RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02238

XXXX X. XXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES 

APPLICANT’S REQUEST

1.  His non-judicial punishment (NJP) under Article 15 that imposed a reduction in rank from staff sergeant (E-5) to senior airman (E-4) be set aside.

2.  His Referral Enlisted Performance Report (EPR), Unfavorable Information File (UIF), and Control Roster be removed.

3.  His rank of staff sergeant (E-5) be reinstated with a date of rank (DOR) of 1 Nov 18.

4.  He be allowed to test for the rank of technical sergeant (E-6).

APPLICANT’S CONTENTIONS

He did not commit the crime of strangulation and assault against his spouse.  In fact, he was the one that was abused by his spouse and his spouse was previously arrested for said crime.  On several occasions, his spouse would break their personal property and would physically try to hurt him.  While he would try to prevent her attacks, he never assaulted her.  Furthermore, the allegation for assault and strangulation was dismissed by the civilian courts and due to his spouse being mentally unstable, Child Protective Services (CPS) deemed him the most fit parent to raise their daughter. Despite the fact that the civilian courts dismissed his case, the Air Force decided to investigate.  While he provided over 70 photos and videos, character statements and his wife’s testimony, which proved he had not committed the crime, his commander still found him guilty.  

In addition, he believes that his punishment is racially bias and unfair, because he witnessed a Caucasian airman in his unit with more severe charges only get a Letter of Reprimand (LOR).  He then references an article he read which showed black service members are 72% more likely to receive NJP.  

While, he went to the Equal Opportunity (EO) office and the Inspector General (IG) and they explained that 50% of the people interviewed didn’t think there were disparities and IG even admitted that the demotion seemed excessive, IG found that the commander had the right to find him guilty, regardless of substantial evidence to the contrary.   

He is not here to point blame or evade responsibility, but hopes that his dedication to the Air Force is considered and his punishment be tailored to the offense and the offender [sic].  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force senior airman (E-4).

On 12 Nov 20, the applicant was notified of his commander’s intent to impose NJP on him pursuant to Article 15, for violation of two Articles 128b, Domestic Violence and 109, Property other than military property of United States—Waste, spoilage, or destruction.  Specifically, on or about 2 Jun 20, he unlawfully strangled his intimate partner, by putting her into a chokehold, and he unlawfully assaulted his intimate partner, by grabbing her arms with his hands and threw her to the ground.  Additionally, on or about 2 Jun 20, he willfully and wrongly damaged a car window, not of his property.

On 18 Nov 20, the applicant waived his right to court-marital, but indicated that he attached a written presentation in response to the NJP and requested a personal appearance before his commander that is not public. 

On 3 Dec 20, 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 reduction to the grade of senior airman (E-4) with new date of rank (DOR) of 3 Dec 20 and issued a reprimand.   

On 8 Dec 20, the applicant submitted an appeal to his commander and the appellate authority, and on 10 Dec 20 and 15 Dec 20, respectively, his appeal was denied.

On 21 Dec 20, the servicing staff judge advocate (SJA) found the record to be legally sufficient.

On 22 Apr 21, the applicant acknowledged receipt his referral EPR closing 31 Mar 21.

On 26 Apr 21, the applicant submitted his comments to rebut the evaluation, and on 30 Apr 21 the commander endorsed the evaluation as a referral report.

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

AIR FORCE EVALUATION

DAF/JA recommends denying the application.  At the core of the applicant’s allegation of error or injustice is that the NJP authority made an erroneous factual determination.  He presents the same or similar evidence that the NJP authority and the appellate authority already considered.  After careful review of the evidence and application, we find that the NJP authority, as fact-finder, based his determination on a reasonable analysis of the evidence, and we defer to his discretion.  It is beyond the scope of our role to replace the factfinder or conduct a de novo review of the facts.  That does not mean a commander is always afforded blind deference.  If an NJP authority was clearly erroneous or abused his discretion, then NJP action can and should be reviewed.  

Under the law, a finding of fact is considered clearly erroneous if “there is no evidence to support the finding.” United States v. Henry, 81 M.J. 91, 102 (C.A.A.F. 2021).  However, in the present case there was evidence that the applicants commander could have reasonably relied on, including a statement from a neighbor who witnessed the events.  As a result, we conclude the 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 and presented his case and any evidence before a jury of his peers, which he opted against.  Therefore, we find no basis to set aside the applicant’s NJP.

In regards to the commander’s decisions to issue the Referral EPR, UIF, and Control Roster, they similarly merit deference.  Chapter 2.2 of AFI 36-2907, Adverse Administrative Actions, is clear that “the standard of proof for adverse administrative actions is the ‘preponderance of the evidence,’” which is a low threshold.  Hence, even if the commander had concluded differently at the Article 15 hearing regarding the charged offenses, he would still have been within his discretion to take those administrative actions against the applicant.  

The record contains insufficient evidence or allegation of error or injustice tending to undermine the applicant’s imposed NJP or unfavorable 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 2 Dec 21 for comment        (Exhibit D), and the applicant replied on 29 Dec 21.  In his response, the applicant contended there was evidence on the day in question of his face showing scratches/bruises and none on the alleged victim, causing the applicant to question how this was considered within the commander’s discretion.  He provided evidence to his superiors that showed he was on the receiving end of abuse during each encounter.
 
The applicant states that he was awarded full custody of his child which caused him to have a daily daycare plan and due to the Article 15 he received a housing allowance decrease causing additional financial strain.  Ultimately, he felt the commander failed to provide consideration for his daughter’s health and well-being or his career, given that he was approaching higher tenure.  The demotion and referral EPR, following an Article 15 will directly affect his future testing at a crucial time in his career.  

The applicant has attached a second police report where it goes into detail on how the alleged victim was the aggressor two weeks later.  The report stated, he had a swollen eye and more bruises to the face which was consistent with the first domestic case.  The report also mentions she hid in the neighbor's backyard, which, the applicant feels, proves they were friends, because she had to be allowed in the backyard.  This alludes that the commander relied on a flawed statement from a neighbor that hid the offender and was unethical especially as the statement was not under oath. 

The applicant feels, awareness should be raised on the high level of violence in families and how we reflect on laws and inequities that are created and how we protect ourselves against false allegations of abuse in a flawed Air Force system.  He went to his leadership to notify them of the obstacles he was facing at home.  He submitted an Article 138, Complaints of wrongs, which states, he was punished under Article 15 without any evidence of wrongdoing to include Office of Special Investigations (OSI) reports, statements, and photos which deepens how flawed the justice system is within the Air Force.  Shortly after the Article 138 was sent up, the First Sergeant called him to her office and provided him with the OSI report after he had already been reprimanded.  She apologized and promised it wouldn't happen to anyone else although, he never received any of this documentation initially which he feels is a huge issue that should be addressed. He is hoping these findings are a step in the right direction with changing policies commanders abide by, not only for him but others in the Air Force.

The applicant’s complete response is at Exhibit E.

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.  AFI 51-202, Nonjudical Punishment, Paragraph 3.4. Standard of Proof, states “While no specific standard of proof applies to NJP proceedings, including appeals, commanders should recognize that a member is entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt of each element of every offense by legal and competent evidence is a prerequisite to conviction.”  In this regard, the Board notes the applicant waived his right to a court-martial and concurs with DAF/JA, that the applicant’s commander had evidence, including a statement from a neighbor who witnessed the events, which he could reasonably rely on.  As such, the commander did not abuse his discretion in administering the NJP, the punishment imposed was within the permissible range for the offenses, and the applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  Therefore, the Board finds insufficient evidence to prove that the reasons for the Article 15 are unsubstantiated.  Since the referral EPR, UIF, and Control Roster were a result of the preceding violations for which he received an Article 15 and the reasons for the NJP still stand, the Board finds that the reasons for these ensuing administrative actions also still stand and the commander did not abuse his authority in imposing said actions.  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-2021-02238 in Executive Session on 1 Feb 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 Jun 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 1 Dec 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 2 Dec 21.
Exhibit E:	Applicant’s Response, w/atchs, dated 29 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.