RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00783 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: The Letter of Reprimand, dated 4 Sep 07; the Article 15 imposed on 10 Sep 08; and the Officer Performance Report (OPR) closing 7 Jun 08 be voided and removed from his records. He be directly promoted to the grade of major as though selected by the Calendar Year 2007A (CY07A) Major Central Selection Board (CSB). ________________________________________________________________ APPLICANT CONTENDS THAT: He was wrongfully accused and punished by his command for actions that did not occur, and his career has been maliciously ruined by his commander. He was reprised against for filing an Inspector General (IG) complaint against his commander. In support of his appeal, the applicant provides copies of the contested Article 15, LOR, OPR, his IG complaint, and other documents associated with the matter under review. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Information extracted from the military personnel data system (MilPDS) indicates the applicant is currently serving on active duty in the grade of captain. On 4 Sep 07, the applicant received an LOR for conduct unbecoming an officer and falsifying official documents. On 7 Sep 07, he submitted a written response to the LOR. After considering the applicant’s response, the commander decided to establish an Unfavorable Information File (UIF). On 10 Sep 08, he received nonjudicial punishment under Article 15 for wrongfully and dishonorably engaging in discussions of a sexual nature with a student; sharing a hotel with an enlisted female and student; and making inappropriate comments to his student. The punishment consisted of a forfeiture of $2501.00 pay per month for two months and a reprimand. He appealed the punishment but was denied. On 3 Nov 08, the applicant filed an IG complaint with the 325th Fighter Wing Inspector General (325 FW/IG) alleging reprisal by members of his supervision and command. On 5 Nov 08, his complaint was transferred to the Air Education and Training Command Inspector General Complaints Resolution Division (AETC/IGQ) for further review and analysis. On 28 Aug 09, AETC/IGQ forwarded their determinations to the Secretary of the Air Force, Office of the Inspector General, Complaints Resolution Directorate (SAF/IGQ) for an additional review. On 24 Sep 09, SAF/IGQ completed their quality and legal reviews, made a determination that further investigation under 10 USC 1034 was not warranted, and forwarded the applicant’s case file to the Department of Defense Inspector General Military Reprisal Investigations office (IG, DoD MRI) for final review and approval. On 20 Nov 09, IG, DoD MRI, concurred with the determination that further investigation under 10 USC was not warranted. Specifically, IG DoD MRI concurred that responsible management officials had sufficient reasons to remove him from instructor pilot duty; serve him with an LOR and establish a UIF; submit a Not Qualified for Promotion Letter and recommend Do Not Promote on his Promotion Recommendation Form (PRF); initiate a Security Information File; suspend his aviation pay; administer Article 15 punishment; render a referral OPR; provide input on his Airmen Development Plan; and recommend Do Not Promote on his Nov 08 PRF. As a result, the matter was closed (Exhibit C). Applicant's Officer Performance Report (OPR) profile since 2002 follows: PERIOD ENDING EVALUATION 17 Aug 02 Meets Standards 17 Aug 03 Meets Standards 17 Aug 04 Meets Standards 17 Aug 05 Meets Standards 2 Jun 06 Meets Standards # 8 Jun 07 Meets Standards ## 7 Jun 08 Does Not Meet Standards # Top Report at the time he was considered and nonselected for promotion to the grade of major by the CY07A Major CSB. ## Top Report at the time he was considered and nonselected for promotion to the grade of major by the CY08C Major CSB. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits D through G. _______________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the Article 15 request. They indicate the applicant has not provided any information of error or injustice to warrant action by the Board. The applicant had the opportunity to turn down the Article 15 twice, yet both times opted to have his commander decide whether he committed the offense and, if so, how much punishment would be appropriate. Once he accepted the Article 15, the applicant had opportunities to present any extenuating or mitigating evidence to his commander as part of the Article 15 proceedings. Considering the size of the applicant's written response, the commander clearly had all of the facts available to him as he made his decision. He was in the best position to carefully weigh all of the evidence, make informed findings of fact, and arrive at a suitable punishment. In AFLOA/JAJM’s view, the punishment imposed was appropriate and not unfairly harsh. There is no evidence that any of the commanders acted in an arbitrary or capricious manner. A complete copy of the AFLOA/JAJM evaluation is at Exhibit D. AFPC/DPSIM recommends denial of the LOR request. They indicate the applicant has failed to provide sufficient evidence to support his claim the LOR was unwarranted or unjustified. A complete copy of the AFPC/DPSIM evaluation is at Exhibit E. AFPC/DPSIDEP recommends denial of the OPR request. They note the applicant received the LOR and a subsequent Unfavorable Information File (UIF) for an unprofessional relationship; falsifying official documents, behavior unbecoming of an officer; and failure to obey a lawful order. The alleged conduct took place during the reporting period of the contested report. Therefore, AFPC/DPSIDEP finds no error or injustice in how the report is written. A complete copy of the AFPC/DPSIDEP evaluation is at Exhibit F. AFPC/DPSOO recommends denial of the promotion request based on the AFLOA/JAJM, AFPC/DPSIM, and AFPC/DPSIDEP evaluations. A complete copy of the AFPC/DPSOO evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to applicant on 26 Jun 09 for review and response within 30 days. As of this date, no response has been received by this office (Exhibit H). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The applicant alleges that he was punished for actions that did not occur. To substantiate this allegation he points to the same alleged deficiencies and contradictions in the evidence against him that he presented to his commander who imposed Article 15 punishment. His assertions are not convincing and do not in facts establish that he did not commit these offenses. As pointed out in the JAJM opinion, his commander was in a better position to weight this contested evidence and reach the determination that the offenses as charged were committed. He has not sustained his burden of proof to show his commander reaching this conclusion was an error or injustice. Accordingly, he has not established that he was punished for conduct that did not happen. 4. The applicant has alleged Whistleblower retaliation in violation of 10 USC 1034. We note the Inspector General investigated these allegations and concluded a formal Whistleblower investigation was not warranted. Based upon our own independent review, we have determined the applicant has not established the adverse actions he cites were retaliation for his IG complaint. In reaching this determination, we note he has submitted no direct evidence of this reprisal motive, and the actions taken were a reasonable response to his misconduct. Moreover, the non-judicial punishment was imposed/reviewed by other commanders senior to his commander and reviewed by two legal offices. Although there is evidence that his commander may have thought poorly of this officer, it appears it was because of this officer’s conduct not his complaint to the Inspector General. In view of the above, and in the absence of evidence to the contrary, we find no basis exists upon which to recommend granting the relief sought in this application. 5. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that he was not the victim of whistleblower retaliation and the evidence presented did not otherwise demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2009-00783 in Executive Session on 23 Feb 09, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Feb 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Inspector General (IG) Report (withdrawn). Exhibit D. Letter, AFLOA/JAJM, dated 30 Mar 09. Exhibit E. Letter, AFPC/DPSIM, dated 17 Apr 09. Exhibit F. Letter, AFPC/DPSIDEP, dated 4 Jun 09. Exhibit G. Letter, AFPC/DPSOO, dated 16 Jun 09. Exhibit H. Letter, SAF/MRBR, dated 26 Jun 09. Panel Chair