RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01945

XXXX X. XXXX	COUNSEL: NONE

	HEARING REQUESTED: YES
 
APPLICANT’S REQUEST

Her non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), be removed from her Officer Selection Record (OSR).

APPLICANT’S CONTENTIONS

In response to the Article 15 (dated 10 Aug 11), her civilian lawyer identified the mishandling of her case.  The Article 107, False Official Statements, charges against her are illegitimate, and her actions did not meet the UCMJ definition of a false official statement.  This included unofficial texts that was ultimately used against her for her worst offense (Article 107).  Additionally, there were three missing witness statements which were never brought forward for consideration. 

The Article 15 was expunged from her records (OSR, UIF and permanent records) on 10 Oct 12 at the approval of her then wing commander.  A complete legal review was conducted by the wing judge advocate, who supported the recommendation of removal.  The Article 15 was then reinstated into her record approximately Feb 21 due to the new Department of the Air Force's Policy Memorandum (DAFPM) guidance.  The recent guidance change does not consider that her NJP has been recommended for removal by both an AFPC legal review as well as senior leaders.

The incident occurred over 9 years ago and she has performed well.  Evidenced by her record of performance, she has become a two-time Major Weapons Systems (MWS) evaluator with over 530 combat hours and 1,400 total hours in both the EC-130H and T-1A, instructor, group executive officer, and was voted as Squadron Officer School (SOS) Outstanding Contributor.  She has received 14 #1 stratifications, ten squadron, three group and two wing awards.  Furthermore, she was selected to attend in-residence at the Air Command and Staff College.  There is no permanent record that remarks on the adverse action.

In support of her application, the applicant provided attachments (A-F) which includes: NJP removal request, Legal review of NJP removal, performance records, NJP proceedings, NJP response, and DAFPM guidance.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force major (O-4).

On 25 Jul 11, the applicant was notified of her commander’s intent to impose NJP on her pursuant to Article 15, for violation of three Articles: 86, Absence without leave, 92, Failure to Obey an Order, 107, False Official Statements.  Specifically, on or about 15 Jul 11, without authority, she failed to go at the time prescribed to her appointed place of duty.  Additionally, on or about 15 Jul 11, she was derelict in the performance of her duties in that she willfully failed to follow proper procedures for missing training for medical reasons.  Finally, on or about 15 Jul 11, with intent to deceive, she made an official statement, to wit: that she had gone to sick call, or words to that effect, which statement was false in that she did not go to sick call.

On 28 Jul 11, the applicant waived her right to court-marital, but indicated that she attached a written presentation in response to the NJP and did not request a personal appearance before her commander. 

On 10 Aug 11, the applicant’s commander finalized his decision and found that the applicant had committed one or more of the offenses alleged.   For these violations the commander imposed the punishment of a reprimand, forfeiture of $1,448.00 pay per month for two months, and restriction to base for 30 days.  That portion of the forfeitures in excess of $1,448.00 pay per month for one month is suspended until 9 Feb 12, after which time it will be remitted without further action, unless sooner vacated.  That portion of the restriction in excess of 15 days is suspended until 9 Feb 12, after which time it will be remitted without further action, unless sooner vacated.

On 15 Aug 11, the applicant elected to appeal to her commander and elected to submit matters on Officer Selection Record (OSR).

On 23 Aug 11, the commander elected to deny her appeal and determined the action will be filed in her OSR.  Additionally, the appellate authority elected to deny her appeal on 7 Sep 11.

On 23 Sep 11, the servicing staff judge advocate (SJA) found the record to be legally sufficient.

On 6 Jan 12, AF Form 4364, Record of Promotion Delay Resolution, was initiated to terminate the applicants promotion delay effective 2 Feb 12.  On 29 Feb 12 the Secretary of the Air Force approved delay termination effective 6 Jan 12.

On 2 Oct 12, the applicant petitioned her wing commander to remove her Article 15 from her OSR and Unfavorable Information File (UIF).  On 10 Oct 12, her wing commander approved her request.

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

APPLICABLE AUTHORITY/GUIDANCE

On 26 February 2021, the Secretary of the Air Force ordered a policy change via a Department of the Air Force Policy Memorandum (DAFPM) 2021-36-03 on Adverse Information for Total Force Officer Selection Boards to comply with Section 502 of the National Defense Authorization Act (NDAA) for Fiscal Year 2020, signed on 20 December 2019, as codified in title 10 United States Code, section 615(a)(3). 

The new law, DoD policy, and subsequent Air Force policy requires all adverse information to be filed in the officer’s master personnel records group and Officer’s Selection Record for consideration by both regular and reserve promotion selection, special selection, federal recognition, and selective continuation boards to the grade of O-4 and above, to include promotion processes to the grade of O-3 that involve adverse information that received significant media attention or is of interest to the Senate Armed Services Committee.   These changes came into effect for all promotion boards convening on or after 1 Mar 2020 and include historic adverse information previously issued on or after 1 Jan 12 and Article 15s and approved court martial findings dated prior to 1 Jan 12.   It further removed the authority for Wing commanders, delta commanders, or issuing authorities to direct removal of derogatory data from the OSR as previously permissible in AFI 36-2907, Adverse Administrative Actions, paragraph 3.4.3.1, and AFI 36-2608, Military Personnel Records, paragraphs 7.10 through 7.12 (and their subparagraphs), 8.3.8, and 8.3.15 (and its subparagraphs).  Adverse information that requires mandatory filing in the Officer Selection Record (OSR) and the Master Personnel Records Group (MPerRGp) includes, but is not limited to:  

1. Any substantiated adverse findings or conclusions from an officially documented investigation or inquiry, regardless of whether command action was taken as a result.
2. Approved court-martial findings of guilt (Court-martial Orders).
3. Non-judicial punishment pursuant to Article 15, Uniform Code of Military Justice.
4. Letters of Reprimand.
5. Letters of Admonishment.
6. Notices of Relief of Command (for cause).
7. Letters of Counseling related to a substantiated adverse finding or conclusion from an officially documented investigation or inquiry. 

LOCs unrelated to a substantiated finding or conclusion from an officially documented investigation or inquiry will not be considered adverse information. This preserves commanders’ ability to administratively document and rehabilitate minor instances of substandard behavior or misconduct without making it a part of the permanent record (also referred to as “standalone” LOCs).

Moreover, the DAFPM states that “waivers to this policy are not permitted” and all adverse information as defined by the policy will be permanently placed in the MPerRGp.  Except for the set aside of a court-martial or nonjudicial punishment action, removal of adverse information from the MPerRGp may only be directed pursuant to an Air Force Board for Correction of Military Records (AFBCMR) recommendation.  

Given the aformentioned, the AFBCMR is now the sole removal authority for adverse actions.  This is not a different type of review for the AFBCMR.  Rather, it falls under the Board’s existing review authority for corrections resulting from error or injustice

AIR FORCE EVALUATION

DAF/JA recommends denying the application.  The applicant, echoes her civilian attorney’s memorandum from 27 Jul 11, that challenges the UCMJ Article 107 charge.  Counsel argued that the applicant’s false text message saying she went to sick call was not an “official” statement within the meaning of UCMJ Article 107.  Additionally, the lieutenant colonel (Lt Col), who was a fellow student, was typically informal in his text message communications to her, and therefore her false message to him should not be considered official.  Counsel’s memorandum contained a sample casual text message from the Lt Col to her asking if she wanted to join him for “some beers with a few dudes”.  Counsel also cites the case of United States v. Day, 66 M.J. 172 (CAAF 2008) as support.  DAF/JA disagrees, the facts of that case are plainly distinguishable from the facts here. In Day, the Court of Appeals for the Armed Forces (CAAF) held the accused’s false statement to a civilian off-base 9-1-1 dispatch operator was not official, but his false statements to the responding civilian fireman was official.  Most salient to the present application, the court held that “the critical distinction is not whether the recipient of a statement is civilian or military, but whether the statements relate to the official duties of either the speaker or the hearer, and whether those official duties fall within the scope of the UCMJ’s reach.” Day, 66 M.J. at 174.  Here, the Lt Col was acting as the “class SRO” according to the counsel’s memorandum, which DAF/JA interprets to mean “senior ranking officer”.  It is clear, the reason she initiated text message communications at 0544 to tell him she was taking a personal day was because she was letting her military chain of command know that she would be missing a military requirement.  There is no doubt that her statement “related to the official duties” of both the speaker and the hearer, and that those duties were within the scope of the UCMJ’s reach.  Regardless of how informal the Lt Col was in past communications when inviting her to social gatherings, the false statement in question was the result of communication she initiated in the performance of her official duties. 

Additionally, the applicant argues that because she was not advised of her UCMJ 31(b) rights before the Lt Col asked if she went to sick call, the statement was obtained illegally. DAF/JA disagrees and her civilian counsel misstates the law when he says, “an illegally obtained statement is equally illegally obtained whether it’s ultimately used in a court-martial or to support an administrative action.” Part V of the Manual for Courts-Martial is the relevant section on NJP procedure. Part V, Section 4c(3) clearly states: “The Military Rules of Evidence, other than with respect to privileges, do not apply at nonjudicial punishment proceedings.”  Not only were 31(b) warnings not required for this situation according to DAF/JA’s legal analysis; even if they were required, the inapplicability of evidentiary rules at NJP means that her statement could certainly be considered by the NJP authority. 

The applicant argues that “there were three missing witness statements which were never brought forward for consideration.” DAF/JA disagrees for three reasons.  First, as described in the advisory, the applicant realized and remedied the issue prior to the NJP.  The applicants NJP response contains a witness statement attesting that the applicant was, indeed, sick while in New Orleans.  Second, this is not a dispositive matter since there is no question of whether the applicant was truly sick or not.  Rather, she was charged for not going to sick call despite missing training due to alleged sickness, then lying about having gone to sick call.  The fact remains that whether she was ill or in good health, she departed Jacksonville, AR, and drove seven hours to New Orleans, all the while claiming to be ill enough to miss class, then lied about it.  Third, because NJP proceedings do not follow the strict evidentiary rules used for courts-martial, any allegedly missing statements did not create any legal harm. 

Finally, the applicant argues that her NJP record had already been removed from her OSR, and as a result it should not be re-entered pursuant to the new rules.  DAF/JA disagrees, the National Defense Authorization Act (NDAA) for FY20’s provision on furnishing information to selection boards was properly enacted by Congress then signed into law by the President and codified in 10 USC 615(a)(3), Information Furnished to Selection Boards; DoDI 1320.14 was properly issued by the Department of Defense to implement the mandatory change; and DAFPM 2021-36-03 was similarly properly issued by the Department of the Air Force.  Furthermore, the DAFPM is clear that waivers to this policy are not permitted.  As a result, we find no error or injustice.  

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 Dec 21 for comment        (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Furthermore, the applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  Additionally, DAFPM 2021-36-03 directs historic adverse information that was issued prior to the date of the implementation of the policy to be filed in the Master Personnel Records Group (MPerRG).  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-2021-01945 in Executive Session on 15 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 24 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 2 Dec 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 3 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.