RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00007

XXXXXXXXXXXXXX	COUNSEL: NONE		 

  	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

1.   His Article 15 dated 15 Sep 21 be set aside.  

2.   His rank of master sergeant (E-7), with previous date of rank (DOR) of 1 Feb 17 be restored.  

APPLICANT’S CONTENTIONS

On 15 Sep 21, his commander offered him an Article 15 for fraternization.  He was reduced to technical sergeant (E-6), with a new DOR of 27 Sep 21.  The commander directed investigation (CDI), dated 15 Jun 21 found he had engaged in unprofessional relationships and was the basis for the nonjudicial punishment (NJP).  The evidence was not beyond a reasonable doubt to support the charges in accordance with AFI 51-202, Nonjudicial Punishment.  The Article 15 also does not meet the elements of Article 134 (Fraternization) as he is not a commissioned officer.

An investigation in 2019 resulted in finding the allegations unsubstantiated.  The investigation focused on three airmen and one alleged wrongdoing.  The allegation was made after she had seen her enlisted performance report (EPR).  The other airman stated she was lying in order to get him in trouble.  There was no evidence presented to the investigators to substantiate the investigation in 2019.

In May 2021, he was called into the vice wing commander’s (WG/CV) office at his new base.  He was told his last base was opening another CDI into allegations of an unprofessional relationship back to 2018, the allegations that were unsubstantiated in 2019.  The complainant (master sergeant) used her position as a temporary first sergeant to start another investigation.  During his two years, at his assignment, he was repeatedly harassed due to constant rumors by the master sergeant after he denied her sexual advances.  She also formed a clique with a technical sergeant to perpetuate the lies, file false IG reports and make false statements in an effort to bring him down.  

In Jun 21, he was informed the re-investigation was concluded and the allegations substantiated.  The CDI was based on hearsay.  He did not commit the alleged accusations.  He was issued an Article 15 in Sep 21 with one charge of Article 92, UCMJ violation for dereliction of duty for creating an appearance of an unprofessional relationship and three Article 134, UCMJ violations for fraternization.  He was relieved of his position as superintendent and demoted to the rank of technical sergeant.  On 13 Oct 21, his appeal of the Article 15 was denied.  

The timeliness and the severity of the actions are not in accordance with AFI 51-202.  The alleged offense happened in 2018, it was investigated in 2019 and found unsubstantiated.  Then reinvestigated again in 2021 and substantiated.  He had no disciplinary action in his career prior to the Article 15.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a technical sergeant (E-6) in the Air Force.  

AF Form 3070, Record of Nonjudicial Punishment Proceedings (TSgt thru CMSgt), dated 15 Sep 21, shows the applicant was reduced to the rank of technical sergeant with a 27 Sep 21 DOR and reprimanded for the following:

a.	Fraternization with the named airman first class (E-3) from 1 Mar 18 to 31 Dec 18 and engaging in sexual intercourse with the airman first class, an enlisted subordinate who he supervised.

b.	Fraternization with another named airman first class from 1 May 18 to 31 May 18 and engaging in sexual intercourse with the airman first class, an enlisted subordinate who he supervised.

c.	He was derelict in the performance of his duties from 1 Dec 19 to 31 Mar 20 in that he willfully failed to refrain from creating the appearance of an unprofessional relationship with another named airman first class.  

On 22 Sep 21, the applicant signed a waiver of statute of limitations in accordance with Manual for Courts-Martial, Part V, which states NJP may not be imposed for offenses committed more than two years before the date of imposition.  He knowingly and voluntarily submitted the waiver for the charged misconduct occurring from 1 Mar 18 to 31 Mar 20 contained in the AF Form 3070B dated 15 Sep 21.  

The applicant is approved for retirement effective 1 Jun 22 in the grade of technical sergeant, with highest held grade (HHG) master sergeant.  

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 denial.  The commander did not abuse his discretion in administering the NJP, finding the applicant committed the offenses as alleged, or imposing punishment.  The substantiated CDI presented to the commander could reasonably have led to his conclusions.  The punishment imposed was within the permissible range for the offense and 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, which he opted against.

Regarding the Article 134 violations not charged under the established Article 134 (Fraternization), commonly used for violations by commissioned officers; because the applicant was not an officer, the Article 134 was a novel charge based on the customs of the Air Force that noncommissioned officers shall not fraternize with subordinate enlisted members on terms of military equality such that it would be prejudicial to good order and discipline.  The applicant has submitted no evidence, nor did DAF/JA find any, showing that the legislative history of Article 92, UCMJ indicated that Congress intended for offenses similar to those at issue to only be punishable under Article 92 to the exclusion of Article 134.  Therefore, DAF/JA finds the three “fraternization” crimes properly charged under Article 134.  

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 4 Mar 22 for comment (Exhibit D), and the applicant replied on 11 Mar 22.  In his response, the applicant disagreed the fraternization offenses were properly charged under Article 134.  Since fraternization was not the conduct found during the investigation, nor the conduct that was substantiated, Article 92 should apply to the offense.  During his extensive research, he cannot find another case where an enlisted member was charged with Article 134 over Article 92 as it pertains to unprofessional relationships.  There is no custom in the Air Force that noncommissioned officers shall not fraternize with subordinate enlisted members on terms of military equality.  Therefore, the Article 134 charges should be null and void.  His referral EPR also specifically states he was charged with fraternization and not the novel charge as indicated in the advisory.  

He also provides statements from the previous CDI dated 2019 which determined the allegation to not be substantiated by a security forces squadron (SFS) investigation.  This investigation is in close proximity to when the events were alleged to have occurred.

During the Jun 21 CDI, a medical group (MDG) chief master sergeant not trained in investigations determined his statements were not credible and substantiated the allegation of unprofessional relationships.  The investigation having been three years after the alleged conduct gave him little to no chance in proving his innocence.  There was no direct evidenced included in the CDI, only hearsay and rumors.  The evidence is factually and legally insufficient to support the substantiated CDI.  

An accusation must be considered unsubstantiated if there is insufficient evidence to determine whether the allegation is true or false.  Not one of the junior enlisted airmen could provide a message or phone call to justify their false accusations.  Their changed sworn statements and multiple disciplinary problems were never taken into account by his leadership.  The investigation was biased.  Punishing someone based on words alone is a dangerous precedent.  There were two separate investigations, with two separate outcomes.  The allegations were proven to not have occurred in 2019 and four years later he is expected to again prove his innocence.

He very well could have demanded a court martial but his area defense counsel (ADC) advised he could not be charged with fraternization; therefore he went with the lesser of two evils.  The false allegations against him should be thrown out.  

The applicant’s complete response, with attachments, 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.  The Board concludes the applicant’s commander did not abuse his discretion in administering the NJP.  The demotion to technical sergeant was in the permissible range and was not unduly harsh for the applicant’s misconduct.  The Board finds the applicant’s contention he as an enlisted member cannot be guilty of fraternization is without merit.  The evidence shows the applicant engaged in sexual intercourse and failed to refrain from creating an appearance of an unprofessional relationship with subordinate airmen who he supervised.  Further, the applicant contends the reinvestigation in 2021 for the same allegations that were unsubstantiated in 2019 resulted in an injustice and the NJP was unjust.  However, it appears there was evidence not previously considered in the earlier investigation and the Board notes the applicant on 22 Sep 21 signed a waiver of statute of limitations in accordance with the MCM.   The applicant also states the reinvestigation was biased against him and the complainants could not provide any evidence to prove the false official statements; however, he has provided no evidence to sustain he did not commit the misconduct for which he received the NJP.  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-2022-00007 in Executive Session on 21 Apr 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 Dec 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 4 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 4 Mar 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 11 Mar 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.