RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00407

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXX
	 
  	HEARING REQUESTED: NO	 

APPLICANT’S REQUEST

1.   His nonjudicial punishment (NJP) be removed from his record.

2.   His delayed promotion to the rank of major (O-4) be restored with date of rank (DOR) and effective date 1 Feb 21.  

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states the allegations in the NJP are not supported by evidence and the delay of promotion was based on the untrue allegations.  The investigation never collected any sworn statements from witnesses or even documented any witness statements in their own words.  Most of the allegations were not even supported by the alleged victim.  Further, the legal review of the investigation did not find probable cause for most of the charges.  

On the evening of 3 Jun 19 and morning of 4 Jun 19, he and his now ex-wife, got into an argument at their residence.  At one point, he gathered his items and left the house intending to sleep in his car.  He retrieved his firearm for security since he would be sleeping in a store parking lot.  She called two friends to help gather her things so she could leave as well.  At that point, he returned to the house to ensure their children were taken care of.  He was confronted by her friends.  The various versions of the events were reported in the security forces squadron (SFS) report of investigation (ROI).  He was alleged to have communicated threats, used profanity in public and acted in an intimidating manner with his firearm to his then wife.  The details of the allegations were inconsistently reported and law enforcement never clarified any of the inconsistencies.  After the incident, he explained to his command the display of his firearm was an obvious misunderstanding and he did not make threatening comments as alleged.

Based on the ROI, he was charged with communicating a threat, simple assault and conduct unbecoming an officer.  In his response to the NJP, he admitted to the general circumstances but denied communicating any threats, assaulting his then wife or engaging in unbecoming conduct.  However, he was found guilty and his appeal was denied.  Under Article 115, Uniform Code of Military Justice (UCMJ), communicating a threat requires certain language expressing an intent to injure and that the communication was wrongful.  Whether a threat is wrongful is subjective.  If a statement is not intended to be a threat, then it is not an offense under 10 U.S.C. § 915.  The advising judge advocate (JA) reviewed the ROI and did not opine there was probable cause for the offense of communicating a threat.  However, it was charged in two specifications.  It was improper to find him guilty of two specifications of communicating a threat when the evidence by law failed to support the specifications.  The beyond a reasonable doubt standard of proof at an Article 15 is not technically required; however, AFI 51-202, Nonjudicial Punishment, notes that Article 15 should not be used if such proof is lacking.  

The allegation of simple assault is clearly erroneous because no aggravated assault is stated or alleged.  Correction to the NJP is warranted to remove the improper reference to Article 128b.  The substance of the allegation is also obviously a misunderstanding.  He had his gun in his waistband as he took the gun with him when he initially left the house as he was planning to sleep in his car.  He was speaking to his then wife as she was attempting to drive out of the driveway.  He realized he had the gun in his waistband.  He asked her if she was afraid of it and told her she could have it.  He handed her the firearm without pointing it at her.  His statement was deliberately modified in the NJP.  The additional context as supported by a witness was that he was surrendering the gun to his wife because he realized she did not want him to have it.  The removal of the portion of his statement changed the inferred meaning.  It was not a threat or an assault as he was offering to turn over the firearm after realizing it was causing distress.  No unlawful assault occurred as documented by the witness.  The allegation is not legal or factually sustained.

The allegation of conduct unbecoming an officer and gentlemen (Article 133, UCMJ) was that he was alleged to have made the comments while in uniform.  Nowhere in the ROI is the applicant alleged to have been in uniform while in the driveway in the middle of the night.  The allegations are inflated in an attempt to support the NJP.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

Counsel provides SFS ROI, dated 14 Jun 19 concerning the domestic assault investigation.  On 4 Jun 19, his then wife’s commander contacted the SFS after she reported the prior night’s incident.  On 3 Jun 19, they had a marriage counseling session with a chaplain when the applicant confessed to multiple extramarital relationships.  Later, the applicant and his then wife got into a verbal argument.  At some point during the incident, the applicant flashed a gun from his waist band and made a comment to his then wife, “Is this what you want?”  The applicant became angry that photos had been removed.  He then aggressively began tearing apart the residence and smashing pictures on the wall.  She texted two friends to come to the residence.  She related she was fearful for herself and their children who were in the vehicle.  The ROI shows the investigator on 7 Jun 19 coordinated with the staff judge advocate who opined there was probable cause to believe the applicant was the subject of the investigation and charged with Article 128, UCMJ (Domestic Simple Assault); however, she did not believe the circumstances and the degree of charges met the requirements to collect a DNA sample but that it did meet the requirements to take fingerprints.  On 7 Jun 19, the applicant was advised of his Article 31 rights for Article 128, UCMJ (Domestic Assault).  In a statement to his group commander (GP/CC) dated 3 Sep 19, the applicant stated the comment “there would be bloodshed” meant he would kill himself.  The concern for taking his own life was also discussed with family health.  At no time did he threaten his wife.  He stated his wife did not hear or understand him that night.  It was a marital argument that was emotional but did not include conduct unbecoming or threats to anyone, except to his own life.  

AF Form 3070C, Record of Nonjudicial Punishment Proceedings (Officer), dated 11 Oct 19 shows the applicant received an Article 15 for the following on 3 Jun 19:

a.	Wrongfully communicating a threat to his then wife by stating, “If anyone comes in, it is going to get bad” or words to that effect.  

b.	Wrongfully communicating a threat to his then wife by stating the night was going to end in bloodshed if she did not return to the residence.

c.	Wrongfully communicating words and actions intended to threaten or intimidate by retrieving a firearm from his residence and physically blocking his then wife’s vehicle with his body and pulling the firearm from his waistband and stating “is this what you are afraid of” or words to that effect.

d.	Engaging in conduct unbecoming of an officer and a gentleman while in uniform by yelling profanities while standing outside of his residence and preventing his then wife from leaving the residence by physically blocking her vehicle with his body, retrieving a firearm from his residence and brandishing it to her, to the disgrace of the armed forces.

The punishment included a reprimand and forfeiture of $3,120 pay per month for two months.  The applicant’s appeal was granted in part and the portion of the forfeiture in excess of $3,120 pay per month for one month was suspended until 3 Jun 20, after which time it would be remitted without further action, unless sooner vacated.  

On 20 Feb 20, the applicant was notified of his selection for promotion to major by the CY19E Major Line of the Air Force (LAF) Central Selection Board (CSB).

The applicant received a referral officer performance report (OPR) for the reporting period ending 8 Apr 20, for communicating threats to his then wife, retrieving a firearm and blocking his then wife’s vehicle with his body, pulling the firearm from his waistband and yelling profanities while standing outside his residence.  

AF Form 4363, Record of Promotion Propriety Action, dated 26 Jun 20, shows the applicant was notified on 19 Jun 20 he was removed from the promotion list as a result of his NJP and the ROI for domestic assault.  

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

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial for removal of the NJP.  The applicant’s commander issued an Article 15 based on the preponderance of evidence, in accordance with AFI 36-2907, Adverse Administrative Actions.  

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 10 Mar 22 for comment (Exhibit D), and the counsel replied on 21 Mar 22.  Counsel contends the advisory recommends denial but provides no analysis of the issues raised by the applicant.  The advisory opinion merely restates the standard of preponderance of the evidence, which is not a disputed definition.  No attention or response was given to address the myriad factual errors and inequities identified.  The advisory opinion is useless and not impactful.  The inability of the advisory opinion to provide any analysis demonstrates relief is warranted.  

The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

DAF/JA recommends denial for removal of the NJP.  There is insufficient evidence or allegation of error or injustice to undermine the imposed NJP.  The applicant’s commander did not abuse his discretion in administering the NJP, finding the applicant committed the offense as alleged or imposing punishment.  The punishment imposed was within the permissible range for the offenses.  The applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  After the advice provided by counsel, the applicant could have demanded court martial in lieu of NJP, which he opted against.  Further, the applicant appealed the NJP and his appeal was granted in part by suspending and remitting the forfeitures but did not change the findings of misconduct or the reprimand.   The appellate authority subsequently denied the appeal.  There is no basis to set aside the NJP.  

At the core of the applicant’s allegation is that the NJP authority made an erroneous factual determination.  He alleges inconsistencies by the witnesses and offers his account of the events in rebuttal.  DAF/JA finds the NJP authority, as fact finder, based his determination on a reasonable analysis of the evidence and defers to his discretion.  It is beyond the scope of DAF/JA to replace the fact-finder or conduct a de novo review of the facts.  If an NJP authority is clearly erroneous, an NJP action can and should be reviewed.  However, this does not apply in this application. In the present case, there is ample evidence the NJP authority could have reasonably relied on, including statements from three witnesses.  Furthermore, even the applicant’s own statement could have reasonably informed the NJP authority’s determination.  

What is disputed are the words exchanged between the applicant, his then wife and her two friends, and in what manner.  In his memorandum to his GP/CC dated 3 Sep 19, he stated he was never aggressive or threatening.  He characterized the exchanges as “normal” conversations.  Regarding the firearm, he stated he retrieved it for his safety because he was going to sleep in his car in a store parking lot.  He initially left through the garage in order to avoid seeing his then wife or her friends; however, returned to the home in order to apply the lessons from their marriage counseling and have a conversation with his wife.  He was surprised to see his her and children already in her car and was confused by their actions.  He was shocked and did not understand why his then wife expressed fear.  He offered to give her the handgun if it was frightening her and that she could put it in her car and lock it.  However, his then wife and the two witnesses described the incident differently.  They stated the applicant was belligerent, loudly threatening and loudly cursing.  The two witness friends described his then wife as nervous, in tears, shaking and fearful.  The applicant’s behavior and situation were described as volatile and threatening.  

The complete advisory 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 15 Apr 22 for comment (Exhibit G), and the counsel replied on 17 Apr 22.  The advisory states a point by point analysis was already performed by the NJP authority; however, this is false.  No point by point analysis of the claims raised by the applicant was ever made or attempted.  If it had been conducted, he would have been found not guilty at the NJP.  

The advisory opinion defers to the NJP authority.  The circular argument results in an injustice and both advisory opinions recommend denying relief under the belief that someone else has already looked into the matter.  The fact remains, no one has ever responded substantively to the specific claims raised by the applicant.  This is the very purpose of this Board.  If the facts and evidence are thoroughly considered, the only conclusion is that the NJP should have resulted in a not guilty finding as the allegations were unsupportable in fact and law.  The NJP must be removed from the applicant’s records and he be restored.  

The 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 Board concurs with the rationale and recommendations of AFPC/DP2SSM and DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Counsel contends the NJP was based on untrue allegations, an ROI that contained inconsistent witness statements and that the evidence did not support the applicant communicated a threat during the domestic situation on the night of 3 Jun 19.  However, the Board finds counsel has provided insufficient evidence to substantiate his assertions.  The applicant states his reasons for having a firearm in his possession and displaying the firearm were for his own protection since he planned to sleep in his car and that the only life he intended on taking was his own.  He states had no intent to harm his then wife, children or the witnesses.  While the applicant disputes the reasons for possessing and displaying the firearm, the Board finds sufficient evidence to conclude the applicant’s comments and actions communicated a threat.  Counsel also contends the NJP stating the applicant was in uniform was incorrect since he was not in uniform.  However, the Board finds the applicant’s statements and actions on the night of 3 Jun 19, whether he was in or not in uniform, constituted conduct unbecoming of an officer and violated Air Force standards.  The Board also notes the applicant was afforded his due process and appealed the NJP.  While the applicant’s appeal was granted in part for the forfeiture, the appellate authority did not change the findings for the basis of the NJP.  Counsel also contends the legal review of the investigation did not substantiate probable cause for most of the charges; however, the Board disagrees.  In this respect, the ROI shows the legal reviewer concluded there was probable cause for charge of Article 128, UCMJ (Domestic Simple Assault).  In view of the above, the Board finds insufficient evidence to warrant removal of the NJP or the promotion propriety action.  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-2021-00407 in Executive Session on 19 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 19 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 9 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 10 Mar 22.
Exhibit E:	Applicant’s Response, dated 21 Mar 22.
Exhibit F:  Advisory Opinion, DAF/JA, dated 14 Apr 22.
Exhibit G:  Notification of Advisory, SAF/MRBC to Applicant, dated 15 Apr 22.
Exhibit H:	Applicant’s Response, dated 17 Apr 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.