RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-02728

XXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXX
	
	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

He requests the following based on allegations of reprisal pursuant to DoDD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034.   

Remove the nonjudicial punishment, dated 15 Nov 20, from his official military record, and any other relief that is equitable and just.

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contended he was found guilty of violating two specifications of Article 92, Uniform Code of Military Justice (UCMJ).  He appealed the nonjudicial punishment (NJP) and received no relief.  Area Defense Counsel submitted a request for set aside, and civilian counsel followed with a supplemental request for relief, on behalf of the applicant.  Counsel received communication from the commander’s Staff Judge Advocate that the requests for relief were denied.

He further contended there were several errors with the NJP issued to the applicant, which constitute sufficient unusual circumstance to warrant setting aside the NJP in accordance with Air Force Instruction (AFI) 51-202, Nonjudicial Punishment, paragraph 5.7., and as a matter of fairness, justice, and equity.  First, the facts do not support the finding of guilt for either charge of which the applicant was found guilty.  The charges do not allege, nor did the command’s evidence contain, any citation or proof of any provision that prohibits dissemination of investigative information when it is for the purpose of closing said investigation.  The facts clearly demonstrate the applicant’s disclosures were made in the line of duty for the purpose of confirming his investigative approach, and merely sought professional advice as an azimuth check on his work.  Disclosure of case-specific information under such circumstances does not constitute a negligent dereliction of duty.  As such, the finding of guilt as to each charge was erroneous and the NJP should be set aside.

Additionally, there is reason to believe the applicant was not provided with all evidence developed in conjunction with the Commander Directed Investigation (CDI).  Examples are the statements made by the applicant, and that of another Airman, during the investigation which were not included in the evidence turned over to the defense.  Further, evidence was withheld via significant redaction of another Airman’s statement.  The failure to fully disclose these statements constitutes an extremely serious due process violation.  It is fundamental to the justice system that anyone accused of wrongdoing is entitled to know the evidence against them, and they be provided evidence that may be exculpatory in nature.  More specifically, Air Force policy requires disclosure of a CDI to the defense so the member can respond to an administrative action.  There is evidence the applicant was denied the full CDI, and evidence withheld from the defense or commander who implemented the NJP, or both.  This due process violation renders the NJP null and void, and the NJP should be set aside.

Further, the adverse actions against the applicant are the product of reprisal.  Department of Defense Directive (DoDD) 7050.06, Military Whistleblower Protection, provides that service members will be free from reprisal for making or preparing to make, or being perceived as making or preparing to make, a protected communication.  The same directive identifies the types of communications that can be protected, and defines reprisal.  In support, the applicant provided a declaration and timeline of his assignment, and recounts that he, his wife, and another service member made multiple protected communications to command regarding issues within the unit.  The applicant’s spouse was sexually harassed upon their arrival, an issue they attempted to raise with the chain of command, without success.  Also reported were issues of use of racial slurs towards minorities.  On 23 Jan 21, the applicant filed an Inspector General complaint for reprisal against his command.

The command continued to take adverse action against the applicant without justification and in reprisal against him, by denying his request for reenlistment after originally signing the AF Form 418, Selective Reenlistment Program (SRP) Consideration/Denial of Continued Service for Airmen, approving the request.  There is no question the applicant’s protected communication preceded his request for reenlistment.  It is also clear the command disciplined the applicant more harshly than others who engaged in the exact same alleged misconduct.  The nature and severity of these actions have no legitimate reason other than to retaliate against the applicant for making protected communications.  As such, it would be unfair, unjust, and inequitable to allow the NJP to remain in his official military record.

Finally, evidence indicates the applicant had years of sustained superior performance.  He deployed multiple times and saved multiple people’s lives.  His superlative military character and service are affirmative evidence he would not have acted in the way alleged in the NJP.  Failure by command to set aside the NJP in light of the errors referenced above constitutes an injustice.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 6 Nov 20, according to AF Form 3070B, Record of Nonjudicial Punishment Proceedings (TSgt thru CMSgt), the applicant was offered NJP under Article 15, UCMJ, for: (1) Failure to protect private information collected during the course of his duties, between on or about 4 Oct 20 and on or about 19 Oct 20, as it was his duty to do, in violation of Article 92, UCMJ; and (2) Failure to refrain from discussing offenses or incidents, except in the line of duty, between on or about 4 Oct 20 and on or about 19 Oct 20, as it was his duty to do, in violation of Article 92, UCMJ.

On 13 Nov 20, the applicant indicated he consulted with a lawyer, waived his right to court-martial, accepted NJP proceedings, and requested a personal appearance before the commander.

On 15 Nov 20, the commander decided the applicant committed one or more of the alleged offenses and imposed the following punishment: (1) Reduction to the grade of E-5, suspended through 14 May 21, after which time it would be remitted without further action, unless sooner vacated; and (2) Reprimand.

	On 20 Nov 20, the applicant elected to appeal the NJP and submitted matters in writing.

On 23 Nov 20, after considering all matters presented, the commander denied the applicant’s appeal.

On 25 Nov 20, after considering all matters presented, the Appellate Authority denied the applicant’s appeal.

On 23 Apr 21, according to documentation provided by the applicant, Area Defense Counsel submitted to all reviewing authorities, a request for Set Aside or Other Appropriate Relief, on his behalf.

On 17 May 21, according to documentation provided by the applicant, civilian counsel submitted to all reviewing authorities, a Supplemental Request for Relief, on his behalf.

On 20 May 21, according to documentation provided by the applicant, civilian counsel received an email communication, from the Staff Judge Advocate, stating the applicant’s requests for relief had been denied.

On 8 Jun 21, the applicant was furnished an honorable discharge, with Narrative Reason for Separation: Completion of Required Active Service, Separation Code KBK (Completion of required active service), Reentry Code 1J (Eligible to Reenlist, but elects separation), and credited with 12 years and 6 months 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.

APPLICABLE AUTHORITY/GUIDANCE

Per 10 U.S.C. § 1034 and AFI 90-301, Inspector General Complaints Resolution, reprisal against military members for making protected disclosures is prohibited.  
 
AIR FORCE EVALUATION

DAF/JA recommends denying the application.  The record contains insufficient evidence or allegation of error or injustice tending to undermine the NJP action or imposed punishment.  The applicant received NJP for two violations of Article 92, UCMJ, for being derelict in his duty by negligently sharing information regarding a criminal investigation outside the line of duty and for failing to protect private information collected in the course of his duties.

The facts underlying the NJP concern a criminal investigation for which the applicant was an investigator, and allegations of misconduct by two members of his Security Forces unit.  One piece of evidence was a video from a local cab company that could have incriminated the two unit members.  On 16 Oct 20, the Security Forces commander learned the video evidence was shared with various unit members not involved in the investigation, to include the two Airmen accused of the misconduct.  Upon questioning, several unit members informed the commander the applicant was the source of the leaked evidence.  In addition, the applicant failed to secure the case file, for which he was responsible, leaving it unattended on top of a desk.  One of the accused unit members was able to review the information contained in the file about himself.  A CDI was conducted and the applicant’s misconduct was substantiated.

The screen-grab of a text message provided as evidence by the applicant does not support his contention he was seeking an azimuth check with a colleague.  It does show the applicant revealed details of a sensitive investigation without any indication he was seeking help with the investigation.  Instead, it can be interpreted as an unnecessary and unprompted boast intended to self-aggrandize and gossip.  The commander had sufficient evidence to support this interpretation.  Most salient, the two accused unit members received confidential evidence against them precisely because the applicant shared it through non-official channels, and at least one of the accused members viewed an investigation case file on himself.  A commander could reasonably find that these facts, on their face, constitute proof of dereliction of duty.

The applicant also alleged due process violations stating he was not provided the entire CDI against him, to include certain witness statements; however, his allegations were not supported with evidence.  Even if the allegations alone rose to the level of evidence, they do not rise to the level of a due process violation in administering NJP, an administrative process centered on the military commander’s need for discretion and flexibility in ensuring good order and discipline.  While due process rights do attach to NJP, they are limited in comparison to what is afforded in a judicial process.  The applicant’s recourse against any alleged due process violations would have been to refuse to accept NJP.  Further, the allegedly withheld witness statements were reviewed, were not exculpatory, and would not have reasonably altered the commander’s determination.  In fact, some of the allegedly withheld evidence supports the applicant’s guilt; hence, no due process violation was found.

Regarding the applicant’s allegation of reprisal and his pending Inspection General (IG) compliant, the wing IG found the allegation to be unsubstantiated, and the Department of Defense IG (DoD/ IG) office conducted its next-level review on 2 Nov 21, concurring with that finding.

After careful consideration, DAF/JA found there was no error or injustice in the NJP, and there was sufficient evidence for the NJP authority to find misconduct.  

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 22 Mar 22 for comment (Exhibit D), and the applicant replied on 3 Apr 22.  In his response, counsel, on behalf of the applicant, contended the advisory opinion was nothing more than a conclusory and biased opinion, and its erroneous and unhelpful recommendation should be disregarded by the Board.  The advisory opinion contains some topical discussion of the specific facts of the case, but gets important elements wrong.  It entirely ignores the legal and factual arguments presented in the original filing.  Further, the advisory opinion dismisses the due process violations raised in the original filing, claiming the applicant did not provide evidence to support this contention, and goes so far as to assert the withholding of, or failure to provide, evidence would not rise to the level of due process violation in the context of NJP.  This is both incorrect and wildly inappropriate.  Due process is the cornerstone of the American justice system.  Finally, the advisory opinion dismisses the applicant’s claim of reprisal citing a lack of evidence.  His declaration constitutes sworn testimony and is evidence.  The applicant provided evidence in support of his request for relief, and a detailed analysis was presented in the original filing.  The Board’s attention is directed to the original filing for careful review.

Additionally, the applicant provided a statement contesting the evidence used in his NJP, stating the witness was instructed to write down specifics and not elaborate on anything, and this witness knowingly sent him the video link, but his punishment was limited to a verbal counseling and nothing filed in his personnel file.  Two other individuals who used their rank and position to surpass security protocols only received letters of reprimand from the commander.  He doesn’t understand how sending a link in official duty resulted in a harsher punishment than three individuals who knowingly committed offenses.

He further contended the information regarding the unattended case file is false.  The case was left in his unsecured personal locker in the flight chief’s office, which is protected by a cypher lock that meets Air Force guidance for securing For Official Use Only material.  The office contained approximately 15-20 cases in folders, but he placed this case in his locker to prevent accidental viewing and rumors.  His thought was if someone went into his locker to look at the case, then it had to be malicious in intent.

His punishment was harsher than everyone’s and he was removed from active duty on such short notice, he did not get to attend the Transition Assistance Program seminar, leaving him ill-prepared for civilian life.  He was told on his final day on active duty that his commander had non-concurred with his reenlistment.  He was extremely transparent throughout this issue and hopes someone finds this punishment disproportionate and heavy-handed considering the totality of the consequences.  He is now divorced and dealing with depression and anxiety because of these issues.  He lost his active duty career, where he was a superior performer for over a decade, and is now at a point where he has to go to therapy at least once a week and take numerous medications to try to process what happened because of these unfair proceedings.

The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

After a thorough review of the application, supporting documents, and the Inspector General case file, DAF/IGQ cannot make a recommendation to remove the NJP command action.  The applicant was directed to conduct a Security Forces investigation into an incident that occurred on 4 Oct 20, and during that investigation transmitted a video link of footage taken at the time of the incident.  On 19 Oct 20, an investigation was initiated alleging the applicant breached the Privacy Act by sending materials with Personally Identifiable Information in the video link to a unit member who did not have a valid investigatory need to know.  The investigation found the allegation against the applicant was substantiated.  On 6 Nov 20, an Article 15, NJP was issued to the applicant for this Privacy Act breach.

The applicant submitted a complaint alleging reprisal for protected communications. The DAF/IG case was opened on 12 Jan 21 and closed on 19 Nov 21, with both allegations of reprisal found to be Not Substantiated.  The reprisal complaint was fully processed in accordance with AFI 90-301 and DoDD 7050.06, culminating with a final DoD IG review and approval of the finding.

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 14 Jun 22 for comment (Exhibit G), and the applicant replied on 14 Jun 22.  In his response, counsel, on behalf of the applicant, contended the advisory opinion does not provide any additional facts or context; therefore, it is ultimately unhelpful to the Board.  The applicant provided evidence in support of his application for relief.  Nothing in the advisory opinion adds to the understanding of this case and should be disregarded.  He further encouraged the Board to disregard the erroneous and unhelpful recommendations made by the advisory opinion, and instead, grant the applicant the relief requested in his original filing. 

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 not the victim of an error or injustice.  The applicant claims his punishment was harsher than other personnel engaged in the exact same alleged misconduct and his due process rights were violated.   However, the Board finds insufficient evidence the applicant was denied any rights entitled to him under the NJP process, to include his right to demand trial by court martial, which would have required a different legal standard.  While due process rights do attach to NJP, they are limited in comparison to what is afforded in a judicial process.  The applicant’s recourse against any alleged due process violations would have been to refuse to accept NJP and demand trial by court-martial. By accepting the Article 15 forum, the applicant entrusted to his commander the responsibility to decide if he had committed the alleged offenses.  The applicant has not provided any evidence his rights were violated during the NJP process, or the punishment exceeded the maximum authorized by the UCMJ.  In cases of this nature, the Board is not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  The Board does not find the commander abused his discretionary authority, the action was arbitrary or capricious, and notes two levels of legal review found the Article 15 legally sufficient.  Therefore, 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.   Given there is no basis to set aside the NJP action, the applicant’s request for any additional relief is not favorably considered.  In view of the forgoing, the Board recommends against correcting the applicant’s records.

4. The applicant further contends the adverse actions against him are the result of reprisal because he, his wife, and another service member made multiple protected communications to command regarding issues within the unit.  In addition, he states his spouse was sexually harassed upon their arrival, an issue they attempted to raise with the chain of command, without success.  Also reported were issues of racial slurs towards minorities.  However, as noted by DAF/IGQ, the applicant submitted a complaint alleging reprisal; however, his reprisal complaints were found to be Not Substantiated and were fully processed in accordance with AFI 90-301 and DoDD 7050.06, concluding with a final DoD IG review and approval of the finding.  Nevertheless, based on the authority granted to this Board pursuant to 10 U.S.C. § 1034, the Board reviewed the complete evidence of record to reach their own independent determination of whether reprisal occurred. Based on their review, the Board concludes the applicant and counsel have failed to establish his commander’s decision to impose NJP was due to reprisal for his making a protected communication.  Therefore, in the absence of persuasive evidence to the contrary, the Board does not find that the applicant has been the victim of reprisal pursuant to 10 U.S.C. § 1034.

5.  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-2021-02728 in Executive Session on 18 Aug 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 26 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 10 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Counsel, dated 22 Mar 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 3 Apr 22.
Exhibit F:	Advisory Opinion, DAF/IGQ, dated 25 May 22.
Exhibit G:	Notification of Advisory, SAF/MRBC to Counsel, dated 14 Jun 22.
Exhibit H:	Applicant’s Response, w/atchs, dated 14 Jun 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.