RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00787

XXXXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His letter of reprimand (LOR), dated 29 Mar 21 be removed from his personnel records display application, officer selection record (OSR) and unfavorable information file (UIF).  

APPLICANT’S CONTENTIONS

He provides a memorandum signed by his current wing commander (WG/CC) for the rescission of the LOR, dated 30 Oct 21.  The Board of Inquiry (BOI) determined the allegations in the LOR were not supported by a preponderance of the evidence.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a captain (O-3) in the Air Force.

The applicant received a LOR dated 29 Mar 21.  The LOR states an investigation disclosed on 28 Aug 20, he engaged in a series of harassing and assaultive behaviors against [redacted], an instructor at his course, while at a bar and on temporary duty (TDY).  Throughout the night, he repeatedly and persistently pursued her, made inappropriate comments and touched her repeatedly.  He consumed several alcoholic drinks and made comments about her breasts, despite her request that he desist.  The applicant’s misconduct constituted violations of AFI 36-2710, Equal Opportunity Program, Military and Civilian, Article 120, Uniform Code of Military Justice (UCMJ), Abusive Sexual Contact, and Article 128, UCMJ, Assault and Battery, and Article 134, UCMJ, Drunk and Disorderly Conduct.  The LOR stated an UIF would be established and the LOR would be placed in his OSR.  In a response dated 7 Apr 21, the applicant stated nothing in the investigation corroborated the alleged offense and slanderous attacks.  The applicant also noted he was denied due process and not given an opportunity to defend himself through a trial by court-martial.  Despite the complainant’s desire to no longer participate in legal actions against him, the legal efforts against him continued.  His commander offered him nonjudicial punishment (NJP) for the offense contained in the LOR and in response he requested a trial by court-martial because he was innocent.  

The applicant provides a memorandum from his current wing commander (WG/CC) dated 30 Oct 21, which states the allegations of touching the alleged victim was referred to a BOI to determine whether the allegations were supported by a preponderance of the evidence and if the applicant should be discharged as a result.  In addition to hearing evidence in the report of investigation (ROI), the BOI heard testimony from several witnesses who were present the night in question.  The three member BOI panel found the allegations were not supported by a preponderance of the evidence and accordingly there was no basis for discharge.  In light of the BOI findings, his WG/CC granted the applicant’s request the LOR issued by his predecessor be rescinded. 

The military personnel data system (MilPDS) reflects the applicant has an approved projected retirement effective 1 Oct 23.  The MilPDS also shows the applicant currently does not have an UIF.  

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

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 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.  

AIR FORCE EVALUATION

AFPC/DP2SSM recommends granting the request.  In accordance with AFI 36-2907, dated 22 May 20, (Interim Change 15 Jan 21) paragraph 3.4.3.1, the member’s current wing commander (or equivalent), imposing or issuing authority, whichever is higher, may direct removal of derogatory data from the OSR at any time.  The current wing commander provided a memorandum to support rescission of the LOR.  Should the Board grant relief, AFPC/DP2SSM would remove the LOR from the ARMS.  

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 Apr 22 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 the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and finds a preponderance of the evidence substantiates the applicant’s contentions.  The Board notes per 10 U.S.C. § 615(a)(3), effective 1 Mar 20, the WG/CC no longer has the authority to remove the LOR from the applicant’s records. However, the Board finds the applicant’s WG/CC memorandum dated 30 Oct 21 rescinding the LOR and the BOI determination the allegations were not supported by a preponderance of the evidence sufficient to warrant removal of the LOR from the applicant’s records.  The applicant also requests his UIF be removed; however, the MilPDS shows there is no UIF to remove.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

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 pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show the LOR, dated 29 Mar 21 be removed from his records.  

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-2022-00787 in Executive Session on 17 May 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 4 Mar 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 5 Apr 22.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 8 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.