RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00782

XXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

1.   His letter of reprimand (LOR), dated 4 Dec 20 be removed from his record.  

2.   His referral officer performance report (OPR), for the period ending 10 Jan 21 be removed from his record.

APPLICANT’S CONTENTIONS

He received the LOR and OPR for an alleged charge of driving under the influence (DUI).  However, at the time the charges were still pending and the charge of DUI was amended to negligent endangerment, which is a traffic violation.  His leadership did not provide due process and did not wait for the completion of the civilian court process.  Therefore, the LOR and referral OPR were based on incorrect data.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a major (O-4) in the Air Force.  

On 4 Dec 20, the applicant received a LOR for DUI on 24 Nov 20.  He was spotted driving south bound on the north bound side of the interstate.  He was pulled over by a sheriff’s deputy after driving on the wrong side for some distance.  After failing sobriety tests, he was arrested and cited for two misdemeanors: DUI of alcohol and driving with a suspended license.  On 2 Feb 21, his wing commander (WG/CC) determined the LOR would be filed in his officer selection record (OSR).  

The applicant received a referral OPR for the period ending 10 Jan 21.  The OPR states he was removed from command for cause.  He did not exhibit professional conduct or logical decisions when DUI of alcohol and received a LOR.  In his response to the OPR dated 28 Jan 21, he requested the OPR not be a referral as the charges were still pending in civilian court.  He stated his right to a trial should be respected and he requested due process before receiving a career damaging report.  The additional/reviewer noted he reviewed the applicant’s comments and signed the referral OPR on 5 Feb 21.  

The applicant provides sentencing order, dated 16 Nov 21 showing the charge of DUI of alcohol-first offense was amended to negligent endangerment and that he pled guilty to the charge of negligent endangerment.    

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

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial.  The applicant’s commander issued an LOR based on the preponderance of evidence in accordance with AFI 36-2907, Adverse Administrative Actions.  The applicant had three duty days to provide pertinent information.  

In accordance with the National Defense Authorization Act, 10 U.S.C. § 615(a)(3), the LOR meets the requirements of adverse information and was filed in the applicant’s master personnel record group and OSR.  In accordance with DAFPM 2021-3603, adverse information filed in the OSR will remain in the OSR.  

The complete advisory opinion is at Exhibit C.

AFPC/JA recommends denial.  The applicant has failed to prove any material error or injustice to warrant relief.  While the applicant provides evidence the DUI charge was reduced to negligent endangerment, the Air Force is not bound by civilian court decisions.  Furthermore, it is extremely common for civilian prosecutors to negotiate with defendants to accept guilty pleas to lesser offenses, especially when it is a first time offense, as it was for the applicant.  This in no way indicates the applicant did not engage in the misconduct for which he was charged.  A preponderance of the evidence (glassy/bloodshot eyes, smelling of alcohol, driving on the wrong way on a highway for several miles and failing a sobriety test) indicates he in fact was DUI and was arrested for such.  Consequently, it was well within the commander’s authority to issue the LOR and it should not now be deemed incorrect simply because he was permitted by a civilian court to plead guilty to a lesser offense.

By regulation, commanders and supervisors are charged with the responsibility to administratively censure inappropriate or improper behavior in appropriate circumstances.  As stated in AFI 36-2907, paragraph 1.1, adverse administrative actions are intended to improve, correct and instruct subordinates who violated established standards whether on or off duty.  LORs are discretionary in nature and must be supported by a preponderance of the evidence and will not be disturbed unless the evidence is not sufficient and/or the action constituted an abuse of discretion.

The complete advisory opinion is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 11 Apr 22 for comment (Exhibit E), 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 recommendations of AFPC/DP2SSM and AFPC/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant requests removal of the LOR dated 4 Dec 20 and the referral OPR for the period ending 10 Jan 21 asserting they were issued while the charge of DUI was pending and he was not found guilty of DUI.  However, the Board does not find the applicant’s subsequent plea of guilty to a lesser charge of negligent endangerment is evidence the applicant did not engage in misconduct for which he received the LOR and referral OPR.  In this respect, the Board notes the applicant’s driving on the wrong side of the road and failing field sobriety tests endangered the safety of other drivers and himself and violated the expected standards of behavior expected of Air Force officers.  Accordingly, the Board finds the issuance of the LOR and referral OPR were within the discretion and authority of his commander, the applicant was not denied any due process and the unfavorable personnel actions were not unduly harsh or unjust.  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-2022-00782 in Executive Session on 31 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 14 Mar 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 5 Apr 22.
Exhibit D.  Advisory Opinion, AFPC/JA, dated 8 Apr 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 11 Apr 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.