RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02606

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXX
	 
  	HEARING REQUESTED: NO 	 

APPLICANT’S REQUEST

1.  The Board make a recommendation to the Secretary of the Air Force (SecAF) he be promoted to the rank of major (O-4).  

2.  In the alternative, he be considered for promotion to major by a central selection board (CSB) or a special selection board (SSB).  

3.  His Article 15, and any related documents, be removed from his officer selection record (OSR).

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states he was twice non-selected for promotion as a result of the resurrection of an adverse report from 2012.  The unjust record relates to an AF Form 709, Promotion Recommendation Form (PRF), with a Do Not Promote (DNP) recommendation.  The PRF stated he received an Article 15 for drinking and driving under the influence (DUI) in 2012.  Even with the adverse information, the applicant could arguably have been promoted had it not been for the disadvantageous change in policy.  A decade elapsed since the adverse action.  Since May 12, he was promoted twice.  The Article 15 was presumably not in his OSR, which precluded its review by the two successful promotion boards.  It is nonsensical that the Air Force claims the applicant still has a fundamental character flaw in 2021, such an opinion ignores his subsequent approved promotions.  He deserves the benefit of doubt.  During the past 10 years, he has not been subject to any censure, reprimand, or admonishment.

His promotion board should have occurred on 25 Jan 21, five weeks before the alteration of the law.  However, the CY21 Major Medical Service Corps and Nurse Corps (MSC/NC) board was inexplicably delayed until 1 to 5 Mar 21.  The inordinate delay allowed the new historic adverse information rule to undermine his fair chance at promotion.  Consequently, as a matter of equity and the cited case law, his right to a fair and just promotion board was denied.  

It is also reasonable to conclude the Article 15 was tantamount to an insufficient fact finding.  The conclusion was inconsistent with the provided attestations evidencing he did not drive.  It cannot be overstated that his wing commander (WG/CC) only found one eye-witness credible, the police officer; yet, he never spoke to the police officer or confirmed the merit of his recollection.  With due deference, it is not beyond the realm of human existence to claim that not all police officers are presumptively credible.    

He is deserving of justice and his special health care profession encourages it per 10 U.S.C. § 615, which states the board considering promotion to a grade below colonel (O-6) give consideration to an officer’s clinical proficiency and skill as a health professional to at least as great an extent as been exemplary.  Several character letters are submitted to provide evidence of his character.  His officer performance reports (OPR) have been commendable.  The Air Force has spent an extraordinary amount of money and resources to make him an invaluable member.  In Jul 20, he received his medical-surgical nursing credential and was also awarded a certificate in epidemiology, prevention and infection control.  He is the group’s infection officer and most recently attended a trauma nursing core course and the emergency nursing pediatric course.  He has also undergone selection to participate in the language enabled airmen program (LEAP).  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a captain (O-3) in the Air Force.  

AF Form 3070C, Record of Nonjudicial Punishment Proceedings (Officer), dated 29 Aug 12, shows the applicant received an Article 15 for operating a motor vehicle while intoxicated on or about 27 May 12.  The Article 15 was filed in the applicant’s OSR.  

On 23 Jan 20, the applicant requested his WG/CC remove the Article 15 from his OSR.  He stated he understood the creation of the Article 15 and continued to maintain his innocence.  On 27 May 12, Memorial Day weekend, his brother was going to drive them to a festival.  He had gone outside to the car to listen to music while his brother was still in the house getting ready.  He was fumbling through the compact discs when the police pulled up and started asking questions.  He cooperated and advised he was not driving the vehicle.  It was his understanding the neighbor had called the police for loud music, which was why the police had come to his brother’s residence.  The misconduct was captured on his OPR for the period 8 Jan 12 to 7 Oct 12.  After an investigation all charges were dropped.  Thus, the arrest is deemed to not have occurred.  Although his car was parked in front of his brother’s house and he was around his car, he was not the driver and did not operate a vehicle while under the influence.  He was not pulled over and the officer did not observe him driving the car.  The only witness later corrected his judgement.  He requested early removal of the Article 15 so he could continue his career and help his country in the best possible way, while maintaining a professional image, both on and off duty.  

AF Form 77, Letter of Evaluation (LOE), for the period of 8 Jan 12 to 7 Oct 12, shows the applicant was not rated for the period and the evaluation was removed by the order of the Chief of Staff.  

AF Form 77 for the period 27 Apr 17 to 24 Jun 18, shows the applicant was also not rated for this period and the evaluation removed by the Chief of Staff.  

In a memorandum dated 19 Nov 20, the applicant’s WG/CC stated he approved the applicant’s 23 Jan 20 request that his Article 15 be removed from his OSR based on the information provided.  However, subsequent to approving the request, he was provided the facts and circumstances and believed the Article 15 should be placed in his OSR.  The WG/CC directed the Article 15 for his DUI in 2012 be placed back into his OSR.  

In an undated letter, the applicant’s WG/CC informed him he was not selected for promotion by the P0420A CSB.  

The applicant provides AF Form 709 for the CY21A Major, (MSC/NC) Promotion Board (P0421A) showing the applicant received a “DNP” promotion recommendation.  The PRF stated he received an Article 15 for DUI in May 12.  

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

APPLICABLE AUTHORITY/GUIDANCE

Per 10 U.S.C. § 624, When the report of a selection board is approved by the President, the Secretary of the Military Department concerned shall place the names of all officers approved for promotion within a competitive category on the promotion list.  In this regard, the AFBCMR which serves on behalf of the Secretary of the Air Force, is without authority to grant appointments and directly promote officers.  

DAFPM 2021-36-03, Adverse Information for Total Force Officer Selection Boards, dated 14 Jan 21and Section 502 of the National Defense Authorization Act (NDAA) for Fiscal Year 2020, signed on 20 Dec 19, as codified in 10 U.S.C. § 615(a)(3) requires all adverse information to be filed in an officer’s master personnel records group and OSR for consideration by promotion boards.  The new policy removed the authority for WG/CCs or issuing authorities to direct removal of derogatory data from the OSR effective 1 Mar 20, as previously permissible in AFI 36-2907, Adverse Administrative Actions, and AFI 36-2608, Military Personnel Records.  Adverse information requiring mandatory filing in the OSR and master personnel records group includes but is not limited to Article 15s, LORs and any substantiated adverse finding or conclusion from an investigation or inquiry.  Only the AFBCMR may remove the adverse information from the officer’s record.  

AIR FORCE EVALUATION

DAF/JA recommends denial.  The applicant on 23 Jan 20 requested the Article 15 be removed from the OSR and his WG/CC granted the request.  The then applicable rule in AFI 36-2608, Military Personnel Records System, allowed officers to submit such a request after the officer had been given one in the promotion zone (IPZ) or above the promotion zone (APZ) consideration.  The applicant’s situation met the requirement since he had been promoted since the nonjudicial punishment (NJP).  However, on 19 Nov 20, his WG/CC decided the NJP should be placed back into his OSR.  There were two new pieces of information that caused the WG/CC to rescind the initial order.  The applicant told the WG/CC he was not driving the car but was only in the parked car to retrieve a compact disc and that civilian authorities had dropped the DUI charge, leading to his WG/CC to believe the NJP was unjust.  However, the WG/CC learned that according to the official written account by the police who cited the applicant for the DUI, the officer witnessed the applicant operating the vehicle in an erratic manner.  He also learned the DUI charge was dropped by civilian authorities because the Air Force took over jurisdiction, not because the charge was deficient.  DAF/JA finds no error or injustice in the underlying NJP for DUI.  He accepted the Article 15 proceedings and there is nothing in the case history to substantiate his claim the Article 15 was never properly substantiated and that it was tantamount to an insufficient factual finding.  

The applicant now challenges the police officer’s credibility but the forum for such cross-examination should have been at the court-martial, which he declined.  He also incorrectly states the standard of proof at NJP should have been beyond a reasonable doubt.  The NJP findings and punishment received multiple levels of review and were determined to be legally sufficient, and DAF/JA agrees.  There was ample evidence from the police officer that the applicant was operating a vehicle under the influence of alcohol.  

Through the National Defense Authorization Act (NDAA) for Fiscal Year 2020, Congress required the military to furnish adverse information to selection boards considering active duty officers for promotion to O-4 and above.  On 16 Dec 20, DODI 1320.14, DOD Commissioned Officer Promotion Program, was issued to implement the congressionally mandated change.  On 26 Feb 21, the SecAF ordered a policy change via a Department of the Air Force Policy Memorandum (DAFPM) 2021-36-03 on Adverse Information for Total Force Officer Selection Boards, to comply with the NDAA and the DODI.  The DAFPM is clear that waivers to the policy are not permitted.  It further states that NJPs, among other adverse information, will be permanently placed in the master personnel records group and that except for the set aside of a court-martial or a NJP action, removal of adverse information may only be directed pursuant to an AFBCMR recommendation.  

It should be noted that pursuant to 10 U.S.C. § 624, promotions of military officers to the grade of O-4 and above shall be made by the president with the advice and consent of the Senate.  When 10 U.S.C. § 615(a)(3) (the policy change at issue) and 10 U.S.C. § 624 are viewed together, it is apparent Congress enacted the NDAA provision to ensure transparency to the United States Senate, which in turn gives transparency to the American public.  The applicant’s assertion the rule is unfair loses merit.  In fact, the WG/CC’s decision to remove the NJP in Jan 20 based on incomplete information was the kind of lack of transparency that Congress sought to remedy.  

In the interest of full disclosure, contrary to counsel’s statement that the applicant’s conduct since 2012 has been exemplary, the applicant was investigated for allegations of domestic violence after a civilian arrest on 22 Apr 18.  The police responded to a report of domestic battery reported by the applicant’s wife.  The incident happened while she was living with her sister since Feb 18.  She had left the home shared with the applicant because of allegations of domestic violence.  The applicant allegedly traveled to bring her and their son back home and allegedly during an argument he attempted to physically drag his wife out of the apartment and even struck her on the back of her head.  The incident was witnessed by the sister’s family and the applicant was arrested and booked into the local jail.  The case was closed by the Air Force on 15 Jun 18 with disposition of “other administrative action.”  The applicant’s group commander (GP/CC) issued a LOR and the Air Force did not pursue NJP or court-martial.  The record does not show what the ultimate disposition was by the state authorities.  The record is unclear but there is indication his wife declined to pursue the case. The incident contradicts the applicant’s representation of a clean record.  Such an arrest history, plus his history of being less than forthcoming to his WG/CC is relevant for the Board to consider when viewing the character letters the applicant provided.

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 30 Jun 22 for comment (Exhibit D), and the applicant replied on 11 Jul 22.   The applicant provides a sworn affidavit.  He states he always told his WG/CC since 2012 he was not driving the car.  The police report references two police officers and one did not say he was driving.  The civilian authorities dismissed the DUI charge.  He requested the WG//CC remove the NJP from his OSR per the AFI since he had been passed over for promotion once and informed him the authorities had dismissed the charges and turned the case over to the Air Force, or words to this effect.  He specifically recalls taking the 2012 sealed order with him.  His WG/CC agreed and stated he would help remove the NJP.  He later discovered the police report and placed the NJP back in his OSR.  The AFI clearly stated he had the right to request removal of the NJP.  

When his commander issued him the LOR for the 2018 domestic violence case, the WG/CC did not have the state issued innocence order, which is why the LOR was removed.  The exonerating Superior Court order came after the fact.  The Factual Innocence Order was shown to his commander who rescinded everything, to include the LOR.  The 2018 incident was an unfortunate event; however, there was no dragging of his wife, nor did he ever hit her.  It is also perplexing how this information was accessed by the Chief of Clemency and Parole, who then used the judicially destroyed records to provide the derogatory advisory opinion.  

The applicant provides a letter from his mission support group commander (MSG/CC) dated 10 Apr 20 for removal of his 2018 referral OPR and the Superior Court Order Finding Factual Innocence.

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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Counsel contends the Article 15 was unjust and the result of insufficient fact finding; however, counsel has provided insufficient evidence to substantiate this to be the case. While the applicant has maintained his innocence he was not driving, the Board finds the evidence to show the contrary.  Furthermore, in the applicant’s request for removal of the Article 15 from his OSR dated 23 Jan 20, he stated he understood the reason for the creation of the Article 15.  The applicant in his rebuttal to the DAF/JA advisory states it was within his right to request the Article 15 be removed from his record.  In this respect, the Board agrees AFI 36-2608 permitted officers to request the WG/CC remove adverse information from their OSR.  Nonetheless, the Board also finds it was within the WG/CC’s authority to determine that on 19 Nov 20, upon receiving additional evidence, the NJP should remain in the OSR.  While counsel contends it is nonsensical the derogatory information remains in his records a decade later and after being selected for promotion, the Board notes the National Defense Authorization Act (NDAA) for Fiscal Year 2020 and 10 U.S.C. § 615(a)(3) requires adverse information to be reviewed by promotion boards, to include historical adverse information.  Counsel also contends the applicant was denied fair promotion opportunity since the CY21 Major MSC/NC board was delayed from Jan 21 to Mar 21.  However, the Board notes DODI 1320.14 implementing the review of adverse information by officer promotion boards was issued on 16 Dec 20.  Further, there is no evidence the promotion board was not convened in accordance with regulations or that the applicant was treated differently than his peers who also had historical adverse information in their records.   The Board notes counsel also requests the Board recommend to the SecAF that the applicant be promoted to the rank of major; however, it is not within the Board or the SecAF’s authority to direct the promotion of an officer to major per 10 U.S.C. § 624.  The Board also considered the applicant’s specialty as a health care professional and clinical proficiency per 10 U.S.C. § 615; however, the Board finds insufficient evidence to grant relief on this basis.    Therefore, 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-2021-02606 in Executive Session on 30 Aug 22:

 , Chair, AFBCMR
 , 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 3 Aug 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 28 Jun 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 30 Jun 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 11 Jul 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.