RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01167 COUNSEL: NONE HEARING DESIRED: NO __________________________________________________________________ APPLICANT REQUESTS THAT: The promotion propriety actions to delay his promotion to captain and remove his name from the Calendar Year 2008B (CY08B) Captain Select List be removed from his records and his promotion to captain (O-3), with an effective date of 1 June 2009, be restored. __________________________________________________________________ APPLICANT CONTENDS THAT: He was acquitted of all charges used to delay/remove his promotion to captain. In support of his appeal, the applicant provides a personal statement and copies of the Record of Promotion Propriety Actions, his response to the delay of promotion action, and the Report of Result of Trial. The applicant’s complete submission, with attachments, is at Exhibit A. __________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of first lieutenant (O-2) with a date of rank of 1 June 2007. He has a Total Active Federal Military Service Date and Total Active Federal Commissioned Service date of 1 June 2005. His projected date of separation is 31 December 2010. The applicant was selected for promotion by the CY08B Quarterly Captain Selection Process that closed out on 30 June 2008. His projected promotion date was 1 June 2009. On 30 September 2009, his commander recommended the applicant’s promotion be delayed until 1 November 2009 due to an ongoing investigation concerning charges against the applicant for attempting to wrongfully possess cocaine, in violation of Article 80 of the Uniform Code of Military justice (UCMJ); dereliction in the performance of duty, in that, he willfully failed to report to proper authorities the wrongful use of marijuana by another service member, in violation of Article 92, UCMJ;, making an official statement to the Air Force Office of Special Investigations, with intent to deceive, in violation of Article 107, UCMJ; and for wrongful use of cocaine on diverse occasions between on or about 1 July 2008 and on or about 11 December 2008, in violation of Article 112a, UCMJ. On 30 September 2009, his commander recommended the applicant’s name be removed from the promotion list. On 30 November 2009, the Secretary of the Air Force (SECAF) approved his removal from the CY08B Quarterly Captain Select List. A General Court-Martial Order, dated 11 March 2010, indicates the applicant was found not guilty of all charges and specifications. On 9 July 2010, the applicant was notified of his non-selection for promotion to the grade of captain by the CY10A Captain Promotion Process, and since this was his second non-selection for promotion, the law (Title 10, United States Code, Section 631) requires him to be involuntarily separated on 31 December 2010. __________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOO recommends denial. DPSOO states Air Force Instruction 36-2501 indicates commanders question promotion when the preponderance of evidence shows the officer is not mentally, physically, morally, or professionally qualified to perform the duties of the higher grade. Early identification of the officer and proper documentation are essential in taking a promotion propriety action. Air Force policy states that formal rules of evidence do not apply to a promotion propriety action. The applicant’s removal action was reviewed by base and Air Force legal offices and the action was found to be legally sufficient to warrant the action taken. DPSOO has no recommendation if the Board’s decision is to grant relief over their objections. The complete DPSOO evaluation is at Exhibit C. AFPC/JA recommends approval. JA states the applicant was found not guilty at a general court-martial of all of the cocaine related charges that supported the promotion propriety actions. Their office contacted the Staff Judge Advocate (SJA) at the base where the offenses were alleged to have taken place. The SJA reported the applicant’s court-martial acquittal was rendered on the merits and was not based on any technicality. Moreover, the SJA was not prepared to say the totality of evidence still supported the promotion propriety actions – even when measured by a preponderance of the evidence standard versus the beyond a reasonable doubt standard used at the court-martial. The SJA further indicated his command leadership supported the applicant’s request to obtain his promotion and remove the propriety actions from his record. JA indicates that in a case like this, they would normally recommend upholding the promotion removal even in the face of a court-martial acquittal, given the different standards of proof that apply to each. However, they can distinguish this case on the basis that the servicing SJA office no longer believes the evidence is sufficient to sustain the promotion propriety actions. In the absence of any evidence in the file to support those actions, they defer to the opinion of those in the applicant’s chain of command who are more familiar with the evidence. The complete JA evaluation is at Exhibit D. __________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: If the promotion propriety actions were generated due to the accusations and the letter of support from his commander at the time; and, those accusations were later proven false, there is no logical reason why the propriety promotion actions should not be removed and his earlier promotion be restored. He places his faith in the Air Force at this point, and will accept whatever decision the Board chooses. The applicant’s rebuttal, with attachments, is at Exhibit F. __________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We concur with the AFPC/JA opinion that the applicant has provided sufficient evidence to expunge his promotion propriety action from his records based on the fact that he was found not guilty of all cocaine related charges that supported the promotion propriety actions. In this regard, we note the applicant has provided a letter of support from his commander, recommending that his promotion to captain be restored. Based on this command support and the fact the applicant was found not guilty of all charges, we believe it would be an injustice to not restore the applicant’s selection to the grade of captain by the CY08B Quarterly Captain Selection Process. Additionally, we believe it would be an injustice to the applicant to continue to suffer the effects of the negative documentation in his records pertaining to this issue. Therefore, we recommend the applicant’s records be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. His name was not removed from the list of officers selected by the CY08B Quarterly Captain Select List and the promotion propriety actions taken to delay his promotion be declared void and expunged from his records. b. He was promoted to the grade of captain effective and with a date of rank of 1 June 2009. c. Any nonselections for promotion to the grade of major in-the-primary zone prior to receiving a minimum of three Officer Performance Reports with at least 250 days of supervision, in the grade of captain, be set aside. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01167 in Executive Session on 2 December 2010, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence for AFBCMR Docket Number BC-2010- 01167 was considered: Exhibit A. DD Form 149, dtd 15 Mar 10, with atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dtd 27 May 10. Exhibit D. Letter, AFPC/JA, dtd 7 Jun 10. Exhibit E. Letter, SAF/MRBR, dated 25 Jun 10. Exhibit F. Letter, Applicant, dtd 19 Jul 10, w/atchs. Panel Chair