RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-01547

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX 

  	HEARING REQUESTED: YES  

APPLICANT’S REQUEST

1.  His Article 15, dated 9 Apr 20 be removed from his records.  

2.  His referral enlisted performance report (EPR) for the reporting period ending 31 Jan 21 and his EPR ending 31 Jan 22 be corrected.  

3.  His rank of technical sergeant (E-6) be reinstated, with date of rank (DOR) of 1 Jun 19.

4.  He receive retroactive back pay and allowances for his rank of technical sergeant from 17 Apr 20.

5.  He be promoted to the rank of master sergeant (E-7), with DOR of 1 Jun 21.

APPLICANT’S CONTENTIONS

He received an Article 15 for obstructing justice by advising a subordinate to invoke their Article 31 rights.  However, established case law requires a “corrupt motive” for obstructing justice.  There is no evidence he had anything to gain by giving honest advice to a subordinate to not incriminate himself and to exercise their rights.  There was also no dereliction of duty.  He was subjected to ridicule and harassment from his leadership as he made attempts to rectify the injustice.  The Article 15 was issued in retaliation and malice.  He continued to perform at the highest levels.  He would have been eligible for promotion to master sergeant in 2021 and 2022, if not for the demotion.  He provides character statements in his behalf.  

Counsel states the NJP is not based on proper law, creates an unrealistic duty and is fundamentally unfair and unjust.  Although the NJP alleges he told [redacted] to deny using drugs, the provided text messages tell a different story.  As stated, [redacted] only asked him if he could deny it.  The applicant responded that he could, which did not infer guilt or innocence and then he advised [redacted] to speak with a lawyer.  Following the NJP, he took every step to appeal the NJP, injustice and misapplication of the law.  His leadership then subjected him to personal ridicule and harassment.  His unit never intended to treat him fairly or with dignity and respect.  The applicant did not violate Article 131b, Uniform Code of Military Justice (UCMJ) by advising the applicant to speak with legal counsel before speaking with anyone regarding a potential investigation.  The applicant also did not act with any intent to influence, impede or obstruct justice.  There is no evidence he acted or advised anyone with a “corrupt motive” by encouraging a witness to invoke their Constitutional rights against self-incrimination.  

The NJP for violating AFH 36-2618, The Enlisted Force Structure, is an injustice because the alleged offense is void for vagueness and is arbitrarily applied.  He is being punished for the misconduct of others without any allegation for acting as a co-conspirator, or accomplice but that he negligently failed to identify the misconduct of others.  Additionally, attending a single party does not result in an inappropriate relationship. AFI 36-2909, Air Force Professional Relationships and Conduct, acknowledges leeway as to whether a relationship moves from professional to unprofessional and states, “The rules regarding personal relationships must be somewhat elastic to accommodate differing conditions and operational necessities.  The underlying standard is that members are expected to avoid relationships that negatively affect morale, good order and discipline, respect for authority and unit cohesion. The Article 15 only alleges he attended one party but does not state how attending the party resulted in any negative effects on morale, good order and discipline, respect for authority, and unit cohesion.  Merely making a social appearance at a party does not do any of these things.  Barring any additional evidence, he should not have been found guilty of violating AFI 36-2909.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a staff sergeant (E-5) in the Air Force.  

AF Form 3070B, Record of Nonjudicial Punishment Proceedings (TSgt thru CMSgt), dated 9 Apr 20, shows the applicant received an Article 15.  Punishment included reduction in rank to staff sergeant, with new date of rank (DOR) of 17 Apr 20, forfeiture of $1,653 in pay for two months, suspended through 16 Oct 20.  The violations include the following: 

a.	 On 16 Mar 20, he wrongfully communicated with [redacted] that he should deny ever using drugs if questioned by the Office of Special Investigations (OSI), with intent to obstruct due administration of justice in the case of [redacted], whom he had reason to believe criminal disciplinary proceedings were pending.  

b.	Between 1 Sep 19 and 29 Feb 20, the applicant was derelict in the performance of his duties in that he negligently failed to identify those exhibiting high-risk behaviors.  He did not intervene and deter further unsafe practices or detect and correct conduct and behavior that placed him and others at risk per AFH 36-2618.  The applicant did not intervene, deter or correct marijuana use by [redacted] and [redacted] and underage consumption of alcohol by [redacted].

c.	Between 19 Feb 19 and 19 Mar 20, he was derelict in the performance of his duties by negligently failing to maintain professional relationships with three airmen in the rank of airman first class (E-3), as required by AFI 36-2909, by attending a social, non-duty related party at the on-base residence of one of them.  

In his response dated 14 Apr 20, he states he communicated with [redacted] that he may deny allegations should he be accused of any wrongdoing.  The intent was to inform him of his rights, not to obstruct justice.  At the time, he did not know [redacted] had participated in drug activity.  He also had absolutely no knowledge or familiarity with any underage consumption of [redacted].  He does not recall him drinking at any social function he attended.  With respect to failure to maintain professional relationships.  At the time, none of the individuals were under his supervision, in his section or squadron.  On 9 Mar 20, he reported [redacted] for suspected marijuana use.  As his work center supervisor, he picked him up from the sheriff’s office after he was suspected of being under the influence of marijuana.  He gave all the information to the first sergeant and OSI and assisted security forces with the investigation. He would have never done anything to hinder his own integrity or the integrity of the Air Force.  He was selected to manage the wing base honor guard program due to his accomplishments.  He turned the flight around and was named the noncommissioned officer (NCO) of the quarter.  He led 38 airmen across a 10-month tenure, managing over 350 military funeral honors and other details. On 17 Apr 20, the applicant made a personal appearance in front of his squadron commander to appeal the NJP.   

On 30 Apr 20, the applicant went to the wing inspector general (WG/IG) office.  The WG/IG informed him his type of case should be fielded by the area defense counsel (ADC).  However, they would not look into the case for him.  

In an email on 11 May 20, the WG/IG informed him they did not feel referring his case to a higher level was warranted and recommended the applicant reengage with another ADC.  The applicant noted the ADC was representing other individuals included in the charges and could not represent him.  He stated he did not receive proper legal advisement necessary to make an informed decision.  

AF Form 102, Inspector General Complaint Form, dated 22 Jul 20, shows the applicant filed an IG complaint naming his SQ/CC for unfair treatment.  He requested removal of his Article 15, reinstatement of his permanent change of station (PCS) assignment and to work for someone other than his current SQ/CC.  The applicant alleged his SQ/CC showed favoritism, he was cursed at by the first sergeant and his assignment was canceled in an effort to further punish him.  He was also ridiculed for being feminine in staff meetings and it was eluded he may be gay.  The comments were made in front of his peers and fellow squadron members.  His leadership also made comments about his demotion in a joking and disparaging way.  They targeted him with verbal assaults behind his back and there was no way he could be given fair and objective consideration.  When he went to see mental health on his own, they responded they had heard some of the things he had been going through, although they would not have had any knowledge.  Further, every individual in his unit was presented their decorations in full grandeur; however, the Air Force Achievement Medal (AFAM) and Air Force Commendation Medal (AFCM) he earned at his last assignment were handed to him in a blue folder by a civilian.  He was told the commander refused to present the decorations because of a “missing signature;” however, the decorations were signed, updated in the military personnel data system (MilPDS) and are in his records.  On 24 Jun 20, the squadron leadership conducted three commanders’ calls, one for each tier.  He recorded the commander’s call which included how they approached his case.  The applicant listed nine individuals as witnesses.  

In response to the applicant’s IG complaint, the mission support group commander (MSG/CC) in a memorandum dated 19 Oct 20, informed the applicant he was aware of the issues surrounding the climate and culture, along with unequal treatment in the applicant’s unit.  He spoke with the SQ/CC about the issues and directed him to develop a plan to improve the unit with regards to professionalism, communication, culture and climate. They were working with the squadron to improve the environment, health, safety, welfare and morale.  The MSG/CC thanked the applicant for bringing the concerns to their attention and wanted unit members to feel respected and heard.  With respect to the removal of the Article 15, the MSG/CC stated he believed the commander’s decision to issue the Article 15 was based on his decision to maintain good order and discipline within the squadron.  Further, the cancelation of the assignment was not done in bad faith but they were executing the guidance in AFI 36-2110, Total Force Assignments, which stated airmen serving Article 15 punishment would not PCS.

On 14 Dec 20, the applicant requested the major command IG (MAJCOM/IG) review his IG complaint.  The applicant stated he felt his complaint was mishandled by his wing IG.  The applicant named his SQ/CC, superintendent and first sergeant in his complaint.  He stated their unfair treatment and derogatory and demoralizing comments were unjust and unequal, violating Equal Opportunity (EO).  Their treatment caused him to seek professional counseling.  Ever since arriving at the squadron, his SQ/CC had it out for him.  He was bullied, talked about behind his back.  In his Article 15, he was charged with an unprofessional relationship by attending a single social event (within a 13-month period) with three airmen.  It was not mentioned that squadron leadership permitted him to share an apartment with a senior airman (E-4).  He named nine other NCOs who lived with airmen outside of work.  However, he was the only one charged with an unprofessional relationship.  The largest part of his Article 15 was that he allegedly did not report two individuals for marijuana use. He had no reason to suspect either were using marijuana and had no substantiating evidence to report it. There was no obstruction of justice.  As a flight chief and NCO, he cannot always keep his airmen from engaging in illicit activities.  It is an unfortunate truth that some will fail to assimilate to the Air Force culture.  He was singled out and targeted by the squadron leadership.  

On 26 Jan 21, the MAJCOM IG responded to the applicant.  Based on an analysis of his concerns using AFI 90-301, Inspector General Complaints and Resolution Chapter 3, they responded as follows:

a.	Unfair and unjust treatment by squadron leadership.  Since the MSG/CC conducted an inquiry, the IG recommended the applicant appeal the results of the MSG/CC’s inquiry to the next higher level commander, the wing commander (WG/CC).  

b.	Inadequate legal counsel.  The Air Force Legislative Congressional Correspondence Division actively worked to address the issues on his behalf.  If he was still dissatisfied with the ADC support, he should contact the Air Force Legal Operations Agency Appellate (AFLOA) Defense Division.  

c.	The WG/IG mishandled his previous complaints (FRNO 2020-10571 and 2020-12250). The WG/IG directed the applicant to his ADC in FRNO 2020-10571 since the complaint pertained to his Article 15 and Article 31 rights and did not fall under the IG purview.  His complaint, FRNO 2020-12250, pertained to command issues and the complaint was referred to the next higher commander (MSG/CC) for inquiry and disposition in accordance with AFI 90-301.  After review, it was concluded the WG/IG did their due diligence in their analysis of both complaints and provided the most appropriate resolution for each complaint.  Therefore, they were unable to pursue the matters any further.  

The applicant received a referral EPR for the reporting period ending 31 Jan 21 for receipt of NJP for violation of UCMJ Articles 131b and 92.  

The applicant received an “Exceed most, if not all expectations” rating and a “Promote” recommendation for his EPR for the reporting period ending 31 Jan 22.  

On 28 May 21, the applicant requested the WG/CC approve a formal military equal opportunity (MEO) investigation, in accordance with DODI 1020.03, Harassment Prevention and Response in the Armed Forces, and AFI 36-2710, Equal Opportunity Program.   He was made aware of comments by his SQ/CC and first sergeant about his demotion, sexuality and perceived “femininity.”  He reported it to the IG and was informed this portion of his complaint should be addressed by the EO office.  He had no reason to believe his complaint had not been forwarded.  While the MSG/CC’s response stated he sought counsel from multiple agencies, a proper EO investigation was never conducted.  He provided witnesses who were willing to make statements, but none were ever contacted.  He requested the WG/CC waive the 60 day timeline to file a formal MEO complaint and that his complaint be properly investigated.  

On 6 May 21, the SQ/CC notified the applicant an incident report was required to be reported to the DoD CAF in accordance with DODM CAF 5200.02, Procedures for the DOD Personnel Security Program, and AFMAN 16-1405, Air Force Personnel Security Program, because of his alleged actions of conduct and or behavior involving failure to obey an order or regulation.  The DOD CAF would make the final security determination concerning his security clearance.  The military personnel data system (MilPDS) reflects the applicant has a current secret clearance, investigation complete 11 Apr 17.  

In a response dated 28 Jul 21, the applicant states the memorandum regarding his security clearance was over a year late and another example of the carelessness and erroneous behavior of the SQ/CC and the first sergeant.   

On 8 Jun 21, the applicant requested the WG/CC for review and disposition of his IG complaint per instruction of the WG and MAJCOM IGs and his Congressman.  

On 16 Jul 21, his WG/CC responded to his Congressman stating the applicant submitted a written request on 28 May 21 for a waiver in accordance with AFI 36-2710, Equal Opportunity Program, permitting the WG EO office to accept his formal complaint, despite it coming approximately a year after the alleged incident, making it 10 months past the 60 calendar day deadline.  The WG/CC stated he reviewed the complaint and determined the alleged misconduct did not meet the definition of sexual harassment or bullying in violation of 10 U.S.C. § 1561, DODI 1020.03, Harassment Prevention and Response in the Armed Forces, and/or AFI 36-2710.  The complaint was not evaluated on a basis of discrimination as the applicant did not articulate an allegation based on an identified protected class and he determined not to grant a waiver to the 60 calendar day timeline.  He was also satisfied with the MSG/CC’s disposition of his complaint and elected not to take further action.  The applicant was notified on 9 Jul 21 of the decision to deny his request to submit a formal MEO complaint.  

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

APPLICABLE AUTHORITY/GUIDANCE

AFI 90-301, Table 3.11., Inspector General Complaints and Resolution, When to Refer a Complaint, Rule 2.  If the complaint is a command issue, refer the complaint and the referral completion report to the appropriate commander.  

AFI 36-2909, Air Force Professional Relationships, Paragraph 2.2., Relationships are unprofessional, whether pursued on or off duty, when the relationship detracts from the authority of superiors or results in or reasonably creates the appearance of favoritism, misuse of office or position, or the abandonment of organization goals for personal interests.  

AFI 36-2909, Air Force Professional Relationships, Paragraph 2.3.5., While an occasional round of golf, game of basketball or similar activity between a supervisor and a subordinate could constitute a professional relationship, daily or weekly activities could result in the perception of an unprofessional relationship.  

DAFI 36-2710, Equal Opportunity Program, paragraph 4.2.3, Timely Reporting.  There is no time limit for filing military informal equal opportunity complaints and no requirement for commander approval before accepting informal complaints older than 60 calendar days.  If an informal complaint is filed more than 60 calendar days after the alleged offense, the Installation Equal Opportunity Office must brief the complainant during the initial interview that in order to file a formal complaint, the installation commander must agree to waive the limits for the formal complaint for good cause.  Allegations of bullying or hazing from a series of events that are beyond the 60 calendar day timeline will not require a waiver as long as the most recent allegation is reported within 60 calendar days.  

AIR FORCE EVALUATION

DAF/JA recommends denial.  The commander did not commit any errors or abuse his discretion in administering the NJP.  After the advice provided by counsel, the applicant could have refused NJP and demanded a trial, which he opted against.  The punishment imposed was within the permissible range for the applicant’s offense.  

The applicant’s misconduct was uncovered during the course of an investigation by the OSI into drug related offenses.  The target of the investigation was a third party airman who was alleged to be sharing an off base residence with the applicant.  DAF/JA concludes there was sufficient evidence for the SQ/CC to find misconduct.  The NJP was not unreasonable and did not rise to the level of an error.  While the applicant challenges the SQ/CC’s findings, the BCMR is not the forum to re-litigate the case.  DAF/JA finds the text messages, witness statements or evidence from the OSI investigation informed the SQ/CC’s decision to reasonably support his findings, in fact or in the aggregate.  There is no merit in the applicant’s arguments about the lack of duty and his definition of obstruction.  Contrary to his argument he had nothing to gain and lacked “corrupt motive,” DAF/JA finds the applicant did have a motive, at a minimum, not to be implicated in his friend’s drug crimes.  DAF/JA also finds no evidence of malice or retaliation.  The applicant appealed the NJP and both the wing and numbered air force staff judge advocates found no irregularities and DAF/JA concurs.  The applicant also argues the NJP should be set aside because of subsequent good conduct.  However, such performance is insufficient for the BCMR to overturn the SQ/CC’s findings and punishment.  

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 16 Aug 22 for comment (Exhibit D), and the applicant replied on 12 Sep 22.  Counsel contends the applicant should be granted clemency.  The advisory opinion states the nature of the applicant’s misconduct warrants denying relief.  However, the alleged misconduct is minor and the obstruction of justice charge is clearly unlawful.  Contrary to the advisory, he lacked the “corrupt motive” required for an obstruction crime.  He had nothing to gain by providing frank advice to a subordinate to not incriminate oneself.  The applicant provided ample case law providing what constitutes a “corrupt motive.”  There is no evidence he had any involvement in the use of illegal drugs.   There is a clear error in the legal sufficiency of his NJP.  Just because the applicant’s appeal received a legal review does not mean the legal reviews were accurate.  

It is clear the applicant was used as a scapegoat for the misconduct of others, and his chain of command maltreated him after he made efforts to clear his name.  

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant did not exhaust 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.  Counsel contends the NJP was unjust, there was no evidence of a corrupt motive, and the applicant was punished for the misconduct of others.  However, insufficient evidence has been presented to sustain the burden of proof to warrant granting any of the requested relief.  Based on the presumption of regularity and the OSI investigation, the Board finds the commander had sufficient evidence to warrant offering the applicant an Article 15. Moreover, the Board finds the punishment was not unduly harsh or disproportionate and note two levels of legal review found the Article 15 legally sufficient.  With respect to the applicant’s IG, EO and Congressional complaints, the Boards finds his complaints were properly considered and adjudged.  In this respect, the applicant on 22 Jul 20, filed an IG complaint alleging unfair treatment against his commander.  In accordance with AFI 90-301, the IG referred the applicant’s complaint to the MSG/CC, the next higher commander, for review and action.  In a memorandum dated 19 Oct 20, the MSG/CC informed the applicant he was aware of the climate, culture and unequal treatment issues in the applicant’s unit and was working with the unit commander to develop a plan to improve the unit. While the MSG/CC acknowledged there were issues in the unit, the MSG/CC concluded the commander’s decision to issue the applicant the Article 15 was to maintain good order and discipline based on the applicant’s misconduct.  Additionally, the applicant’s assignment was canceled in accordance with regulations.  The applicant then appealed the decision to the MAJCOM/IG and the WG/CC and filed MEO and Congressional Complaints, which were subsequently denied. The Board conducted its own independent review of the applicant’s complaints.  The Board understands the applicant was not himself identified as having used marijuana; however, there is sufficient evidence to show he failed to carry out his responsibilities as an NCO by failing to identify, intervene, deter or correct behavior, in violation of Air Force standards and expectations of NCOs.  The applicant also contends he was unfairly treated, singled out and harassed; however, the Board finds insufficient evidence to substantiate the applicant’s contentions.  The Board also finds no basis to mitigate or set aside the punishment on the basis of clemency. 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-2022-01547 in Executive Session on 20 Oct 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 18 May 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 15 Aug 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 16 Aug 22.
Exhibit E:	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.