to infer based merely on the applicant’s rank and time in service he had actual knowledge of the sub-paragraph.  The Air Force E-Publishing Website lists 40 different series of publications, each which contain multiple publications.  Notwithstanding, his years of service, it is insufficient to simply assume he had actual knowledge of the subparagraph or the specific sentence of AFI 1-1 cited by the government to establish “willful” dereliction.  

He was also unfairly prejudiced by voluminous and untimely changes to the allegations and evidence between the original notification memorandum on 3 Dec 19 and the formal commencement of the board on 12 Feb 20.  He faced three different sets of charges over the course of the proceedings and he and his counsel were put in the untenable position of continuously adjusting to defend against new allegations and new evidence.  

The commander who convened the applicant’s board also lacked the authority to do so because Air Force Space Command (AFSPC) ceased to exist upon the establishment of the United Spaces Space Force (USSF) and the issuance of the special order convening the administrative discharge board.  Air Force administrative discharge boards may be convened by commanders exercising Special Court-Martial Convening Authority (SPCMA).  The G-series order dated 5 Dec 19 granted no authority to any Space Force entity to convene any level of court-martial.  The establishment of the USSF was accompanied by a flurry of redesignations and realignments of former Air Force units, to include incongruence between the Air Force’s established jurisdictional scheme and the newly shuffled units.  These issues were raised extensively by counsel prior to the administrative discharge board.  

The applicant was unfairly prejudiced by the government’s invocation of the 2017 “Unite the Right” rally in Charlottesville, VA, which the applicant had absolutely nothing to do with.  The applicant was prejudiced by a photo of him with a photo of participants at the rally.  A video clip of the applicant holding a torch next to the white supremacist organization’s mural was shown to indicate the video was relevant to show he was an active participant in the organization.  The applicant had already fully acknowledged being an active participant in his response to the LOR.

The government also acknowledged that the applicant’s name was not mentioned in a news article about military members identified as members of the white supremacist organization.  The article contained a picture of individuals holding torches at the rally in Charlottesville, VA.  Counsel argued that they felt they had been put in a position to defend against what happened in Charlottesville and went onto discuss the board should be considering the applicant’s actions, not the actions of others which he had no part in.  There was no indication the applicant was involved in the “Unite the Right Rally.”  The rally was one of the most divisive and ugly events in recent memory, juxtaposing the applicant’s picture with the event (which had nothing to do with the case) engendered a strong emotion but unfair reaction.  The government’s inflammatory presentation was unconscionable in allowing the separation of a SNCO with 17 years of service to be tainted by such evidence and argument.  

Based on the legal errors, the administrative demotion was improper and must be rescinded.  The administrative separation board and process violated the applicant’s due process rights, and a legal error was made at the administrative board to his detriment.  The discharge is both improper and unjust.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 29 Jul 19, according to documentation provided by counsel, the applicant received a LOR.  An investigation on or about 17 Jun 19, revealed his association with an organization whose mission promoted white Europeans and the preservation of an “ethnostate.”  Additionally, on the organization’s podcast, he claimed to be the patron liaison, whose purpose was to collect money for the organization.  The applicant touted his participation in his EPR, and he was seen wearing the organization’s clothing and handing out flyers.  The applicant was also linked to a username that openly advocated illegal discrimination and a “white high-trust society,” while proclaiming to be a member of the armed forces.  The LOR stated the actions violated AFI 1-1, AFI 51-508, Political Activities, Free Speech and Freedom of Assembly of Air Force Personnel, and Article 92, Uniform Code of Military Justice (UCMJ).  He was also featured in a video vandalizing public property with the organization’s logo and placed stickers on various objects throughout the state, in violation of Article 109, UCMJ.  The LOR was placed in a UIF and the applicant was placed on a Control Roster. 

Counsel provides referral EPR for the reporting period 19 Aug 19 to 19 Aug 19; however, the applicant’s automated records management system (ARMS) does not contain referral EPRs for one day reporting periods.    

Per the Administrative Demotion of Airmen Memorandum, dated 21 Aug 19, the applicant was administratively demoted to technical sergeant, with DOR and effective date 11 Sep 19.  His commander stated he had lost faith and trust in the applicant’s ability to serve in the rank of master sergeant and represent the Air Force core values and responsibilities of a SNCO.  The decision was based on the applicant’s participation and leadership role with a white supremacist organization over a continuous period of time and deceiving the command leadership chain by claiming the participation was volunteer work.  In the applicant’s response dated 4 Sep 19, he admitted he became too close to his philosophical, political, and religious ideologies in his private life, which resulted in poor decisions.  He believed he was on the correct side of permissible free speech and political activities.  He failed to recognize the potential negative impacts to his role as an enlisted military leader.  

On 8 Oct 19, the applicant filed an IG complaint alleging his commander violated his right to his freedom of political speech per AFI 51-508.  The applicant alleged he was politically censored and intimidated and that there was anti-white and religious discrimination.  The AFOSI conducted an investigation into his involvement with the named organization following a public doxxing of his name.  Following the investigation, he was issued a LOR, UIF and control roster and an administrative demotion.  The LOR falsely accused him of advocating illegal discrimination and ending immigration.  This action violated his legal political expression.  He was being silenced and intimidated to fall in line with a political orthodoxy because advocating white racial consciousness, white identity and the group interests of Americans of European heritage is considered controversial and politically inconvenient. In a memorandum dated 10 Oct 19, the WG/IG informed the applicant his complaint was transferred to the major command IG (MAJCOM/IG) in accordance with AFI 90-301, Inspector General Complaints Resolution.  In an e-mail dated 12 Nov 19, the applicant informed the MAJCOM/IG he understood his option to pursue a complaint with his Equal Opportunity Office, indicated he did not want to file a complaint under Article 138, UCMJ at the time and that he understood his IG complaint would be closed as an “Assist” but that he could file another complaint at a later date.  Accordingly, the applicant’s IG complaint was closed.  

On 3 Dec 19, the applicant was informed by his operations group commander (OG/CC) of his intent to recommend he be discharged for misconduct, for commission of a serious offense in accordance with AFPD 36-32, Military Retirements and Separation, and AFI 36-3208, Administrative Separation of Airmen.  The OG/CC was recommending he be discharged with an under honorable conditions (general) discharge; however, stated the commander exercising special court-martial (SPCM) jurisdiction or higher authority would make the final decision.  The reasons for the discharge recommendation include the following:

a.	On or about 1 Mar 17 and 12 Mar 19, he was derelict in the performance of his duties by willfully failing to refrain from actively participating in a supremacist organization.

b.	On or about 13 Nov 18, he was derelict in the performance of his duties for willfully failing to meet his responsibilities as a SNCO by signing his EPR that contained a bullet that misrepresented his community service, and his involvement was in a supremacist organization.

c.	On or about 1 Mar 17 to on or about 12 Mar 19, he was derelict in the performance of his duties by failing to adhere to Air Force core values.  Specifically, he posted offensive or inappropriate comments on social networking platforms and other forms of communication that could bring discredit upon the Air Force or that would otherwise could be harmful to good order and discipline, respect for authority, unit cohesion, morale, mission accomplishment or the trust and confidence the public has in the United States Air Force.

d.	On or about 1 Mar 17 to on or about 12 Mar 19, he was derelict in the performance of his duties by failing to adhere to Air Force core values.  Specifically, he provided commentary and opinions on an internet blog that could reasonably be anticipated or intended to degrade morale, good order and discipline or would degrade the trust and confidence the public has in the Air Force.

e.	On or about 1 Jan 18 to on or about 12 Mar 19, he was derelict in the performance of his duties by failing to refrain from speaking before a partisan political gathering promoting partisan political activity, candidate, or cause.

f.	On or about 1 Jan 18 to on or about 12 Mar 19, he was derelict in the performance of his duties by failing to refrain from participating in radio, television or other program or group discussion as an advocate of a partisan political party, candidate, or cause.

On 6 Dec 19, the applicant’s area defense counsel (ADC) noted the applicant’s discharge recommendation was not initiated until after the applicant’s IG complaint and protected communication.  The applicant expressed his belief his right to free political expression had been infringed upon. The administrative demotion action was not initiated at the time of the administrative demotion but 56 days after he filed his complaint with the IG.  The ADC also expressed concern his squadron commander believed the disciplinary course was not proper but rather in response to media pressure.  The media reported an investigation had concluded and the commander was taking appropriate action.  It was the group and not the squadron commander who initiated the discharge action.  Further, administrative rather than nonjudicial punishment (NJP) was issued although the government stated his conduct rose to the commission of a serious offense.  The government also did not pursue court-martial after the AFOSI investigation.   AFI 36-3208, paragraph 5.52 makes clear that airmen are subject to discharge based on the commission of a serious offense if a punitive discharge would be authorized.  All six specifications in the case allege “dereliction of duty.”  However, only dereliction of duty charged as “willful” or results in death or grievous bodily harm can result in a punitive discharge according to the MCM.  Two thirds of the allegations were not legally sufficient.   

On 8 Jan 20, the OG/CC amended the notification of administrative discharge action dated 3 Dec 19 that the applicant acted “willfully.” 

On 21 Jan 20, his ADC stated the government never truly believed the applicant acted “willfully.” Only after they were informed their allegations were legally insufficient did they insert “willfully” as opposed to “negligently.”  This is further corroborated by the LOR and the administrative demotion which does not include the phrase “willful.”

On 28 Jan 20, the applicant was notified by the wing judge advocate (WG/JA) an administrative discharge board would be convened on 3 Feb 20 to determine whether he should be discharged.    

On 28 Jan 20, the applicant’s ADC objected that the alleged misconduct amounted to commission of a serious offense.  The ADC noted the government must prove “willful dereliction of duty” as the crime is understood by the MCM. In order to prove “willful dereliction of duty” the government bears the burden of showing the existence of such a duty.  The UCMJ requires proof of certain military duties and does not assume such duties.  The government has alleged “willful” dereliction of duty” as opposed to “negligent” dereliction of duty.  This requires the government to prove actual knowledge of the duty on the part of the applicant.  The ADC asked how could the government prove “actual knowledge” of such duty if it refused to introduce any evidence relating to such duty.  

On 6 Feb 20, an administrative discharge board convened.  The discharge board recommended the applicant be discharged with a general discharge, without probation and rehabilitation (P&R).  

On 3 Mar 20, the OG/CC recommended he be discharged as recommended by the discharge board.  

On 11 Mar 20, the wing commander (WG/CC) concurred with the discharge recommendation and that the execution of the discharge was being withheld until completion of lengthy service consideration.  

On 30 Mar 20 the ADC requested the administrative discharge board’s recommendation to discharge the applicant be disapproved and the applicant be allowed to remain on active duty.  At a minimum, it was requested he be given lengthy service consideration, with P&R.    

On 29 May 20, the Air Force Personnel Board considered the applicant’s lengthy service probation (LSP) request.  A panel at an administrative discharge board hearing found the applicant misrepresented his involvement in a white supremacist organization as “community service.” This allegation did not form a basis for discharge.  However, the panel also found the applicant was an active participant in the white supremacist organization.  Moreover, he was derelict in the performance of his duties by willfully failing to refrain from his participation in the organization and posting inappropriate comments on social media.  Until his participation was discovered by law enforcement and the media, neither his chain of command nor co-workers knew of his involvement.  Once it was discovered, the commander and superintendent testified his presence in the unit was having a negative effect on unit cohesion, morale and good order and discipline.  The Air Force Personnel Board members noted the applicant’s statements made on social media alone were not consistent with future military service.  They agreed with the recommendation of the administrative discharge board and the applicant’s chain of command that it would not be in the best interest of the Air Force to allow the applicant to remain in the Air Force on a probationary status and denied his request for LSP.    

On 3 Aug 20, the Secretary of the Air Force Personnel Council (SAFPC) denied the applicant’s request for lengthy service probation and directed the approved administrative discharge with under honorable conditions (general) service characterization be executed.  The applicant participated in an organization involved in the “Unite the Right” rally in Charlottesville, VA which ended in violence.  The applicant was not a direct subject of an FBI investigation; however, the FBI questioned the applicant on his involvement in the organization and AFOSI opened an investigation and confirmed his active participation in the group.  His command chain indicated they were unable to establish a legal case sufficiently strong to warrant a court-martial by proof beyond a reasonable doubt.  

On 14 Aug 20, the applicant was discharged with an under honorable conditions (general) discharge and narrative reason for separation, “Misconduct (Serious Offense).  He served 16 years, 9 months, and 5 days active service.  

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

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denial for void of the separation action.  The commander provided ample evidence to the base separation authority to support separation.  The separation authority determined the significant negative aspects of the applicant’s behavior outweighed any positive aspects of his military career.  Further, the SAFPC, on behalf of the Secretary of the Air Force (SecAF), reviewed the applicant’s request for lengthy service and determined that discharge was more appropriate.  There is no evidence of an error or injustice with the discharge processing.   

The complete advisory opinion is at Exhibit D.  

AFPC/JA recommends denial of the applicant’s request to rescind the administrative discharge and retire in the grade of master sergeant.  On or about 17 Jun 19, an investigation revealed the applicant was a member of a supremacist organization.  The applicant admitted to participating in various recruiting messages and owning the username, which openly advocated for illegal discrimination and a “white high-trust” society.  The applicant also admits to covertly using his affiliation with the organization to bolster his EPRs, which states he was the committee chair for a national level heritage organization.  He also stated on a podcast that he covertly utilized his efforts in the organization on his EPR.  AFI 36-2502, paragraph 6.3.4, stipulates airmen may be demoted for failing to fulfill responsibilities.  AFH 36-2618, paragraph 4.6 states SNCOs have a special obligation and responsibility to ensure the Air Force retains a climate and culture of dignity and respect.  Further AFI 51-508, paragraph 3.4, states military personnel must not actively advocate supremacist, extremist or criminal gang doctrine, ideology or causes, including those that advance, encourage or advocate illegal discrimination based on race, creed, color, sex, religion, ethnicity or national original.  

There is sufficient evidence in the records to support the administrative demotion.  First, the applicant does not deny being part of the group.  Moreover, by his own admission, he fundraised for and served as a leader in the organizations.  The applicant’s counsel asserts that SNCO responsibilities are limited to on-duty responsibilities.  However, this is inaccurate, airmen have a responsibility to always meet standards.  Counsel also states the applicant was not on notice to not have used his affiliation with a supremacist organization as community service on his EPR.  At the time of the applicant’s demotion and subsequent discharge, he had approximately 17 years of active military service.  As such, the applicant knew, or should have known, that not only active participation in a supremacist organization was illegal but that this conduct would be inappropriate for an EPR.  This is further evidenced by his admittance he “covertly” included this information on his EPR.  The applicant’s decision to actively participate in a supremacist organization rendered him incapable of serving as a SNCO.  There is no error or injustice in his demotion.  

There is also sufficient evidence to support the administrative discharge.  Counsel contends the applicant had no actual knowledge of a specific duty prohibiting the alleged conduct as to constitute willful dereliction.  He was in a prime position to know the ideology and teachings of the organization.  The organization teaches that the preservation of the “European American” culture and race is the paramount goal.  This by definition is supremacist ideology and the applicant’s knowledge of these ideals results in a willful intent to associate with the organization.  

Counsel also asserts the procedural history of the discharge board rendered the findings unfair.  While the procedural history was unique in that he was served with two amended notifications, the applicant was afforded the opportunity to respond, be heard and present his case to an impartial panel of officer members.  As a result, there was no error or injustice that resulted from the amended notifications.  Counsel also asserts the board was convened by the WG/CC who lacked jurisdiction to do so.  However, this is incorrect.  The WG was not reassigned to USSF until 23 Aug 20.  The applicant was discharged on 14 Aug 20.  As a result, at no time was he under the jurisdiction of the WG/CC who convened the hearing prior to his discharge.  

The complete advisory opinion is at Exhibit E.  

AFPC/DP2SPP recommends denial for removal of the administrative demotion.  As revealed in the administrative discharge board transcript, the applicant knew his involvement in the white supremacist organization was wrong when he lied in an email stating he was going to attend rallies for Black Lives Matter, when in fact that was false.  As a SNCO he was charged to serve as a role model for airmen to emulate and to promote responsible behavior as outlined in AFH 36-2618.  In full awareness of his actions, the applicant used a social network communication platform with the intent to privately post and converse with a fake name to hide his identity opposing views of that of an airman in the Air Force.  It was the intent of the applicant to hide his contribution and engagement in the group for the true depiction of the organization is apparently clear.  AFI 1-1, Air Force Standards, states diversity is a military necessity and airman must avoid offensive and/ or inappropriate behavior on social networking platforms and other forms of communication that could bring discredit or would otherwise be harmful to good order and discipline, respect for authority, unit cohesion, morale, mission accomplishment or the trust and confidence that the public has in the Air Force.  

The complete advisory opinion is at Exhibit F.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 10 Feb 22 for comment (Exhibit G).  In a response dated 3 May 22, counsel states the AFPC/DP2SSR advisory includes no analysis of the issues raised by the applicant.  No attention or response was given to the errors and inequities identified by the applicant.  The advisory and recommendation is entirely useless.

The AFPC/JA advisory repeatedly restates the applicant’s arguments imprecisely and the legibility issue is exacerbated by the intermixing of the applicant’s arguments and jumps back and forth between unrelated issues.  The applicant points out there are limited and specifically delineated bases for the administrative demotion, citing AFI 36-2502 and AFH 36-2618.  The advisory opinion states, “This is inaccurate.  As noted above airmen have a responsibility to meet standards at all times.”  The invocation of the generic mantra is a deflection and a non-sequitur.  The relevant question is whether the applicant’s conduct fell within a specifically delineated basis for the administrative demotion under the relevant authorities.  The advisory opinion provides no citation to any such basis and the applicant maintains his original position that none exists.  The advisory opinion seems to also classify the assertion he was not on notice that he should not have used his affiliation with a supremacist organization as community involvement as part of his objection for the administrative demotion; however, this is a substantive mischaracterization of his position.  The standard is not whether the applicant should not have” engaged in the specified conduct.  By using the generic language, the advisory opinion side steps the substantive issue whether a specific military duty prohibited the conduct at issue.  The applicant discussed at length the proper sources of duties, the government’s obligation to establish a specific duty with particularity, and the government’s failure to do so in the case.  The advisory opinion interjects unnecessary confusion into the issue by using the term “willful” generically, when it is actually a term of art, per the MCM and the Military Judge’s Bench book.  AFI 36-3208, paragraph 5.52 provides that “Airmen are subject to discharge for misconduct based on the commission of a serious offense if a punitive discharge would be authorized for the same or a closely related offense under the MCM.  The “serious offense” alleged was “dereliction of duty.”  The MCM provides that dereliction of duty may be committed either “willfully” or “through culpable inefficiency.  A punitive discharge is authorized for willful dereliction of duty, but not for negligent dereliction of duty.  In the applicant’s case, there was no competent evidence present at the discharge board that the applicant had actual knowledge of the underlying duties for allegations 3 and 4.  The advisory opinion is cryptic and conclusory and does not substantially address the issues or their impact on the fairness of the applicant’s discharge.  It is true the applicant was not deprived of his rights to respond and appear before the board, and nowhere does he allege he was denied these rights.  However, the mere fact that he was not denied of all rights is a non-sequitur; it does not respond in any substantive way to the applicant’s argument.  Next, the short paragraph regarding the lack of jurisdictional authority is an oversimplification.  The realignment and re-designation on of units in the aftermath of the establishment of USSF caused incongruence.  The applicant requests the Board give full consideration to the issue of jurisdiction and hold the government to its burden of establishing competent jurisdiction.  The advisory opinion also does not respond to the applicant’s assertion he was unfairly prejudiced by the government’s invocation of the 2017 “Unite the Right” rally in Charlottesville, VA; which he had absolutely nothing to do with.  To include a deceptive and inflammatory juxtaposition of a photo of him with a photo of participants at said rally and use of the irrelevant and extremely prejudicial evidence was legally indefensible, and the advisory opinion does not even attempt to defend it.  The applicant had a right to be judged based on his own conduct, not the unrelated conduct of others.  This was a grave injustice and is notable that the advisory opinion did not event attempt to justify the way it was handled at the board.

The AFPC/DP2SPP advisory is primarily a lengthy procedural history of the case.  It is of minimal relevance to the Board’s analysis.

The complete response is at Exhibit I.  

 FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant did not exhaust 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 AFPC/DP2SSR, AFPC/JA and AFPC/DP2SPP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Counsel asserts the applicant was unaware and not put on notice his off-duty participation in a white supremacist organization violated Air Force standards.  He further contends AFH 36-2618 does not cover standards for off-duty behavior.  However, it is clear adherence to Air Force core values and standards of conduct and behavior as addressed in AFH 36-2618 are applicable and expected whether an airman is on or off duty.  Further, the Board is persuaded the applicant with more than 16 years of service and in the rank of master sergeant would have known his participation in a white supremacist organization violated Air Force standards. The Board also opines that because the applicant knew his participation in a white supremacist organization violated Air Force standards is why he did not disclose his participation but instead claimed it as community involvement.  With respect to counsel’s assertion the administrative demotion was improper, the Board agrees with counsel the applicant’s commander could have pursued NJP rather than the administrative demotion; however, this does not nullify the administrative demotion.  The Board finds the administrative demotion for failure to fulfill SNCO responsibilities based on the applicant’s admitted participation in a white supremacist organization over a continuous period of time was permissible, in accordance with AFI 36-2502 and within his commander’s authority and discretion.  With respect to the discharge proceedings, counsel asserts there were procedural errors pertaining to his appeal and argues whether the dereliction of duty was “willful.”  The Board recognizes the applicant was served with two amended notifications; however, the applicant was afforded due process and presented his case to a board hearing.  Since the Board finds the applicant as an active duty Air Force SNCO would have known participation in a white supremacist organization was prohibited, the Board concludes his misconduct was “willful.”  It was his own decision to join, actively participate and assume leadership roles within the known white supremacist organization.  The applicant’s discharge recommendation and request for lengthy service consideration were reviewed and considered by the SAFPC and the discharge recommendation was upheld.  With respect to counsel’s argument the convening authority did not have jurisdiction due to the reorganization of Air Force Space Command and the United States Space Force, the Board finds the analysis provided by AFPC/JA sufficient to conclude there were no jurisdictional issues.  Counsel also requests the applicant receive constructive service credit and be retired in the rank of master sergeant.  However, the Board does not find it in the interest of justice to credit the applicant for a period of service he did not serve for the sole purpose of awarding a military retirement he did not earn through service.  The Board also notes the applicant filed an IG complaint on 8 Oct 19; however, there is no evidence the applicant was reprised against in violation of 10 U.S.C. § 1034 for making protected communication.  The applicant indicated he did not want to pursue an Article 138 or Equal Opportunity complaint and concurred with the closure of his IG complaint.  In view of the above, 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-2021-02120 in Executive Session on 17 May 22:

 , 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 20 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Documentary evidence, SAFPC, dated 3 Aug 20.  
Exhibit D:	Advisory Opinion, AFPC/DP2SSR, dated 25 Oct 21.
Exhibit E:  Advisory Opinion, AFPC/JA, dated 17 Nov 21.
Exhibit F:  Advisory Opinion, AFPC/DP2SPP, dated 22 Nov 21.  
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 10 Feb 22.
Exhibit H:	SAF/IG Applicant’s IG Complaint, w/atchs, dated 10 Oct 19 (WITHDRAWN).  
Exhibit I:  Counsel’s response, dated 3 May 22.  

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.