RECORD OF PROCEEDINGS

IN THE MATTER OF:                               DOCKET NUMBER: BC-2021-00458

XXXXXXXXXXXXXX                              COUNSEL:  XXXXXXXXXXXXXX 

                                                                       HEARING REQUESTED: NOT INDICATED  

APPLICANT’S REQUEST

1.   His Article 15, Uniform Code of Military Justice (UCMJ) dated 23 Oct 19, be removed from his records.

2.   He receive back pay from the date of the reduction in grade to present.

3.  He be eligible to reenlist.

4.  He be given orders to deploy for 120 days to Kuwait to finish his deployment.

5.  His line of duty (LOD) be approved.  

6.  In the alternative, if the Article 15 is not removed, the reduction in grade be mitigated as not a part of the punishment or the punishment be suspended and the untrue allegations be removed.  

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states most of the allegations in the Article 15 are untrue and were the result of unlawful command influence (UCI).  He did not receive due process during the Article 15 process.  The punishment of reduction in grade was also too severe for the allegations.

His past enlisted performance reports (EPRs) show he was an excellent supervisor and good communicator.  He has never been in any kind of trouble in regards to supervising troops prior to this deployment.  He also had two prior deployments, where he excelled and was named performer of the week during his temporary duty (TDY) assignment to Balad, Iraq. 

On 23 Jul 19, he deployed to Ali Al Salem AB, Kuwait and was assigned as the noncommissioned officer in charge (NCOIC) of his duty section.  He worked the day shift and had over 40 subordinates under him.  He began to notice standards were lax and the unit was not running up to par.  He wrote a memorandum to his subordinates he would no longer tolerate mistakes and would be holding individuals accountable for their actions.  This did not go over well with some of the personnel and three female airmen colluded to file a complaint against him.  They complained to a supervisor and submitted a complaint to the equal opportunity (EO) office.  The allegations resulted in an investigation in which the complainants gave conflicting statements.

In response to the investigation, he received an Article 15.  He did not commit several of the allegations and some of the actions were taken out of context and overblown.  He admits he attributed references to the “Bang” energy drinks and eating bananas.  The punishment for the offenses is too harsh, neither are serious or sexual in nature.  The collateral consequences have been devastating for him and his family.  The reduction in grade resulted in reduced pay and will result in loss of retired pay, culminating in hundreds of thousands of dollars lost pay over his life.  He was also returned early from deployment, not allowed to reenlist and received a referral EPR.  This is far too dire for having said he would give “Bang” energy drinks to people on their birthday.  

The investigating officer (IO), whose report the commander relied on to frame the Article 15, did not consider the friendships, biases, inconsistent statements and his statements in reaching the findings, nor was a thorough investigation conducted.  The IO failed to consider the applicant let his subordinates know he would be holding them accountable.  An obvious witness who was not interviewed stated there was a feeling of “girl power” in the unit.  It is also clear from the reports and witnesses, the complaining witnesses had a severe bias against him.

His statements did not rise to the level of a violation in DoDI 1020.03, Harassment Prevention and Response in the Armed Forces. The IO and the commander used the wrong standard.  They applied a subjective test to what should have been seen through an objective analysis.  A close reading of the inconsistent complaining witness statements show they were subjectively offended.

He did not engage in any conduct that would fall within the definition.  As corroborated by witness statements, he did not create a hostile environment and none of his comments or behaviors were intentionally sexual in nature.  The complainants were looking for sexual intent where none existed.  

Article 93, UCMJ, requires proof that a certain person was subject to the orders of the accused and that the accused was cruel toward, or oppressed or maltreated that person.  Just because the complainants talked each other into stating their feelings were hurt does not mean there was maltreatment.  

This case is permeated with UCI.  The commander was biased and members were not allowed to help the applicant prepare for a defense of his AFBCMR application.  As the witnesses interviewed can attest, he was given an attorney who was too busy to help him and was ordered not to contact witnesses in order to develop a defense.  The paralegal in the case also refused to assist the applicant as his chain of command told him not to help him.  AFI 51-202, Nonjudicial Punishment, paragraph 3.5 states after a commander serves the AF Form 3070, Record of Nonjudicial Punishment Proceedings (AB thru TSgt) on a member, the member and his counsel have a right to examine all statements and other evidence.  Members are normally provided a copy of the documentary evidence.  In this case, the commander did not consider exculpatory evidence or hid the evidence from him that would have helped his defense.  To be clear, he was not given all evidence available to his commander.  Once he received the response to his Freedom of Information Act (FOIA) inquiry, he learned there were witness statements he was never given. The applicant was denied his due process pursuant to the 5th Amendment to the United States Constitution.  The no contact order precluded the applicant from accessing indispensable witnesses to clear his name.  

He gave over 20 years of his adult life to the Air Force and service to his country.  His records show he deployed several times and served as a great supervisor.  His records show he was a solid performer, excellent supervisor and communicator.  It would have been out of character for him to have stepped out of bounds while deployed this last time.  This case is so unjust that counsel asks the Board to right a specific injustice.  He appealed his NJP, filed an inspector general (IG) complaint and applied for Article 138, UCMJ redress.  There is no other forum, except the AFBCMR, for him to obtain relief.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

AF Form 3070A, dated 25 May 10, shows the applicant received an Article 15 for dereliction in the performance of his duties while TDY to Al Udeid AB, Qatar by willfully failing to obey the Equal Opportunity and Treatment Policy Letter, dated 6 Jul 10, in violation of the UCMJ, Article 107.  The applicant on or about 22 Apr 10, with intent to deceive made a false statement, which was known to be false.  The applicant was involved in a multitude of questionable activities during his deployment, to include filing a false report to security forces as a retaliatory measure taken against another member of the unit who reported the applicant for missing items.  The applicant also lodged a military equal opportunity (MEO) complaint implicating members of his leadership resulting in a commander directed investigation (CDI) that concluded the applicant was the person who contributed to the hostile work environment.  The applicant repeatedly failed to take responsibility for his own conduct.  The applicant was reduced to the grade of staff sergeant (E-5), with new date of rank of 29 May 10.  

The applicant provides an e-mail dated 9 Sep 19, he sent to supervisors while deployed to Ali Al Salem AB.   He stated members who caused a plane to be delayed, forgot to load cargo or load the wrong cargo would be issued a letter of reprimand (LOR).  The applicant stated they were the last quality control check and were responsible for ensuring all manifested cargo was off-loaded as required.

The applicant provides a redacted CDI Report of Investigation (ROI) dated 29 Sep 19, concerning sexual and verbal harassment and maltreatment.  Specifically, between 1 Aug 19 and 23 Sep 19, the applicant made sexual comments, inappropriate comments toward the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, comments on political affiliation and inappropriate touch of airmen under his direct supervision.  The applicant created a hostile work environment for those under his supervision.  The ROI included the following allegations against the applicant:

	Allegation 1.  The applicant wrongfully engaged in sexual or other unlawful harassment in violation of DoDI 1020.03, Harassment Prevention and Response in the Armed Forces, para 3.1 or 3.3. (SUBSTANTIATED).

	Allegation 2. The applicant on diverse occasions maltreated persons subject to his orders, by subjecting one or all of them to discriminatory comments in violation of Article 93, UCMJ. (SUBSTANTIATED)

The applicant received a referral EPR for the reporting period 1 Jan 18 to 30 Sep 19.  The EPR stated the applicant was returned early from deployment, received NJP and an unfavorable information file (UIF) was issued.  

AF Form 3070B, Record of Nonjudicial Punishment Proceedings (TSgt thru CMSgt) dated 14 Oct 19, states he was derelict in the performance of his duties in that he willfully failed to refrain from engaging in sexually harassing conduct towards named individuals, which created an intimidating, hostile or offensive environment.  He made deliberate and repeated unwelcomed comments of a sexual nature, in violation of Article 93, UCMJ.  He maltreated named individuals, subject to his orders, by subjecting them to deliberate and repeated offensive comments and gestures sexual in nature. He also maltreated the named individuals, subject to his orders, by subjecting them to unwelcomed offensive comments that created an intimidating, hostile and offensive environment by making comments regarding political affiliation and the LGBTQ community.    The applicant was reduced to the grade of technical sergeant, with new date of rank (DOR) of 24 Oct 19.  On 29 Oct 19, the review authority determined the NJP action was to be filed in his SNCO Selection Record.  

On 23 Dec 19, the applicant’s commander responded to the applicant’s request for Article 138 redress, stating no relief was warranted and the request was outside of the scope of the Article 138, UCMJ.  The following complaints were addressed:

a.	On 23 Sep 19, he was wronged when removed from his position as the NCOIC.  His commander stated he produced no evidence for the assertion.  His removal was because the flight leadership lost confidence in his ability to effectively accomplish the mission and safeguard the airmen under his supervision.  The decision was actually made by the flight officer in charge in consultation with the flight superintendent.  He was aware of the decision to remove him and agreed it was appropriate.  

b.	The applicant alleged his commander abused his discretion by issuing a no contact order limiting his interaction with his duty section.  His commander stated the applicant made a threat or attempted threat to influence six individuals who made complaints against him.  A no contact order was issued from 30 Sep 19 to 30 Oct 19 since there were multiple reports he had harassed members of his duty section and a CDI was pending.  Given the severity and pervasiveness of the reports of his conduct and the need to maintain good order and discipline within the unit, his commander determined a no contact order was appropriate.  No one directed the applicant to stay in his room and the order did not leave the applicant devoid of lawful avenues for social interaction.    The fact the applicant chose more restrictive behavior than what as prescribed did not make the order unlawful.  

c.	The applicant’s complaint alleged various contentions concerning his Article 15.  His commander responded that Article 15 matters are expressly not eligible for Article 138 review.  However, the evidence examined was made available to the applicant during the NJP process as required.  The applicant was granted extensions to respond and on 23 Oct 19, accepted the NJP.  His commander stated his written presentation was considered before finding him guilty on 24 Oct 19.  The applicant appealed on 29 Oct 19 and the appeal was denied by the group commander.  The applicant was represented by counsel and received ample due process.  Since the request for relief was outside the scope of Article 138, UCMJ, the complaint was dismissed and the applicant was advised he could pursue supplemental action through the AFBCMR.

d.	The applicant contended he was wronged by being sent home early from deployment.  Given the nature of his conduct and the distraction his behavior created in the unit, the commander determined his continued presence was incompatible with good order and discipline.  His commander also did not have the authority to deploy him back to Ali Al Salem AB but that he was not welcomed to return to the unit.  The requested relief was denied.  

The applicant was advised he could submit an appeal of the decision to the officer exercising general court-martial convening authority.  His commander attached a letter of counseling (LOC) dated 21 Sep 19 and a memorandum for record (MFR) dated 15 Dec 19.  The LOC from the superintendent was for lack of sound judgment in providing care for those he led.  The MFR documented his inability to accept responsibility for his section.  

On 11 Jan 20, the group commander (GP/CC) denied the applicant’s 26 Nov 19 request to set aside his NJP dated 24 Oct 19.  

In a memorandum dated 14 Jan 20, the applicant’s wing commander (WG/CC) responded to the applicant’s Congressional Inquiry stating a careful review found no fault with the command’s administration of military justice.  The applicant’s commander initiated a CDI on 25 Sep 19 based on several complaints within the work center that appeared to amount to sexual or unlawful harassment in violation of Department of Defense (DoD) policy.  An IO was appointed to investigate the allegations and after gathering and analyzing evidence, he concluded the applicant engaged in sexual or other unlawful harassment in violation of DoD policy and maltreatment of subordinates.  On 14 Oct 19, his commander notified the applicant of the decisions concerning the findings of the CDI and his right to review the CDI proceedings.  The applicant was also informed of his right to petition the AFBCMR.  On 14 Oct 19, the applicant’s commander offered NJP and provided him and his defense counsel 22 pages of evidence in the NJP proceedings.  The NJP was reviewed by the staff judge advocate at the wing and Air Forces Central Command.  It was determined the evidence sufficient to sustain his commander’s finding of guilt and no irregularity prejudiced the applicant’s rights.  The punishment the applicant received was within the authority of the commander and the decision was based on substantial evidence and a fair process that complied with applicable Air Force policy.  The applicant also alleged several witness were intimidated. However, they found no evidence of witness intimidation.  The applicant asserts his commanders should not have issued him a no contact order.  The order was lawful and supported by military necessity.  

Counsel provides an e-mail from the Air Force paralegal dated 27 Oct 20, stating his leadership stated he should not provide a memorandum about the notes provided.  There was no evidence of forgery or that evidence was tampered with.  

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

APPLICABLE AUTHORITY/GUIDANCE

DoDI 1020.03, Harassment Prevention and Response in the Armed Forces, paragraph 3.1. Harassment. Harassment may include offensive jokes, epithets, ridicule or mockery, insults or put-downs, displays of offensive objects or imagery, stereotyping, intimidating acts, veiled threats of violence, threatening or provoking remarks, racial or other slurs, derogatory remarks about a person’s accent, or displays of racially offensive symbols. Types of harassment include, but are not limited to, discriminatory harassment, sexual harassment, hazing, bullying, and stalking. Stalking must be reported to the appropriate Military Criminal Investigative Organization.

DAFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON) and Incapacitation (INCAP) Pay, paragraph 1.1., Members must provide timely medical documentation that the illness, injury, disease or death occurred while in that duty status.  Table 1.1., and paragraph 1.11, the standard of evidentiary proof used in NILOD, not due member’s own misconduct is based on clear and unmistakable evidence.  

DAFI 36-2910, paragraph 5.1, A formal LOD determination is required to support a determination of NILOD due to a member’s misconduct.  

AIR FORCE EVALUATION

AFRC/JAM recommends denial.  On 25 Sep 19, his commander initiated a CDI against the applicant based on allegations of sexual and verbal harassment and maltreatment.  A duly appointed IO conducted the CDI in accordance with SAF/IGQ Commander Directed Investigation Guide.  The IO found the allegations were substantiated by a preponderance of the evidence, the unit commander concurred with the findings and conclusion and the wing SJA found it legally sufficient.    

The applicant was afforded due process well within the guidance set forth in the Manual for Courts-Martial Part V and AFI 51-202.  The applicant was offered and accepted the NJP.  He was afforded the opportunity to submit matters on his own behalf, and he did so.  He was also afforded the opportunity to appeal the punishment and he did so.  The appeal was given due consideration and denied.  The applicant’s allegation of a lack of due process is baseless.  A review of the AF Form 3070B shows no undue delays, errors or other issues of note.  

The maximum punishment, his commander, as a lieutenant colonel (O-5) could impose includes a reduction of one grade per AFI 51-202, Table 3.1.  The reduction to the grade of technical sergeant is an authorized punishment commensurate with the offenses and applicant’s grade at the time the offenses were committed.  Commanders are required to act to stop sexual harassment no matter how minor the conduct may be.  Commanders who find military personnel to have engaged in sexual harassment have a multitude of disciplinary options at their disposal and are expected to take action to prevent further offensive conduct. The option to set aside punishment under NJP action should be utilized only in rare and unusual cases where a question concerning the guilt of the member arises or where the best interest of the Air Force are served by clearing the member’s record per AFI 51-202, paragraph 5.7.1.  The applicant’s case does not meet this stringent criteria.  

The applicant also contends the allegations in the Article 15 are “provably untrue.”  There is no specific standard of proof that applies to NJP, to include appeals.  Members offered NJP are entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt of each element must be shown.  The applicant’s commander appears to have given full and fair consideration of the evidence and AFRC/JAM finds the applicant’s allegations that the charges against him are untrue without merit.

The applicant also alleges UCI with the Article 15 process.  There is no evidence the applicant’s rights to fair processing under the NJP were adversely impacted and there is no evidence of UCI.  The alleged UCI appears to be rooted in a no-contact order issued by his commander.  The order was limited in nature and only applied to the applicant and his interactions with the duty section.  The order was limited in scope and expired after one month.  The order did not apply to his area defense counsel and therefore it did not prevent them from preparing a response to the NJP action or from preparing a defense.  The UCI claim is without merit.

The applicant offers no information to address the denial of the LOD due to the NJP.  Therefore, the allegation is unable to be addressed.  

The complete advisory opinion is at Exhibit C.

DAF/JA recommends denial.  The record contains insufficient evidence or allegation of error or injustice tending to undermine his NJP action or imposed punishment.  The applicant has not submitted any new evidence or information that suggests error or casts doubt on the legal sufficiency of the NJP.  The record shows a properly conducted investigation and ample evidence of misconduct.  Furthermore, there is no evidence of UCI as alleged and no evidence he was denied due process.  The applicant was offered NJP and notified of his rights, he consulted with counsel and opted against his right to demand court-martial in lieu of NJP.  Hence, there was no error.  As for the applicant’s allegation of injustice, the commander did not abuse 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 offense and was not unjust.  

The complete advisory is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 18 Nov 21 for comment (Exhibit E).  On 16 Dec 21, counsel submitted a response contending the AF/JAJI and AFRC/JAJM advisory opinions were merely legal opinions that did not address the applicant’s contentions. 

The AF/JAJI advisory states he provided no new evidence pertaining to the NJP.  However, his application shows he was given a no-contact order that prohibited him from doing any meaningful investigation and his ADC was not present and too busy to help.  There is new evidence casting doubt on the legal sufficiency of the NJP and interview statements.  The provided statements were never considered during the NJP process.  It was not until the no-contact order expired, long after the NJP process, he was able to contact them to have their voices heard.  The complaining witnesses were friends and did not like the applicant’s leadership style.  This gave them reason to collude and a motive to fabricate the allegation.  The AF/JAJI advisory also states that the punishment was in the “possible range;” however, that does not make it just.  He was a solid performer who did not commit most of the alleged misconduct.  The NJP was also given in a deployed environment.  The chain of command imposing punishment did not know the applicant well enough to discern his character and come to a reasonable conclusion.  The demotion was too harsh for what he actually did.  

The AFRC/JAJM advisory shows his commandeer used the incorrect standard of proof when deciding he committed the alleged offense.  While no specific standard of proof applies to NJP proceedings, commanders should recognize that a member is entitled to demand trial by court martial, in which case proof beyond a reasonable doubt is a prerequisite to conviction.  The commander appears to have concurred with the findings that were based on a preponderance of the evidence, using the wrong standard.  All of the servicing legal officers and higher authority signed off on it because they did not question the one-sided investigation.

The Board should rule in the applicant’s favor.  He did not do what was alleged.  The FOIA response he received for the CDI report showed there were 8 witnesses but only 6 were provided in the NJP action.  These statements should have been provided but were not.  The commander was required to be impartial per AFI 51-102.  His commander denied him the ability to investigate by issuing the no-contact order, withheld evidence that supported his case and put him on a shift opposite that of his ADC.

The AFRC/JAJM advisory states there was no evidence of a LOD.  Counsel provides AF Form 348, Line of Duty Determination, dated 20 Dec 19, which shows the applicant was diagnosed with adjustment disorder with depressed mood.  The applicant experienced stress, anxiety, insomnia and depressive symptoms due to recent NJP action while deployed.  On 25 Feb 20, the approving authority determined the applicant’s condition was NILOD-Not Due to Own Misconduct.  The LOD finding should be ILOD.  

The applicant’s complete submission, with attachments, is at Exhibit F. 

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 AFRC/JAM and DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The counsel contends the applicant did not commit most of the allegations for which he received the NJP and unfavorable personnel actions and that the IO was biased, his commanders engaged in UCI, his due process rights were violated and his actions did not rise to the level of a violation to show he engaged in sexually harassing conduct or created an intimidating, hostile or offensive environment.  In the response to the advisory opinions, counsel asserts the complainants did not like the applicant’s leadership style and had motive to collude against the applicant.   The Board finds counsel’s opinions and assertions insufficient to substantiate the applicant did not commit sexual harassment or create a hostile environment.  The Board takes exception to counsel’s statements he did not commit most of the allegations and that his comments were taken out of context in an attempt to excuse the applicant’s misconduct.  Based on the evidence and the investigation, the Board finds the applicant’s conduct and comments violated Air Force policy on sexual harassment.  Further, he failed to uphold the standards expected of Air Force noncommissioned officers and as the NCOIC of his duty section.  The Board finds the investigation was conducted in accordance with regulations and the actions of his commanders, to include the no contact order, issuance of the NJP, early return from deployment and referral EPR were within the commander’s authority and discretion.  The Board finds no evidence the applicant was denied any due process rights or there was any bias against him or that the punishment was unduly harsh or disproportionate.  Counsel contends the applicant was never in any trouble, excelled during past deployments and that it would have been out of character for him to step out of bounds.  However, the Board notes the applicant also received an Article 15 in May 2010 while deployed to Qatar for violating equal opportunity and treatment policy and contributing to an intimidating hostile work environment.  

The counsel provides AF Form 348, Line of Duty Determination, dated 25 Feb 20 in support of the request his LOD be found ILOD.  The Board acknowledges the applicant’s unit commander, wing staff judge advocate and appointing authority recommended the applicant’s stress, anxiety, insomnia and depressive symptoms since late Sep 19 due to recent UCMJ action while  deployed be found ILOD.  However, the AF Form 348 shows the ARC LOD Determination Board Review and Approving Authority did not agree and a new finding for formal investigation and NILOD, not due to own misconduct was recommended.  The Board finds the AF Form 348 was accomplished in accordance with DAFI 36-2910 and properly adjudicated.  Accordingly, the Board finds counsel has not sustained his burden of proof to warrant the desired change to the record.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The 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-2021-00458 in Executive Session on 15 Dec 21and 8 Mar 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 25 Feb 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFRC/JAM, dated 19 Apr 21.
Exhibit D: Advisory Opinion, DAF/JA, dated 23 Apr 21
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 18 Nov 21.
Exhibit F:  Counsel’s response, with attachments, dated 16 Dec 21.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.