RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00690

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

1.   He receive an impartial review of the evidence in the commander directed investigation (CDI) report of investigation (ROI), dated 21 May 20.

2.   The CDI ROI and the substantiated allegation be removed from his record.  

APPLICANT’S CONTENTIONS

In Oct 18, he was on temporary duty (TDY) for a formal training course.  On 9 Jan 19, the class hosted a mixer at a base club.  He was acting as the host and was able to get three general officers to attend the event.  His major focus was to ensure his classmates were able to meet and interact with the general officers.  On 10 and 11 Jan 19, he and the club manager exchanged texts and there were no indications of any issues.  On 30 Sep 19, the bartender filed an inspector general (IG) complaint regarding working conditions.  Her complaint never mentions the allegation against him, or any events held by his class.  The applicant provides a timeline of events.  

The actual events of 9 Jan 19 do not support the allegation.  He spent the duration of the brief event ensuring the base leadership in attendance were able to meet his younger classmates.  The event, as noted by the club manager, was a great success and without incident.  He was closest to two officers that evening, yet they were not interviewed by the investigating officer (IO).  His area defense counsel (ADC) was able to obtain their testimonies, and both stated nothing had happened.  The sole corroboration for the accuser also lacks credibility.  While the CDI ROI was found legally sufficient, this does not equate to being guilty.  The evidence shows he did not ask anyone to dance for him.  His legal team spent an inordinate amount of time, resources and effort to gather relevant evidence that was never considered.  He provides a list of key contacts.  

On 14 Feb 20, the WG/IG transferred the case to his State ANG IG.  His commander determined to convene a CDI and on 20 Apr 20, an IO was appointed. The CDI into the allegation made by the complainant, a bartender, was conducted during the height of the COVID-19 Pandemic, which made communication and evidence accumulation difficult.  Without in person interviews, the IO was unable to observe demeanor and nonverbals. Further, those interviewed did not have an opportunity to review their statements, nor were the statements signed. Further, key eyewitness were not interviewed and there was no attempt to assess the credibility of the accuser.  The IO even states that not one guest heard him make the inappropriate remarks.  The IO’s interview style was abrasive, biased and sought to substantiate the allegation rather than gather evidence.  
The grammar in the CDI is also atrocious and shows a lack of concern or attention to detail.  He was also denied due process and was not notified of the specific allegation until after the allegation was substantiated. The Adjutant General (TAG) has directed him to submit his request to the AFBCMR.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a lieutenant colonel (O-5) in the Air National Guard.

SAF/IG provides the CDI ROI concerning sexual harassment dated 21 May 20.  Allegation:  From Oct 18 to Feb 19, the applicant sexually harassed [redacted] and [redacted] by asking them to dance on the bar for him after being told it was inappropriate and suggested they would make more money if they did. (SUBSTANTIATED).  The IO interviewed nine students and three club staff members.  The IO discovered the complainant had reported the allegation immediately after it occurred and reported the same account to him. The IO was unable to contact the other complainant; however, she had provided a statement to the WG/IG previously that the applicant had made the comments not once but two additional times during the evening.  Both victims’ stories remained the same over a year later when they had reported it to the IG.  However, not one student had heard the applicant make inappropriate remarks to the bartenders or brag about his comments to the group.  The IO interviewed the applicant who stated he was a social person and interacted with the bartenders periodically; however, he did not believe the conversations crossed any line.  The IO substantiated the allegation per testimony the applicant was “a social and fun guy who made off-color comments when drinking during class socials.” 

SAF/IG also provides the undated complaint memorandum.  The complainant, a non-appropriated fund (NAF) employee addresses issues regarding her pay, tips and hours.  She also expressed concerns regarding the garnishment of her pay due to state tax issues and unfair hiring and promotion practices.  She indicated she felt discriminated and retaliated against.  On 16 Oct 19, she met with the Equal Opportunity (EO) Director regarding the mistreatment, hostile work environment and retaliation.  This complaint does not include the events of the substantiated allegation in the CDI ROI.  

On 6 Jul 20, the State ANG Deputy Staff Judge Advocate (SJA) found the CDI ROI legally sufficient and recommended the appointing authority concur with the IO’s finding of the substantiated allegation.  The IO believed the applicant made the comment to the bartenders and there was enough circumstantial evidence and sufficient testimony to indicate he made the alleged comments.  His classmates also pointed out several instances of similar off-color comments to demonstrate repeated behavior.  Per the SAF/IGQ CDI Guide, a preponderance of the evidence is the standard of proof required to substantiate an allegation in a CDI.  Preponderance of evidence is defined as meaning a fact is more likely true than not. ANGI 36-7, Air National Guard Military Equal Opportunity Program, defines sexual harassment as a form of gender discrimination that involves unwelcomed sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when: (1) Submission to such conduct is made either explicitly or implicitly a term or condition of a person’s job, pay or career; or (2) Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person; and/or (3) Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile or offensive work environment.  The Deputy SJA noted the CDI ROI was poorly written and was not in depth in its analysis as would be desired.  Despite this, the ROI included the necessary facts and the conclusion was supported by the statements, evidence and analysis by the IO.  

On 28 Jul 20, the Appointing Authority, approved the CDI ROI and the legal review regarding the allegation of sexual harassment by the applicant and concurred with the findings and conclusion of the IO.  

On 12 Sep 20, the applicant received a letter of admonishment (LOA), which is filed in his automated records management system (ARMS) record.  It states a CDI substantiated an allegation he sexually harassed two female employees at the base club when he asked them multiple times to dance on the bar after being told it was inappropriate.  The suggestive comments were substantiated by witnesses and a preponderance of the evidence.  Further, statements from classmates revealed several other instances of unprofessional behavior at group gatherings.  His egregious judgment was further exacerbated by the fact he was a sitting squadron commander at the time of the substantiated harassment.  In a response memorandum dated 12 Nov 20, the applicant’s ADC highlighted new evidence and identified shortcomings with the CDI and findings.  The ADC stated the WG/IG investigated the same allegations and unsubstantiated the claim.  After unsubstantiating the allegations, the IG notified the State ANG of the allegations.  In response, an IO was appointed to conduct the CDI.  Based on the ROI, the IO relied heavily on statements obtained by the IG and did not conduct face to face witness interviews due to COVID-19 and did not have witnesses sign sworn statements.  The IO was also unable to interview all of the attendees.  More problematic is that the only other witness to the alleged comments refused to be interviewed or participate in the CDI.  On 9 Jan 21, the applicant’s commander determined the LOA would be maintained and filed in his unfavorable information file (UIF).  The military personnel data system (MilPDS) shows the applicant no longer has a UIF.

The applicant received a referral officer performance report (OPR) for the reporting period 1 Jul 21 to 28 Feb 21.  The reason was for receiving a LOA for the CDI substantiating the allegation of sexual harassment while TDY in Jan 19.  

Per AF Form 1288, Application for Ready Reserve Assignment, dated 12 Feb 21, the applicant applied for an assignment transfer.  The remarks note the applicant received an LOA for sexual harassment and was cleared to continue military service.  

Per Special Order dated 6 Dec 21, by Order of the Secretary of the Air Force, the applicant’s Federal Recognition in the ANG was extended, effective 26 Feb 21, by reason of acceptance of an appointment in another state.

Per Special Order dated 10 Mar 21, the applicant was honorably discharged from the State ANG effective 25 Feb 21 and appointed in the State ANG effective 26 Feb 21.  

On 21 Jan 22, the TAG informed the applicant after a careful consideration of his appeal and in consultation with NGB Legal Counselors, she declined to take any actions with respect to the CDI.  The applicant was advised the appropriate remedy to pursue relief was the AFBCMR.  

The applicant provides a report completed by a private investigation firm dated 7 Mar 22, which includes witness statements. The club manager stated the complainant levied an accusation against the applicant that was one of many she levied in a vendetta against the club and leadership.  Over the previous months, she made complaints about her schedule, tips and working conditions that had no merit. She signed an affidavit stating the accusation against the applicant was initiated nearly a year following his departure from the base.  The timeline casted doubt on the veracity of the complainant and witness claims.    

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

APPLICABLE AUTHORITY/GUIDANCE

DAFPM 2021-36-03, Adverse Information for Total Force Officer Selection Boards, dated 14 Jan 21and Section 502 of the National Defense Authorization Act (NDAA) for Fiscal Year 2020, signed on 20 Dec 19, as codified in 10 U.S.C. § 615(a)(3) requires all adverse information to be filed in an officer’s master personnel records group and OSR for consideration by promotion boards.  The new policy removed the authority for WG/CCs or issuing authorities to direct removal of derogatory data from the OSR effective 1 Mar 20, as previously permissible in AFI 36-2907, Adverse Administrative Actions, and AFI 36-2608, Military Personnel Records.  Adverse information requiring mandatory filing in the officer selection record (OSR) and master personnel records group includes but is not limited to LORs and any substantiated adverse finding or conclusion from an investigation or inquiry.  Only the AFBCMR may remove the adverse information from the officer’s record.  

AFI 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 2.3, The Board is not an investigative body; therefore, the applicant bears the burden of providing evidence of an error or injustice.  However, the Board may, in its discretion, hold a hearing or call for additional evidence or opinions in any case.  

AFI 90-301, Inspector General Complaints Resolution, paragraph 1.43.1.2. The primary purpose of a CDI is to gather, analyze and record relevant information about matters of primary interest to command authorities.  CDIs remain an official record for the command and appointing authority.  

AIR FORCE EVALUATION

The State ANG SJA concurs with the analysis and conclusions of the CDI ROI and agrees the ROI is legally sufficient.  The discrepancies within the ROI are minor and technical in nature.  The IO did not have the witnesses sign their statements, which is strongly encouraged by the SAF/IGQ CDI Guide.  The witnesses provided many examples of the applicant’s comments and behavior, which were included in the ROI and its supporting documentation.  

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 30 Aug 22 for comment (Exhibit F).  In responses dated 15 Sep 22 and 28 Sep 22, the applicant requests the Board consider the CDI and the findings of legal sufficiency were completed before he was advised of the allegation.  He was not afforded the opportunity to provide a response.  The Board should consider that both legal reviews state the CDI was poorly conducted and the ROI poorly written.  There are two sides to every story and only one side was considered in substantiating the allegation.  Simply because a CDI is deemed legally sufficient does not mean the allegation occurred.  

He was only afforded a brief face time interview with the IO due to COVID-19.  Key witnesses were not interviewed, and none were able to corroborate the allegation.  Further fact gathering revealed the allegation did not occur.  Friends and co-workers of the complainant consistently verified the complainant was not credible and had targeted her manager, not him.  

The IO made no determination of credibility of the complainants.  Despite exhaustive efforts, one of the complainants could not be reached and was never interviewed. The club manager repeatedly stated the complainant was not credible.  Sworn testimonies are provided regarding the complainant’s credibility.  The legal review acknowledges the CDI is lacking as evidence was only gathered by phone and email.  The evidence gathered after the CDI was concluded thoughtfully.  

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 the WG/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant requests an independent review of the CDI ROI dated 21 May 20 and remove the substantiated allegation of sexual harassment, for which he received an LOA and referral OPR. However, per AFI 36-2603, the Board is not an investigative body. Nonetheless, the Board reviewed the CDI ROI, the WG/JA legal review dated 6 Jul 20, the applicant’s response memorandum dated 30 Aug 22, the TAG’s decision on 21 Jan 22 to take no action on his appeal of the CDI ROI and the additional evidence submitted by the applicant, to include a private investigation.  While the Board agrees with the applicant there were administrative errors in the CDI ROI, the Board finds the administrative errors insufficient to override the substantiated allegation and finding the CDI ROI was legally sufficient. Accordingly, the Board chooses to not disturb the record in favor of the discretion and judgment of his TDY and home station commanders who were closer to the events and found the applicant committed sexual harassment. 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-2022-00690 in Executive Session on 18 Nov 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 3 Mar 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  CDI ROI, SAF/IGQ, dated 21 May 20 (WITHDRAWN).
Exhibit D:  Memorandum, 140 WG/JA, dated 6 Jul 20.
Exhibit E:	Advisory Opinion, 140 WG/JA, dated 30 Aug 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Sep 22.
Exhibit G:	Applicant’s Response, w/atchs, dated 15 Sep 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.