RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03190

XXXX X. XXXX	COUNSEL: XXXX X. XXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1. His non-judicial punishment (NJP) dated 23 Sep 19 be removed from his record and all punishment be remediated accordingly.

2.  His referral Enlisted Performance Report (EPR) resulting from his NJP be voided and removed from his record.

APPLICANT’S CONTENTIONS

The investigation into the allegations against the applicant was woefully inept, and the charges were levied without sufficient evidence based on the accusations made by not credible witnesses.  According to the Save Our Heroes Project, allegations of sexual assault made to civilian authorities, after investigation, are often dismissed because of a lack of evidence or credibility but are then fully prosecuted in military proceedings, with convictions.  The burden is not on the applicant to come forth with evidence of his innocence, but the burden was on the investigating officer to offer credible evidence of his commission of the accusations against him. 

According to AFI 36-2706, Equal Opportunity Program Military and Civilian, para 1.4.1, requires that the Equal Opportunity (EO) Office provide a subject matter expert (SME) to “commanders and organizations conducting in[vesti]gations related [to] unlawful discrimination or sexual harassment”.  Furthermore, in para 3.3.2, the investigating officer must request the assistance of a SME if the appointing authority directs a military EO related investigation.  According to para 1.4.1, the SME is meant “to ensure that EO issues are handled correctly and efficiently.”  Para 3.2.3 states, in a Command Directed Investigation, the EO specialist should be used as the SME and in that capacity, provide assistance developing interview questions, analyzing evidence and reviewing the draft Report of Investigation prior to the submission to the Staff Judge Advocate (SJA) for review.

There was no EO specialist or SME as required by regulation, and it is a clear violation of not only regulation, but the applicant’s due process rights.  The SME is meant to ensure all EO issues, including sexual harassment investigations, are handled correctly.  The lack of a proper investigation into the accusations levied against the applicant is exactly why this requirement is in place, to ensure that investigations are performed correctly.

According to Command Directed Investigations (CDI) Guide, para. 2.3.2., where wrongdoings may rise to the level of a Uniform Code of Military Justice (UCMJ) violation and the punishment is likely to be a NJP, law enforcement should investigate.  Sexual harassment accusations are likely to result in NJP.  As such, a proper investigation should have been ordered, one that looked into the credibility of the accusers as well as the gathered evidence. 

The investigating officer, failed to appropriately investigate the accusations levied against the applicant.  The investigation resulted in an interviewing of a total of seven individuals.  The investigating officer used evidence gained through hearsay from the accuser’s boyfriend, who was then deployed, and did not bother to speak with the applicant’s wife or the friends/coworkers of the accuser to determine the veracity of her accusations.  The investigating officer spoke to superior officers and the two airmen who witnessed the conflict but did not verify if the accusers had ulterior motives.

According to AFI 36-2706, para. 3.20.1. “Credible evidence is defined as evidence that is believable, confirmed, corroborated, etc.”  The standard of proof for a CDI is preponderance of the evidence.  CDI Guide, para 1.4. states, the preponderance of evidence is defined as “the greater weight and quality of credible evidence”.  This means that one position is more probable than another given the weight and quality of the evidence.  The little evidence the investigating officer collected is not credible.  The entirety of the evidence that the applicant acted at all inappropriate in either statement or action, is from the accusers.  No other person could provide supporting eyewitness testimony that the applicant sexually harassed either of the accusers.  Only that the applicant called one of the accusers when she acted disrespectfully toward him.  The applicant provides detailed examples and references multiple exhibits identified within his application.

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 4 Sep 19, provided by the applicant, he was notified of his commander’s intent to impose NJP on him pursuant to Article 15, for violation of two Articles: 120c, Other Sexual Misconduct, and 92, Failure to Obey an Order.  Specifically, on or about 1 Dec and 31 Dec 18, intentionally expose his genitalia, in an indecent manner, to wit: removing his penis from his trousers and exposing himself.  Additionally, on or about 1 Apr and 21 May 19, he was derelict in the performance of those duties in that he negligently failed to adhere to AFI 1-1, Air Force Standards , para 1.7.4.4 as it was his duty to do, to wit: by sexually harassing other members of his unit.

On 10 Sep 19, the applicant waived his right to court-marital, but indicated he attached a written response and requested a private personal appearance before the commander. 

On 23 Sep 19, 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 $1,698.00 pay per month for 2 months suspended through 22 Mar 20, and a reduction to the grade of staff sergeant (E-5) with new date of rank (DOR) of 23 Sep 19. 

The Automated Records Management System (ARMS) does not contain a copy of the applicants AF Form 3070B, Record of Nonjudical Punishment Proceedings (TSgt thru CMSgt).

On 20 Dec 19, the applicant was notified of his commander’s action with AF Form 3212, Record of Supplementary Action Under Article 15, UCMJ, where his portion of NJP which called for: forfeiture of $1,698.00 pay per month for 2 months suspended through 22 Mar 20, be remitted.

On 9 Jan 20, a command directed referral evaluation for period of report 1 Dec 18 through 21 May 19 was issued to the applicant for the offenses listed in the 4 Sep 19 Article 15.

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.  The two central allegations of error or injustice is a lack of credible evidence and an investigator’s failure to abide by regulations.  In regard to the allegation of a lack of credible evidence, the applicant alleges XXXX lacks credibility because “she has a problem with authority and was upset about [a previous] altercation.”  He also alleges that XXXX “is not a credible witness either because she is a disgruntled ex-flame.”  The application contains numerous other challenges against the two women’s character and their motives to fabricate, and contains numerous other factual challenges.  DAF/JA does not summarize these due to their number and volume.  Additionally, DAF/JA does not analyze these factual challenges because of the narrow scope of their legal review, and the limited capability to conduct a factual review.  However, DAF/JA does note that these factual challenges are not based on new evidence, and that the NJP authority, who was the fact-finder, already considered all of them for the Article 15 hearing and post-hearing appeal. 

The only possible new evidence is a memorandum by a XXXX to the commander containing hearsay statements from XXXX (one of the two accusers) allegedly confiding to XXXX that she planned to file a complaint against the applicant because she was unhappy about her work hours. (Exhibit 7 of the applicant’s submission.)  The memorandum is dated 27 Sep 19, which was one day after the applicant’s NJP response to the commander, dated 26 Sep 19.  The record is unclear whether the NJP authority reviewed it concurrently with the applicant’s response.  Furthermore, the date of the memorandum and the fact that it was addressed to the commander suggests he reviewed it; hence, DAF/JA finds no new evidence of an error or injustice.  However, even if the memorandum was not reviewed, it contains no dispositive evidence of error or injustice. 

In regard to a deficient investigation the applicant also alleges the investigator failed to abide by regulations and failed to conduct a thorough review.  The allegations include interviewing too few witnesses (seven), using “hearsay” evidence from XXXX boyfriend, not interviewing the applicant’s wife, and not interviewing sufficient witnesses to challenge XXXX credibility.  The applicant also alleges that a SME on EO should have been consulted, and that not doing so was a “clear violation” of the applicant’s “due process rights.” 

DAF/JA sees no evidence that the investigation violated the applicant’s due process rights.  First, it is unclear whether an EO SME was even required to assist the investigator in this case.  Second, even if an EO SME should have assisted, DAF/JA sees no evidence that it led to any error.  The determination that the applicant challenges is not whether the sexually inappropriate comments or the genitalia exposure in question could be considered an EO violation.  Rather, the applicant disagrees that he committed the misconduct at all.  Hence, the core of the disagreement is with the findings of fact, including assessments of credibility, which could not have been aided by an EO SME.  Furthermore, DAF/JAs review indicates that the investigator’s determinations were reasonable, and DAF/JA defers to them.  DAF/JA also notes that it was the NJP authority who ultimately decided how much of the investigation would shape his deliberative process.  DAF/JA sees no evidence that the NJP authority made an erroneous factual determination based on the allegedly deficient investigation.  After all, if the NJP authority had desired further investigation, he could have requested it. 

Based on a careful review, DAF/JA concludes the commander did not abuse his discretion in administering the NJP, finding the applicant committed the offenses 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, DAF/JA finds no basis to set aside the applicant’s 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 31 Jan 22 for comment      (Exhibit D), and the applicant replied on 21 Feb 22.  In the response, the counsel asks the Board to not adopt the recommendations of DAF/JA because (1) the NJP fact finder made serious errors when assessing the credibility of the two key witnesses, (2) a critical piece of evidence was not considered at the applicants NJP, and (3) the investigation was in violation of Air Force Regulations.

In this regard, the advisory was wrongful in its failure to review the sufficiency of the factual evidence underpinning the NJP.  The veracity of the two witnesses upon which the NJP was entirely founded, and whether the fact finder properly assessed said credibility, is the question which the Board is tasked with reviewing, to determine the existence of error or injustice.  Additionally, the advisory claims that there was no error or injustice when a critical piece of evidence (XXXX statement) was not considered at the applicants NJP, one which was more than capable of substantially shifting the balance of evidence in his favor, is incorrect and should not be adopted.  This ignores the duties charged to the Board to review matters itself to make its own determination as to whether there was error or injustice.  Furthermore, the investigation was in violation of Air Force regulations, because the investigator failed to interview an identified witness, XXXX and failed to follow procedure by not having the assistance of an EO SME.  Moreover, the advisory professes a position that it is the officer administering the NJP which determines the due process rights of an accused individual, not statute or regulation.  The rights of an accused are not up to those overseeing his trial, they are up to the statutes and regulations which grant him his rights.

The Air Force CDI Guide states that investigating officers are under a duty to interview all witnesses named by a complainant or subject, or to document why they did not do so.  The applicant specifically named XXXX as a witness, and the investigating officer failed to interview her.  Had the investigating officer interviewed her, XXXX testimony as to XXXX plans to use EO accusations to get out of job duties, would have been submitted as evidence at the NJP.  The advisory is also wrong in regard to the due process violation which occurred through the failure to appoint an EO SME.  Contrary to what the advisory believes, AFI 36-2706 para 1.19.15 states, “ensures subordinate commanders appoint an EO specialist to serve as subject matter expert on all inquiries/Commander Direct Investigations (CDIs) involving EO related allegations”, and para 1.4.1, makes appointment of an EO SME mandatory.  For the reasons stated above, the Board should not adopt the recommendations of the advisory.  

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 that the applicant waived his right to a court-martial and concurs with DAF/JA, that the applicant’s commander had evidence, including statements gathered from an investigation.  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 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 the 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.

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-2021-03190 in Executive Session on 17 May 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 15 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 26 Dec 22 [sic].
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 31 Jan 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 21 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.