RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02443

XXXX X. XXXX	COUNSEL: XXXX X. XXXX
	
 	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  His non-judicial punishment (NJP) under Article 15 that imposed a reduction in grade from technical sergeant (E-6) to staff sergeant (E-5) be set aside.

2.  His referral Enlisted Performance Report (EPR) be removed.

3.  His grade of technical sergeant (E-6) be reinstated with back pay.

APPLICANT’S CONTENTIONS

The commander violated his due process rights by issuing an Article 15 in clear error.  The error was made worse when he was cleared of misconduct by the Administrative Separation (ADSEP) board.  The commander admitted under oath at the ADSEP board that he was not aware of exculpatory information at the time he issued the Article 15.  Despite the commanders admission, he refused to set aside the Article 15 and restore his grade.  This is a clear factual and legal error and an abuse of discretion.

In support of his appeal, the applicant provides various documents including an eight page brief from legal counsel, a copy of the Office of Special Investigations (OSI) report, a copy of the Article 15, and excerpts from the applicant’s legal counsel’s closing argument at the ADSEP Board.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force staff sergeant (E-5).

On 14 Sep 20, the applicant was notified of his commander’s intent to impose NJP on him pursuant to Article 15, for two violations of Article 120, Rape and Sexual Assault generally.  Specifically, on or about 22 May 20, he touched the buttocks of a senior airman and an airman first class with his hand, with an intent to gratify his sexual desire, without consent.

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

On 23 Sep 20, the applicant’s commander finalized his decision and found 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 staff sergeant, with a new date of rank (DOR) of  23 Sep 20.  Additionally, the commander imposed the punishment of a reprimand, forfeiture of $1,750.00 pay per month for 2 months, suspended though 22 Mar 21, after which time it would be remitted without further action, unless sooner vacated.

On 28 Sep 20, the applicant elected not to appeal and did not submit matters on his Senior Noncommissioned Officer Selection Record (SNCOSR).  

On 5 Oct 20, the servicing staff judge advocate (SJA) found the record to be legally sufficient.

On 17 Dec 20, according to the findings of the ADSEP board, provided by the applicant, the board found that the applicant did not touch the buttocks of a senior airman or an airman first class, with the intent to gratify his sexual desire and the allegations did not form a basis for discharge under AFI 36-3208, Administrative Separation of Airmen, paragraph 5.55.  As such, the board found a preponderance of the evidence did not support that he committed a sexual assault, and he was retained in the Air Force.

On 16 Mar 21, the applicant acknowledged receipt of his referral EPR closing out 31 Jan 21.  The report was referred for the violations listed in the Article 15 issued on 14 Sep 20.   

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

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-2907, Adverse Administrative Actions, Chapter 2 Administrative Counseling, Admonishment, and Reprimand, certified current 15 Jan 21: 

2.2. Standard of Proof.  The Standard of Proof for adverse administrative actions is the “preponderance of the evidence.”  This standard will be used when evaluating the evidence and every element of the alleged offenses.

2.2.1.  A preponderance of the evidence exists when it is more likely than not that events have occurred as alleged.  Preponderance of the evidence is not determined by the number of witnesses or exhibits, but by all the evidence and evaluating factors such as a witness’ behavior, opportunity for knowledge, information possessed, ability to recall, as well as related events and relationship to the matter being considered. 

2.4.6.3.2.  Rescinding a Record of Individual Counseling, Letter of Counseling, Letter of Admonishment or Letter of Reprimand removes the rescinded action from the Unfavorable Information File or Personnel Information File.  However, it does not automatically remove it from historical documents or actions collaterally impacted by the rescinded document, such as a referral Officer or Enlisted Performance Report or promotion withhold.  Airmen seeking relief from the collateral consequences of a later-rescinded administrative action must apply to the appropriate forum, to include, for example, the Air Force Board for Corrections of Military Records.

AFI 36-2406, Officer and Enlisted Evaluations systems, Chapter 1.10 Referral Evaluations, certified current 25 Jun 21.

1.10.3.1.  Comments in any Officer Performance Report, Enlisted Performance Report, Letter of Evaluation, or Training Report (to include attachments), regardless of the ratings, that are derogatory in nature, imply or refer to behavior incompatible with or not meeting Air Force  standards, and/or refer to disciplinary actions. When considering the airman’s ability to meet standards, consider unacceptable performance as actions that are incompatible with, and/or airmen who have routinely (a repeated inability to meet standards that would render the aggregated performance assessment over the entire reporting period as below Air Force standards and expectations) and/or significantly (a single instance where failure to meet standards is either egregious in nature or so far short of a standard that it impacts overall aggregated performance assessment) failed to adhere to established Air Force standards and expectations.

AIR FORCE EVALUATION

DAF/JA recommends denying the application.  The allegations of error or injustice on the DD Form 149 are summarized as follows:  1) The NJP was clearly erroneous, hence the commander violated the applicant’s due process rights.  2) The ADSEP board found no misconduct, hence the commander committed a clear error.  3) The commander admitted at the ADSEP hearing that he was not aware of exculpatory evidence at the time of the NJP, hence he committed a clear error.  4) Despite his admission, the commander did not set aside the NJP, hence he committed a clear error and an abuse of discretion. 

Additionally, the counsel’s memorandum to the Air Force Board for Correction of Military Records (AFBCMR) contains a fifth allegation of error: 5) AFOSI committed “material error” and conducted a “flawed investigation” that was based solely on the unsupported allegations of a complaining witness and ignored the clear denial by another witness that anything intentional or inappropriate had occurred.

DAF/JA reviewed each of the allegations and noted the following:

1. NJP Clearly Erroneous; Due Process Violations.
Their review indicates 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 applicant’s offense.  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 peers, which he opted against.  The applicant appealed the NJP and the appellate authority denied it.  The applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  Hence, the NJP was not clearly erroneous, and the applicant was afforded all due process.

2. Error at NJP in Light of ADSEP?
The ADSEP board is a legally independent process and is not an appellate level review of NJP.  Therefore, the ADSEP board’s decision does not affect the legal sufficiency of the commander’s NJP.

3. The Commander’s Confession at ADSEP Cross-examination? 
The applicant’s counsel states the NJP authority admitted at the ADSEP hearing that he was not aware of exculpatory evidence at the time of the NJP, hence he committed clear error.  This is a misstatement of the facts.  First, counsel did not provide the actual transcript of the hearing in the application, only excerpts.  Second, even if the excerpts are an accurate reflection of the complete record, they nevertheless do not show what counsel claims. 

4. Despite Commander’s Admission, He Did Not Set Aside NJP. 
As analyzed above, there was no such “admission” by the commander.  For argument’s sake, it is assumed that the NJP authority did not initially consider the evidence the applicant mischaracterizes as exculpatory at NJP.  Even then, the commander did not abuse his discretion when he subsequently decided against setting aside the NJP.  The law holds that “an abuse of discretion occurs when a court’s findings of fact are clearly erroneous or the decision is influenced by an erroneous view of the law.” United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013).  Here, the commander considered all facts, and even considered the ADSEP board’s findings, thereby correctly following and understanding the law and process.  The wing’s staff judge advocate informed DAF/JA that he provided legal advice to aid the NJP authority’s deliberative process.  As a result, it is clear that the commander was guided by a legally sound view of the law, and there was no clear error in his determination. 

5. Flawed AFOSI Investigation Based Solely on Unsupported Allegations. 
The application contains no evidence to show that the investigation was based “solely on unsupported allegations.” There were at least four third-party witness statements that support the two victims’ allegations.  While DAF/JA does not opine on the weight of these supporting statements, as that is outside their scope, they do address whether the commander relied on reasonable evidence.  In this regard, the law states that 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).  Here, the commander had more than sufficient evidence to support his findings based on these witness statements.

The record contains insufficient evidence of error or injustice tending to undermine the applicant’s NJP action or imposed punishment.

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 8 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.  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 that the applicant waived his right to a court-martial and concurs with DAF/JA, that the applicant’s commander had evidence, including statements from multiple witnesses that supported the victim’s allegations, 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 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 was 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-2021-02443 in Executive Session on 23 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 19 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 7 Dec 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 8 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.