RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01591

XXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  YES
 
APPLICANT’S REQUEST

1.  The nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), imposed on 22 May 19, along with all references to it and adverse consequences of it, be removed from his records.

2.  Alternatively, the Article 15 punishment be reduced by setting aside his reduction in rank from chief master sergeant (E-9) to senior master sergeant (E-8).

3.  Amend his DD Form 214, Certificate of Release or Discharge from Active Duty, to reflect his retirement as an E-9.

4.  Award back pay for the period Jun 19 through Feb 20, when he served as an E-8 instead of an E-9.

APPLICANT’S CONTENTIONS

The Article 15 he received, and particularly the punishment of reduction in rank, was erroneous and unjust considering what he actually did and did not do.  The punishment is disproportionate to the true facts of what occurred, and is an improperly negative response to his previous unsuccessful suicide attempt eight months prior.  In 2019, he was the subject of a Commander Directed Investigation (CDI) regarding a romantic relationship he engaged in with a subordinate noncommissioned officer (NCO) when they were both separated from their respective spouses, but still legally married.  On 22 May 19, he was served with an Article 15 alleging he violated a no-contact order with the NCO, engaged in an unprofessional relationship with the NCO, and committed adultery with the NCO.  He accepted the Article 15, and submitted a response admitting to the relationship and accepted full responsibility for it.  He denied that he showed the NCO any professional favoritism or that he violated the no-contact order.

The Air Force makes public statements about how mental health struggles should not be a source of stigma or adverse consequences.  However, the reality is there is a stigma and adverse consequences associated with mental health issues in the Air Force that cause members to avoid getting timely, appropriate treatment.  In his case, the issues in his personal life caused him to become an alcoholic, ultimately, led to his attempted suicide and his attendance in alcohol rehabilitation.  He honestly believes the NCO saved his life.  Despite her support and understanding, he felt the Air Force treated him as a failure and “damaged goods” due to the struggles he was going through.

In his Article 15 response, he addressed some of the CDI conclusions he disagreed with and provided substantive and character evidence in support.  Despite his response, he was found guilty of the allegations and punished with a reduction in rank and a reprimand.  He appealed his Article 15 punishment as disproportionate, and stated it was harsher than necessary to accomplish the goal of rehabilitation.  In his appeal, he again stated he did not violate the no-contact order, and provided corroborating evidence.  The appeal was denied on 7 Jul 19.

Additionally, he requested a set-aside of his punishment on 16 Jan 20.  In the request he provided newly obtained evidence, to include a sworn affidavit from the NCO indicating he did not violate the no-contact order.  His set-aside request was denied on 24 Jan 20.

Finally, he does not understand how the Article 15 issuing commander, who was a lieutenant general (O-9), was able to deny his appeal at the initial level, and the appellate authority, who was the next decision level, was a major general (O-8).  If the appellate authority should a higher rank than the issuing commander, his Article 15 was not processed correctly.

In conclusion, it was a dark time in which his personal life was falling apart and he was dependent upon alcohol.  He nearly lost his life.  He admitted to adultery, but he did not show professional favoritism, or violate the no-contact order.  He provided evidence that corroborates this, but the command ignored it because they already made up their minds.  He was damaged goods once his mental health struggles were known.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force senior master sergeant (E-8).

According to the documentation provided by the applicant and analysis of the facts the following information is provided:  

On 8 Feb 19, a CDI report was completed substantiating three of four allegations of misconduct by the applicant:  (1) the applicant willfully failed to refrain from engaging in a sexual relationship with a subordinate NCO; (2) the applicant wrongfully had sexual intercourse with a woman not his wife; and (3) the applicant wrongfully had sexual intercourse with a woman not his wife (similar in nature to Allegation 2 – determines whether both parties were married to other people).  The fourth allegation, whether the applicant wrongfully endeavored to impede or influence the investigation, was not substantiated.

On 22 May 19, the applicant was issued NJP, under Article 15, UCMJ, for: 

Having knowledge of a lawful order not to have contact with [NCO], an order which it was his duty to obey, did at or near [Base], between on or about 5 Feb 19 and 21 Feb 19, fail to obey the same by wrongfully driving from [Base] and communicating, in person, with [NCO], without prior approval, in violation of Article 92, UCMJ.

Knowing his duties, at or near [Base] and [Base], between on or about 1 Nov 17 and 1 Nov 18, was derelict in the performance of these duties in that he willfully failed to refrain from engaging in an unprofessional relationship with his direct subordinate, as it was his duty to do, to wit: on divers occasions he became publicly drunk with and engaged in a sexual relationship with [NCO], permitted [NCO] to address him unprofessionally in front of others and advocated for multiple favorable administrative actions on behalf of [NCO], which compromised the integrity of his supervisory authority, caused a perception of favoritism and negatively impacted the good order and discipline of the unit, in violation of Article 92, UCMJ.

As a married man, did, at or near [Base], on divers occasions, between 1 Nov 17 and 31 Mar 18, wrongfully had sexual intercourse with [NCO], a married woman not his wife, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, in violation of Article 134, UCMJ.

The applicant was issued a reprimand and reduced in grade from E-9 to E-8, with a new date of rank of 13 Jun 19.

On 29 May 19, he waived his right to court-martial, accepted NJP proceedings, and submitted a written presentation.

On 18 Jun 19, the NJP authority found he committed the offenses and imposed punishment, to include reduction in rank and a reprimand.  The applicant submitted an appeal of the Article 15 punishment reducing him in rank to senior master sergeant.

On 27 Jun 19, the NJP authority denied the applicant’s NJP appeal.

On 16 Jul 19, the appellate authority denied the applicant’s NJP appeal.

On 16 Jan 20, the applicant requested the NJP authority set-aside his reduction in rank.

On 24 Jan 20, the NJP authority denied the applicant’s request to set-aside the reduction in rank.

On 29 Feb 20, the applicant received an honorable discharge, in the grade of E-8, with Narrative Reason:  Sufficient Service for Retirement.  He was credited with 21 years, 8 months, 7 days active service.

On 30 Mar 20, the Secretary of the Air Force determined the applicant did not serve satisfactorily in any higher grade, and would not be advanced under the provision of Section 8964, Title 10, United States Code.

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

AIR FORCE EVALUATION

The AFRBA Psychological Advisor has completed an exhaustive review of all available records and finds insufficient evidence to support the applicant’s requests.  The Psychological Advisor finds it convincing the applicant had developed a friendship and eventually an intimate relationship with the NCO due to a mutual understanding of their personal struggles.  During times of emotional distress and vulnerability, one may gravitate towards another individual who could evoke empathy and compassion to the individual’s plight and a bond may develop leading to an incremental shift in their relationship.  There was evidence the applicant had received various levels of mental health care consisting of inpatient hospitalization, residential, Partial Hospitalization Program (PHP), Intensive Outpatient Program (IOP), and regular outpatient treatment for alcohol dependency and mood concerns that had predated his inappropriate relationship, possibly contributing to him yearning to connect with another individual.  

Although it is comprehensible the applicant’s situation caused his lapse in judgment due to his mental anguish and emotional distress, his behaviors of engaging in an inappropriate relationship with his subordinate could not be accepted or excused.  The applicant was in a senior leadership position and had attained the highest rank possible for an enlisted member, and had served in the Air Force for almost 20 years when the relationship had occurred.  He knew the rules and regulations pertaining to these types of relationships but decided to ignore them. The relationship was reported to have spanned over a year or more signifying his interaction with the NCO was not an impulsive act or a one-time or periodic occurrence.

The CDI report indicated there was an element of premediated behaviors concerted by both parties to conceal and continue with their relationship despite the consequences to their military careers.  There was no indication the applicant or the NCO had come to the realization their relationship was inappropriate or had attempted to terminate their relationship.   His judgment may have been affected by his emotions, but there was no evidence he had any cognitive or intellectual impairment or a thought disorder that caused his poor decision making skills.  Furthermore, the applicant’s service treatment records reported through time, he had benefitted from treatment and his anxiety and depression had improved.  Thus, his mental health condition does not appear to be the sole or primary cause of his continuous engagement in the long-term relationship.

There is no evidence the applicant’s leadership treated him unfairly or was unsupportive to him after his mental health concerns were revealed.  On 2 Jul 18, he received a command referred evaluation from the Alcohol and Drug Abuse Prevention and Treatment program for attempting suicide by overdose while under the influence of alcohol. The evaluation report revealed the applicant had voiced suicidal intent to his wife to “make” her return home, frequented a bar near his home, and would consume about six beers daily. In fact, due to the frequency and severity of his alcohol use, he was referred to a residential treatment facility for almost two months to address his alcohol dependency issues and mental health concerns.   In order to attend treatment at this facility, approval from his commander was required.  The applicant received approval indicating his leadership was supportive of him receiving the necessary treatment for his mental health needs and concerns.  In terms of his alleged poor treatment at his unit, there was no evidence he was treated unfairly or unjustly.

The Board is not required to apply liberal consideration to the applicant’s petition because his behaviors of engaging in an inappropriate relationship were found to have elements of premediated behaviors causing his disciplinary action. However, should the Board elect to apply liberal consideration to his request, the following are responses based on the available information presented to the four questions in the policy:

1.  Did the veteran have a condition or experience that may excuse or mitigate the discharge?  The applicant contends his personal and marital stressors caused him to have alcohol dependency issues leading to his suicide attempt and participation in alcohol rehabilitation.  He alleges being treated unfairly and unjustly after his mental health struggles were revealed.

2.  Did the condition exist or experience occur during military service?  There is evidence the applicant was hospitalized for attempting suicide by overdose while intoxicated caused by his marital and personal problems during service.  He also received residential, PHP, IOP, and regular outpatient treatment for his alcohol and mental health (anxiety and depression) issues.

3.  Does the condition or experience excuse or mitigate the discharge?  The applicant’s mental health condition may have initially caused him to seek out and engage in a relationship with the NCO for emotional support; however, through time their relationship escalated resulting in a prolonged relationship consisting of premediated behaviors and concerted efforts to conceal and continue their prohibited relationship.  There was no evidence his mental health condition caused the resultant latter long-term relationship causing his CDI and disciplinary action (Article 15) involving a reduction in rank.  Therefore, his mental health condition does not excuse or mitigate his disciplinary action and discharge with rank of senior master sergeant.

4.  Does the condition or experience outweighs the discharge?  Since there is no evidence his mental health condition may excuse or mitigate his disciplinary action, his mental health condition also does not outweigh his disciplinary action resulting with the reduction of his rank to senior master sergeant from chief master sergeant at the time of his discharge.

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 3 Nov 21 for comment (Exhibit D).

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request to retire in the grade of E-9 vice E-8.  The applicant was demoted to the grade of E-8 on 13 Jun 19, prior to his retirement effective 1 Mar 20.   According to Title 10 United States Code, Section 9341(b) (10 U.S.C §9341(b)), an enlisted service member will be retired in the grade they held on the date of retirement unless authorized to be retired in a higher grade.  Enlisted airmen who were demoted prior to retirement and did not regain the highest grade held on active duty may be advanced on the retired list as determined by the Secretary of the Air Force or designee per 10 U.S.C §9344. When an airman requests retirement, the Air Force Personnel Center Retirements/Separations Branch (AFPC/DP2SSR), prepares a Satisfactory Service Determination package and sends it to the Secretary of the Air Force or designee, who determines the highest grade held on active duty in which the airman served satisfactorily.  If approved for advancement, when the airman’s active service plus their service on the retired list totals 30 years, they are advanced on the retired list as determined by the Secretary of the Air Force or designee and their retired pay is adjusted to the rate for the higher grade.  The Secretary of the Air Force Personnel Council decision, dated 30 Mar 20, stated the applicant did not serve satisfactorily in the higher grade and would not be advanced to the grade of E-9.

The complete advisory opinion is at Exhibit E.

DAF/JA recommends denying the applicant’s request to set-aside his NJP and reduction in rank from chief master sergeant to senior master sergeant.  The applicant consulted with an attorney, accepted NJP proceedings, waived his right to a court-martial, and submitted a written presentation for his commander’s consideration. The NJP authority found the applicant guilty, and sentenced him to a reduction in rank and a reprimand. The applicant appealed the NJP, but his commander and the appellate authority denied the appeal.

The applicant raised many allegations and contentions: (1) the punishment was disproportionate to the misconduct because he and the NCO were separated from their spouses at the time of their sexual relationship, and because he did not show her any professional favoritism; (2) he is facing “adverse consequences” due to his mental health issues; and (3) the NJP  appellate authority was an O-8 despite the NJP authority being an O-9, hence it was legally erroneous for a lower ranking officer to review the NJP action of a higher ranking officer.

Analyzing the first contention, the imposed reduction in rank was within the permissible range for the applicant’s offense, and not disproportionate.  Whether he was separated from his spouse at the time is not dispositive, and the NJP Authority had the discretion to give either weight or veracity to that matter in the manner he chose.

Analyzing the second contention, the extent of the applicant’s mental health issue is outside the scope of this legal advisory.   However, the applicant’s conduct, to include repeated temporary duty trips to [Base] during which his subordinate witnesses stated he did not perform his expected official duties, was premeditated and calculated to reap a personal benefit at taxpayer expense and at the expense of command good order and discipline.  As such, the stated mental health issues do not legally excuse or mitigate the misconduct.

Analyzing the third contention, this is not an irregularity.  The appellate authority in the present case was the Major Command (MAJCOM) deputy commander who acted with delegated authority from the MAJCOM commander.  Hence, this O-8 possessed the appropriate legal authority to review the applicant’s appeal of the O-3’s NJP action despite being a lower grade.

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 8 Nov 21 for comment (Exhibit G), and the applicant replied on 29 Nov 21.  In his response, he disagreed with the advisory opinions and reiterated his position that a loss of grade from E-9 to E-8 was disproportionately severe in light of the circumstances.  Those circumstances include:  (1) he did not show professional favoritism to the NCO; (2) he did not violate the no-contact order; and (3) the mental health issues he was suffering from were valid and powerful extenuation and mitigation.

While he disagrees with all of the advisory opinions, he is focusing his rebuttal on the opinion provided by the Psychological Advisor.  This opinion sounded more like is was from an officer seeking to support the command instead of a clinician objectively assessing a scenario of prolonged psychological stress.  In his original submission, he raised his psychological issues in extenuation and mitigation; he was not raising a mental health competency or capacity defense.  The Psychological Advisor admits that, “…the applicant’s mental health condition may have initially caused him to seek out and engage in a relationship with [NCO] for emotion [sic] support…”  The opinion goes on to describe how mental health vulnerabilities can lead to seeking out support from another.  What the advisory ignores is the mental health issue that both were dealing with, and which bound them together, were prolonged, and not some fleeting challenges that were immediately overcome.  Ignoring the true nature of the mental health issues is what the command did, and what this advisory author is now doing.  The facts remain the same – he had serious behavioral health and substance use issues that resulted in both inpatient and outpatient treatment, including hospitalization for an attempted suicide.

Furthermore, the Psychological Advisor asserts that, “he knew the difference between right and wrong” because he denied breaking the no-contact order and showing professional favoritism.  That opinion is not relevant, nor does it rebut his argument.  The mental health issues he was dealing with were exacerbated by the fact that both his mother and grandmother were dying, his divorce was moving through the courts, his son’s genetic syndrome and his intellectual disabilities still had many unanswered questions, and the alienation from his command all impacted his well-being.  This was not a momentary mental health crisis that quickly abated as the advisory author attempts to suggest.  Moreover, the advisory emphasized the word “make” when stating he voiced suicidal intent to make his wife return home, but failed to use the full quote from the evaluation report in an effort to mislead the Board.  The advisory falsely implied he used his very real suicide attempt as a manipulative tool against his wife.  His suicide attempt was a legitimate attempt to end his life, not some false manipulative tool.  The quoted word “make” was taken out of context from the original source, and is inflammatory and purposely misleading.

Finally, he is not attempting to suggest his actions were without fault.  He was wrong to engage in that behavior, despite his desperate mental state.  If he had received a fair and appropriate disciplinary action, and not one so disproportionately severe, he would not be filing this appeal.  His command ignored every rebuttal he submitted and his two decades of decorated service was outweighed by their desire to push him out the door because he was broken.  Based on the mitigating circumstances, he requests the Board apply liberal consideration to the relief he originally requested.

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 Board concurs with the rationale and recommendations AFPC/DP2SSR and DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  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, or that the action was arbitrary or capricious.  Further, while the Psychological Advisor opines the Board was not required to apply liberal consideration because the applicant’s premeditated behaviors caused his disciplinary actions, the Board did apply liberal consideration and is satisfied that the application of liberal consideration does not warrant relief. In view of the forgoing and given there is no basis to set aside the NJP action, the applicant’s requests to restore his rank to chief master sergeant, amend his DD Form 214, or award back pay, are not favorably considered.   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-2021-01591 in Executive Session on 2 Dec 21:

, 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 12 Feb 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFRBA Psychological Advisor, dated 1 Nov 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 3 Nov 21.
Exhibit E:	Advisory Opinion, AFPC/DP2SSR, dated 18 Oct 21.
Exhibit F:	Advisory Opinion, DAF/JA, dated 27 Oct 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 8 Nov 21.
Exhibit H:	Applicant’s Response, dated 29 Nov 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.