RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-01934

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES 

APPLICANT’S REQUEST

1.  His letter of reprimand (LOR), dated 16 Dec 20 be removed from his record.

2.  The three “Substantiated” allegations in the commander directed investigation (CDI) report of investigation (ROI) dated 7 Dec 20 be changed to “Not Substantiated.”

APPLICANT’S CONTENTIONS

The preponderance of the evidence shows it was an error for him to be punished for command and medical officials’ failure to comply with their own regulations.  The governing Air Force and Army regulations clearly convey he be told specific dates and times he was required to isolate due to a positive COVID-19 test.  However, the air base wing commander (ABW/CC) and medical officials outsourced the responsibility to him to make the determination.  While he apologized for going to the swimming pool after testing positive for COVID-19, he did not concede he was in violation of any order or duty by being there.  

The lack of proof of an order or duty to isolate is fatal to all three substantiated allegations in the CDI.  No matter how remorseful he was in his statement to the investigating officer (IO) or in his response to the LOR, the command produced no isolation order.  It is an error to substantiate the CDI allegations and issue a reprimand without identifying the order he is accused of violating.  

On 16 Dec 20, his ABW/CC issued him a LOR for being at the swimming pool after receiving a positive result from a COVID-19 test.  The ABW/CC policy memorandum dated 11 Jul 20, in effect on 23 Oct 20, when he tested positive tells base members who test positive for COVID-19 that their timeline for completing isolation starts when symptoms first appear and not when the member tests positive.  Nonetheless, the IO never attempted to determine when his symptoms first appeared nor the IO attempt to calculate his isolation period.  It is unjust to refuse to notify him of the isolation period he should defend himself against.  The absurdity of guessing the isolation period came to a head in his referral officer performance report (OPR) rebuttal.  

The IO attempts in the CDI to use the DD Form 689, Individual Sick Slip, to communicate isolation requirements.  The governing regulation, AR 40-66, Medical Record and Healthcare Documentation, requires the medical officer using the form to state in the Remarks section the duration of quarters in number of hours.  The IO included two sick slips in the ROI that were made out to no one.  Neither sick slip included quarters dates and times.  

In the denial of his Article 138 complaint, the major command commander (MAJCOM/CC) stated he was at a public pool within the 10 day isolation period but did not state what the isolation period was.  It is unjust to require him to defend against three allegations involving an isolation period without telling him the alleged isolation period.  He also stated in his LOR response he did not have obvious reminders that he was infected with COVID-19 on 23 Oct 20 since he was asymptomatic.  A reasonable explanation was that he was no longer infected with COVID-19.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

Per the COVID-19 Screening Questionnaire dated 19 Oct 20, the applicant reported to the medical treatment facility (MTF) COVID-19 testing site indicating he had experienced body aches for four to five days.  The Chronological Record of Medical Care dated 20 Oct 20, shows the applicant was contacted and informed of the positive COVID-19 test result.  He was instructed to remain under home quarantine until 24 hours passed since symptoms resolved and at least 10 days passed since the onset of symptoms.  

In an email dated 2 Nov 20, the officer in charge (OIC) of the COVID-19 testing site emailed the applicant’s OIC stating she had a public health concern about the applicant’s negligence to follow the isolation guidance he was given as he and his family were seen at the base community pool on 23 Oct 20, while they were supposed to be in isolation.  The email stated the applicant was given a quarter’s slip to isolate and the Center for Disease Control (CDC) paperwork for isolation.  Isolation was again reviewed with him in the follow up phone call to notify him of his test results.  

SAF/IG provides CDI ROI dated 7 Dec 20.  On 17 Nov 20, an IO was appointed to conduct a CDI concerning the applicant’s potential violation of an order, dereliction of duty and conduct unbecoming for failure to isolate following a positive COVID-19 test as directed.  The IO investigated the following three allegations:

	Allegation 1.  On or about 23 Oct 20, the applicant was derelict in the performance of his duties in that he willfully failed to remain isolated after receiving positive results from a COVID-19 test as he was directed. (SUBSTANTIATED).  On 19 Oct 20, the applicant was ordered on multiple occasions that COVID-19 symptoms and anyone testing positive for COVID-19 must isolate.  On 20 Oct 20, the applicant was informed of being positive and again ordered to isolate.  It was a clear order and if not acknowledged as an order would have been assumed that any prudent military officer would isolate anyway to safeguard military readiness and the community.  

	Allegation 2. On or about 23 Oct 20, the applicant having knowledge of a lawful order issued by the OIC of the MTF COVID testing site to isolate, failed to obey by wrongfully being present at a local swimming pool. (SUBSTANTIATED).  

	Allegation 3.  On or about 23 Oct 20, the applicant failed to remain in isolation as directed, following a positive COVID-19 test, increasing the opportunity for community spread of COVID-19 by being present at a local swimming pool, and under the circumstances, such behavior constituted conduct unbecoming an officer and gentleman. (SUBSTANTIATED).  

On 16 Dec 20, the applicant received a LOR.  An investigation disclosed on or about 23 Oct 20 he willfully failed to isolate after receiving positive results from a COVID-19 test.  Specifically, he was observed at the base swimming pool with his family after testing positive for COVID-19 and being given instructions to isolate.  In his rebuttal dated 20 Dec 20, he stated he was sorry because he should have known better.  He should have sought clarification on isolation guidance after testing positive.  Since he was asymptomatic (except for sense of smell), he did not have any reminders he was infected and was putting others at risk.  While the IO stated in the CDI ROI he violated an order, at no time did he believe himself to be under an order.  There were no statements he was ordered into isolation.  His status would have been clarified if he had been provided an order.  He apologized he did not perceive the information given to him as an order.  He should have known better and regrets he did not realize it until it was too late.  The COVID-19 Screening Questionnaire included in the CDI was never received by him.  It was completed by someone from the MTF.  The ROI claims he filled out the screening questionnaire but that is not accurate.  He asked that the single mistake be taken into consideration.  He was also forthright when confronted at the pool, complied when told to leave and was cooperative with the IO during the investigation.  

The applicant received a referral OPR for the period ending 28 Jan 21.  The OPR stated he was removed from duty, failed to isolate after receiving a positive COVID-19 test result as required and received a LOR.  In his LOR rebuttal, he stated the CDI never established when his clock for the 10 day isolation started.  The COVID-19 Questionnaire completed on 19 Oct 20 was filled in by one of the providers.  He informed the provider he had been showing symptoms for four or five days prior to arriving for testing.  This is important as the clock for isolation began at the onset of symptoms (14 Oct 20).  All of the guidance in the ROI states any isolation for a period of 10 days was beginning with the onset of symptoms.  In the analysis, the IO did not address when his isolation period ended.  If his isolation began on 14 Oct 20, then 10 days expired on 23 Oct 20.  While he is sorry that he went to the pool, he did not believe he was in violation of any rules or orders.  The medical officer at the COVID-19 testing site was required to lay out an inclusive period for isolation on the DD Form 689, Sick Slip.  His sick slip makes no reference to any inclusive period.  

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

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 officer selection record (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.  

AFI 10-2519, Public Health Emergencies and Incidents of Public Health Concern, Paragraph 3.2.10.2, Persons subject to quarantine or isolation shall obey the rules and orders established by the installation commander in consultation with public health.  Failure by military members who are subject to quarantine or isolation to obey the rules and orders established by the installation commander, to remain within the quarantine premises; or to refrain from putting themselves in contact with any person not subject to quarantine is a violation of Article 92, UCMJ.  Figure A4.1. Template: Notice of Isolation, includes directions and information for conditions for termination of the order, specified duration of isolation, the place or area of isolation and precautions to prevent the spread.  

AR 4--66, Medical Record Administration and Healthcare Documentation, Paragraph 13-3 Procedures, DD Form 689, Sick Slip, for Duty, the medical officer will indicate in the Remarks section the duration of the quarters’ status in number of hours and indicate the inclusive period.  

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial.  The applicant’s commander issued a LOR based on the preponderance of evidence in accordance with AFI 36-2907, Adverse Administrative Actions.  It was recommended AFPC/JA review and provide an advisory. The applicant believes the adverse information was inaccurate; however, DP2SSM cannot provide input on this matter.  

The complete advisory opinion is at Exhibit D.

DAF/JA recommends denial.  There is insufficient evidence of error or injustice to undermine the LOR.  At the time of the misconduct, the applicant was the ABW staff judge advocate (ABW/SJA).  On 20 Oct 20, the applicant was notified he tested positive for COVID-19.  Following a memorized script, the applicant was informed of the procedures he was required to follow in accordance with public health guidance and DOD orders.  On 23 Oct 20, three days after testing positive, the applicant went to the public pool with his family.  Coincidentally, the OIC from the COVID testing site was also at the pool, and later reported to his chain of command she witnessed him violating the orders to isolate.  On 17 Nov 20, the ABW/CC ordered a CDI.  On 7 Dec 20, the IO submitted the ROI concluding the OIC’s order to isolate and the ABW/CC’s published Declaration of a Public Health Emergency order more than sufficient for any reasonable person to know that isolation was a prudent precaution during a pandemic.  The ABW/CC relied on the substantiated findings, among other considerations, to issue a LOR.  

The complete advisory opinion is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 31 Aug 22 for comment (Exhibit F),), and the applicant replied on 24 Sep 22.  He requests a hearing before the Board.  He asks the Board to inform him of what isolation period he violated. He asks the Board to obtain an advisory from Public Health and whether he violated AFI 10-2519, Public Health Emergencies and Incidents of Public Health Concern, Attachment 4, which imposes a requirement to issue a notice of isolation to individuals subject to isolation.  He provides a copy of the Public Health Emergency signed by the installation commander.  The failure of the government to comply with its own regulations pertaining to his alleged violation of isolation is an error.  It is also unjust for the government to punish the patient for noncompliance with a yet-unproven isolation timeframe.  

He also asks the Board to obtain an advisory from the Army’s Medical Surgeon General Office as to the AR 40-66 requirements for issuing sick slips.  This advisory opinion would inform whether the government is required to establish and communicate to the patient an isolation timeframe.  This information would prove or disprove whether the government’s actions were in error or unjust in his case.

He also requests an advisory opinion be obtained from JA on whether failing to include an isolation order is fatal to the isolation order, whether failing to establish a 10 day isolation timeframe is fatal to any potential duty to isolate for 10 days, and whether failing to establish a 10-day isolation period is fatal to a determination that one’s presence at a swimming pool on a particular date was unbecoming.  The failure to include an isolation timeframe in the three substantiated allegations from his CDI is an error.  It is also unjust because he cannot defend himself against the allegations without knowing which timeframe the government is accusing him of violating.  

DAF/JA provided an advisory, however, they did not address any of the concerns he raised.  Like the CDI, it assumes his isolation started on 19 Oct 22 because that was the day he took the COVID-19 test.  The advisory opinion does not conduct an analysis when his symptoms started, as the current policy at the time. There was no isolation order issued by the OIC of the COVID-19 testing site.  

Similarly, the AFPC advisory states his commander issued the LOR based on the preponderance of evidence. AFI 36-2907, requires to the preponderance of the evidence standard to be used when evaluating evidence and every element of the alleged offenses.  Applying the standard of proof is a requirement from the AFI.  In applying the standards, an element of the crime of disobeying an order is that a lawful order existed in the first place.  If an isolation timeframe was established, he should be advised of the period.  For the element of dereliction of duty, the government has produced no evidence as there was no isolation order.  The CDI did not even attempt to prove which isolation period it found he violated.  The government has also provided no evidence his presence at the swimming pool was unbecoming.  

It is an error, unfair and unjust to require him to defend against three allegations that presume an isolation period without telling him the alleged isolation period.  

The applicant’s complete response is at Exhibit G.

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 DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends he did not violate an isolation order following his positive COVID-19 test because there was no order to isolate.   He was punished for the failure of medical officials to comply with their own regulations and was not provided with an isolation period as required on the DD Form 689, Individual Sick Slip.  While the Board notes the applicant’s Sick Slip did not specifically state the quarantine period, the Board finds the instructions provided at the COVID-19 testing site on 19 Oct 20, the Chronological Record of Medical Care dated 20 Oct 20 documenting the notification of the positive COVID-19 test and the ABW/CC’s public health policy sufficient to conclude the applicant was properly made aware of the required 10 day isolation period.  Moreover, the Board finds the applicant, a lieutenant colonel and staff judge advocate, would have reasonably known of his obligation to isolate for 10 days following his positive COVID-19 test based on the wide-spread publication of CDC guidance in effect at the time and the abundance of media information.  Instead, the applicant chose to visit a public swimming pool just three days following his positive COVID-19 test increasing the potential for community spread.  The Board also conducted an independent review of the CDI ROI and find no evidence of an error or injustice in the substantiated findings of the three allegations pertaining to his failure to comply with the isolation requirements.  The Board also finds no reason to obtain additional advisories from Public Health, the Army Surgeon General and JA as requested by the applicant.  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-2022-01934 in Executive Session on 11 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 24 Jul 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: SAF/IG, CDI ROI, dated 7 Dec 20. (WITHDRAWN)
Exhibit D:	Advisory Opinion, AFPC/DP2SSM, dated 9 Aug 22.
Exhibit E: Advisory Opinion, DAF/JA, dated 30 Aug 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 31 Aug 22.
Exhibit G:  Applicant’s response, dated 24 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.