RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01985

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES 

APPLICANT’S REQUEST

1.   His letter of reprimand (LOR), dated 27 Mar 14 be removed from his records.

2.   The Adverse Information File (AIF) be removed from his records.

3.   In the alternative, the AIF be corrected.

4.   If selected for promotion by the special selection board (SSB), his promotion to the rank of major (O-4), with a DOR and effective date of 1 Aug 20 be restored.  

APPLICANT’S CONTENTIONS

He met an SSB in May 21 for promotion to major.  His senior rater notified him the AIF would accompany his potential promotion nomination to the Secretary of the Air Force (SecAF), Office of the Secretary of Defense (OSD), the White House and the Senate Armed Services Committee (SASC).  The AIF is inaccurate due to a faulty Air Force Office of Special Investigations (AFOSI) Report of Investigation (ROI).  It is in the interest of justice the Senate be given accurate information.  The errors include his duty title, that he refused to answer questions and issue a written statement and that he received photographs.  Further, his rebuttal was not included in the AIF to accompany the LOR as required by the AIF guidelines.  The AFOSI investigation was inaccurate, incomplete and did not meet minimum standards for a criminal investigation by denying him due process.  He was wronged by not being allowed to defend himself against the allegations.

He was promoted to major on two previous promotion boards.  The AIF resulted in his nomination being withheld.  The nomination timed out and he was required to be re-boarded as a one-time pass over for promotion to major.  If selected for promotion, his original DOR of 1 Aug 20 should be restored.  The stress from the promotion fiasco was a contributing factor in his divorce and depression.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

The applicant entered active duty on 22 Jul 10 for the purpose of attending officer training school (OTS).  Upon completion of OTS, on 15 Dec 10, he was discharged in the rank of staff sergeant (E-5) for the purpose of commissioning.  

The applicant provides AFOSI summary which shows “Prior Enlisted; graduated OTS Dec 10” and his duty title as “ICBM Combat Crew Flight Commander.”  

The AFOSI ROI dated 11 Feb 14, states an investigation was opened based on information obtained during an investigative activity which revealed wing missile personnel were cheating during their monthly proficiency tests.  The applicant was among a group of officers investigated for failure to obey a general order, conduct unbecoming an officer: cheating.  The ROI states another subject’s cell phone showed they had sent the applicant test materials via text message and photograph.  Subsequent to an Article 31 rights advisement, the applicant declined to answer questions and requested legal counsel.  As a result, the interview was terminated.  The applicant provided consent to search his phone.  The applicant’s cellular phone message traffic prior to 21 Jan 14 appeared to have been erased.  His phone contained images dating back to 5 Apr 13 but not message traffic prior to 21 Jan 14.  The applicant’s cellular phone contained no evidence pertinent to the investigation.  

On 27 Mar 14, the applicant received an LOR.  An investigation disclosed between 23 Sep 11 and 31 Jan 14, he conspired with another officer to cheat, in violation of Article 133, Uniform Code of Military Justice (UCMJ).  He received the test answers and then thanked the officer who sent them to him.  The monthly proficiency tests were critical in maintaining certification to perform his duties.  

On 1 Apr 14, the applicant acknowledged the LOR and the determination that it would be filed in his officer selection record (OSR).  On 8 Apr 14, the Numbered Air Force Commander (NAF/CC) indicated he reviewed the written matters provided by the applicant and determined the LOR and unfavorable information file (UIF) would be maintained.  

The LOR in the applicant’s automated records management system (ARMS) record does not include his rebuttal response.  However, the applicant provides a copy of the rebuttal to the LOR dated 31 Mar 14.  The applicant took full responsibility for receiving the answers in two text messages and failing to report the officer who sent the text messages.  While he admits to receiving the text messages, he does not accept the accusation he cheated on any tests.  The AFOSI never reached out to him through legal counsel.  There were are also a number of inaccuracies in the AFOSI ROI to include his duty title as “prior enlisted” as well as “flight commander.” In Dec 12, after receiving the second text message, he personally asked the officer to stop sending him the answers and encouraged him to stop the practice and to take the tests honestly.  His goal was to handle it at the lowest level.  It did not feel at the time that additional action was required.  He obviously was wrong and regrets his decision.  He was also unaware others were cheating and transmitting answers to classified tests with a certain degree of regularity.  

On 7 Jul 17, the applicant was terminated from active missile alert service.  

The adverse information summary (AIS) for the CY20 Promotion Review Board states the applicant, as a first lieutenant (O-2) was an Intercontinental Ballistic Missile (ICBM) Combat Crew Flight Commander when identified as one of several officers involved in a potential compromise of knowledge test material.  The test compromise involved several officers sharing monthly test answers with other officers who had not yet taken the examinations.  On 30 Jan 14, the major command commander (MAJCOM/CC) initiated a commander directed investigation (CDI) into the facts and circumstances surrounding the potential test compromise.  The CDI substantiated the allegations against more than 70 officers in varying degree of culpability.  The CDI revealed the applicant was derelict in his duties by failing to report known compromises of multiple knowledge tests by receiving test material from fellow officers.  The applicant was issued an LOR.  

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

APPLICABLE AUTHORITY/GUIDANCE

DODI 1320.04 Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation, requires all credible information of an adverse nature be presented to a promotion review board when the adverse information is required to be reported to OSD.  The promotion review board will make a recommendation to the SecAF whether to support the officer for appointment to the next higher grade.  Adverse information is defined as a substantiated finding or conclusion from an officially documented investigation or any credible information of an adverse nature.  To be adverse, the information must be derogatory, unfavorable or of a nature that reflects unacceptable conduct, or a lack of integrity or judgment on the part of the individual.  When an officer with an AIF is recommended for appointment to a higher grade, the SecAF is required to provide a summary of the adverse information to OSD, including specific rationale for supporting the appointment of the officer and a certification that the officer meets the exemplary conduct provisions of 10 U.S.C. §9233.  OSD in turn is required to report to the President and the Senate for consideration in connection with the officer’s potential nomination for and confirmation to the next higher grade.  Based on the information presented by AF/A1P, SAF/GC, on behalf of the SecAF, makes the decision as to the final content of the AIF.  An AIF normally consists of three items: (1) the AIS; (2) documentation reflecting command action, if any; and, (3) the member’s response.  

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial for the removal of the LOR.  The commander and supervisor had the authority to issue it and there is no requirement to prove any allegation beyond a reasonable doubt in accordance with AFI 36-2907, Adverse Administrative Actions.    

The complete advisory opinion is at Exhibit D.

AFPC/JA recommends denial.  The applicant has failed to establish his due process rights were violated.  AFOSI investigations are designed to gather evidence that is then referred to commanders for action as they see fit.  While it is always desirable for any investigating agency to obtain a statement from the accused, there is no legal requirement to do so, and in fact, quite often, due to the Fifth Amendment right to remain silent, it is impossible to do so.  

On the other hand, action taken by a commander in response to an investigation has the potential to deprive an individual of a “life, liberty or property” interest; therefore, due process rights are triggered upon command action.  The AFOSI referred their investigation to the applicant’s commander.  Upon review of the ROI, the commander deemed there was sufficient evidence against the applicant to support issuance of an LOR.  The applicant was notified of the LOR and provided with three duty days to respond.  The applicant chose to provide a written response, which the commander reviewed.  The commander thereafter determined it appropriate to maintain the LOR.  The commander also afforded the applicant an opportunity to speak with his attorney and provide a response to defend himself prior to making his final determination.  

The complete advisory opinion is at Exhibit E. 

AF/A1PPP recommends denial for removal of the LOR and defers whether the AFOSI summary document is inaccurate as the applicant believes.  AF/A1PPP also recommends denial for restoration of his DOR if promoted as the applicant’s nomination is pending at the OSD and the nomination has not been Senate confirmed.

The applicant was selected for promotion to major by the CY18D Line of the Air Force (LAF) Major Central Selection Board (CSB).  The applicant’s nomination was pending Presidential approval as of Oct 20 and was not forwarded for Senate confirmation before the applicant’s promotion eligibility period expired on 1 Dec 20.  As a result, in accordance with 10 U.S.C. § 629, the applicant was notified of his administrative removal from the promotion list, which resulted in his non-selection for promotion.  Because the applicant did not have the opportunity to meet the CY20D Major LAF CSB, he was projected to meet an SSB, which convened on 7 May 21.  The results of the SSB were briefed to the SecAF and reported to the OSD.  The applicant’s nomination is currently pending review at the OSD.

The AIF is not a permanent record but is a file created using multiple source documents as required by DODI 1320.04.  The requirement to include the AIF with the applicant’s previous nomination was due to the applicant’s involvement in the test compromise incident.  It was a significant event that was widely known to the general public or members of Congress bringing discredit upon or calling into question the integrity of members of the DoD.

The complete advisory is at Exhibit F.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 10 Feb 22 for comment (Exhibit G), 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 recommendations of AFPC/DP2SSM, AFPC/JA and AF/A1PPP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends the AFOSI ROI includes errors and his due process rights were violated.  However, the Board finds the applicant did in fact conspire with another Air Force officer to cheat on his knowledge test, in violation of Article 133, UCMJ.  The applicant contends the LOR may have been issued due to the AFOSI ROI showing he was prior enlisted and his duty title was flight commander.   His completion of OTS was in an enlisted status, rank of SSgt.  Moreover, the Board does not find the minor error in his duty title contributed to the decision of the issuance of the LOR as the CDI substantiated allegations against more than 70 officers in varying degree of culpability.  In this respect, there is no evidence the applicant was singled out with the issuance of the LOR due to his prior enlisted status or duty title.  Further, the applicant in his rebuttal response acknowledged he received the answers for the knowledge test but failed to report the cheating, which he now knows was wrong.  The Board also recognizes the applicant was previously selected for promotion by the CY18D Major Central CSB; however, the administrative removal from the promotion list was in accordance with 10 U.S.C. § 629.  Further, the Boards notes the inclusion of his AIF in his promotion package is required per DODI 1320.04.  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-2021-01985 in Executive Session on 3 Mar 22 and 11 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 30 Apr 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  AFOSI Report of Investigation, dated 11 Feb 14. (WITHDRAWN) 
Exhibit D:	Advisory Opinion, AFPC/DP2SSM, w/atchs, dated 22 Jul 21.
Exhibit E: Advisory Opinion, AFPC/JA, dated 4 Aug 21.
Exhibit F:  Advisory Opinion, AF/A1PPP, dated 10 Feb 22.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 10 Feb 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.