RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03217 

 COUNSEL: NONE 

 HEARING DESIRED: YES 

 

 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His demotion from chief master sergeant (E-9) to senior master 
sergeant (E-8) be vacated. 

 

2. His date of rank (DOR) be restored to his original DOR. 

 

3. He be returned to his former position as Force Support 
Squadron (FSS) Superintendent. 

 

3. He receive all back pay and allowances. 

 

4. He receive 27 days of annual leave. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. He testified against his wing commander in an Inspector 
General (IG) investigation and believes he was reprised against 
when his commander demoted him for having an unprofessional 
relationship. The investigation found the wing commander guilty 
of three violations of the Air National Guard demotion regulation 
and three further violations of unlawful command influence. In 
addition to his removal, the MSG/CC and SF/CC, who testified 
against the commander, were also removed. 

 

2. The original non-judicial punishment (NJP) notification served 
by the wing commander violated his due process rights when he was 
pulled back and re-served the NJP based on information directly 
relating to the Commander-Directed Investigation (CDI). Neither 
he nor his attorney was allowed to see the CDI results. 

 

3. The NJP notification also contained procedural errors to 
include charging him under an Air Force Instruction, but demoting 
him under the authority of a Department of Military and Naval 
Affairs (DMNA) regulation and New York State Military Law 
(NYSML). 

 

4. He was not allowed to turn-in a response for the wing 
commander to reconsider with regard to the NJP. Further, the 
severity of the NJP action is inequitable and unjust when 


compared to others who were accused of the same unprofessional 
relationships. His record of performance and conduct was never 
considered. AFI 36-2909, Professional and Unprofessional 
Relationships” clearly states that, “…the use of a stepped 
approach to enforcement of the policy, taking into consideration 
all the surrounding facts and circumstances…” and “…experience 
has shown that counseling is often an effective first step in 
curtailing unprofessional relationships…”. The commander ignored 
the regulations specific guidance and chose to punish him for 
testifying against the wing commander. Documentation he was 
provided in response to a Freedom of Information Act (FOIA) 
requests shows that no one in the past 10 years has been 
investigated, demoted, removed or punished under the same 
conditions and accusations that he was in New York State. 

 

5. The embarrassment and humiliation he endured by being removed 
from his office, having his access removed from e-mail and all 
systems, was an injustice. He was physically placed in a back 
room of the Civil Engineering Squadron (CES) and made to 
constantly defend himself. He had to fight against almost every 
personnel action to include being removed from the Air Guard and 
Reserve (AGR) program, reenlistment denial, denial of a Line of 
Duty (LOD) determination and several attempts to serve him with a 
referral Enlisted Performance Report (EPR). The harassment, 
humiliation, and the fear of losing his job, caused him major 
medical issues. 

 

6. The commander tried to use his medical issues to remove him 
from the AGR program, but failed. His wife was also harassed at 
her job and at home with anonymous letters and “leaked” copies of 
the wing commander’s CDI. It was recommended this harassment be 
investigated; however, the wing commander decided not to take any 
action. 

 

7. He was illegally detailed out of his position for more than 
180 days, which is a violation of the governing Air National 
Guard instructions. 

 

8. The commander had a history of undue command influence dating 
back to 2006, as shown in a previous BCMR Case (BC-2006-02700). 

 

9. He was never read his rights, and his testimony was not 
recorded and transcribed as required, but rather “summarized” by 
the Investigation Officer (IO). The IO was also a member of the 
wing staff under the direct supervision of the wing commander and 
subsequently was given a full-time position during his 
investigation. 

 

10. On 28 May 09, the wing commander called him into the wing 
conference room along with his former executive officer and the 
wing vice commander. In this meeting, the wing vice commander 
referred to him multiple times as “Sergeant R” not “Chief” and 
told him he already had the CDI and that the The Adjunctant 
General (TAG) would decide his fate. However, the legal review 


of the CDI is dated 12 Jun. As such, the fact the commander 
already had a copy of the CDI violated his right to due process. 

 

11. His command chief, supervisor, commander, and MSG/CC had 
already talked to him about the relationship in question; 
however, when the wing commander took control of his case, they 
were not allowed to participate in decisions regarding his NJP or 
were influenced by the wing commander and feared reprisal. 

 

12. His attorney was unable to properly defend him because he was 
not granted access to the required information or even permitted 
to meet him face-to-face at any time during the process. His 
unit and the Headquarters, New York Air National Guard never 
responded to concerns regarding undue command influence, the CDI, 
and the harassment his wife experienced. 

 

13. An e-mail communication from his previous MSG/CC states, “At 
the time of these allegations, the Wing/CC had removed my NJP 
authority and the NJP authority of all of my Mission Support 
commanders.” The email further states that, “At the time of 
these allegations, if I had NJP authority and the allegations 
were founded I would have taken into consideration your 24+ years 
of exemplary service. I would have ordered you to go for 
counseling and I would have considered a lesser punishment, i.e. 
reassignment and a letter of reprimand.” 

 

14. On 8 Oct 09, the NY TAG denied the “AGR Removal for Cause” 
action stating in paragraph 4 that “The notice of recommendation 
for removal clearly states the recommendation is based on 
“careful review of the Commander Directed Investigation (CD)…” 
and “my recommendation is based on the evidence of this as 
provided in the CDI and the legal review…” However, the unit 
denied him the due process provided for in the ANGI 36-101” since 
he and his council were repeatedly denied access to the CDI. He 
was also told the referral EPR was being withdrawn. 

 

15. On 9 Oct 09, the unit notified him of the “Intent to 
Terminate AGR Status and Employment.” No clearer case can be 
made that the base was willing to do whatever they could to get 
rid of him. 

 

16. On 11 Dec 09, the LOD investigating officer (IO) submitted 
his report, of note is that he only spoke with him and one other 
person; however, the statement of the other 2 “witnesses” were 
actually statements taken from the CDI. His entire case is based 
on the CDI to which he was denied access. While the LOD IO’s 
recommendation was “not in the line of duty,” on 6 May 10, NGB 
ruled that it was “In the Line of Duty.” 

 

17. He was improperly extended for a period of 6 months and the 
reason given was for “pending LOD w/out determination from HQ-NY 
IAW ANGI 36-2002, T4.2, R9.” The rule has to do with airmen who 
are under investigation or awaiting trial. However, the document 
has since been removed from his records. Further, since his AGR 


order was not completed until 5 days prior to his end-of-tour, he 
fell out of the pay system, causing him to not receive any pay. 

 

18. He was not informed of the TAG’s decision until 35 days after 
the decision on his appeal had been made. 

 

In support of his request, the applicant provides excerpts from 
his master personnel file, to include but not limited to, copies 
of his EPRs and award citation, NJP documentation, copies of 
letters of support, a redacted excerpt of the CDI, an excerpt of 
AFI 36-2909, e-mail communications, a copy of Record of 
Proceedings (ROP) pertaining to BC-2006-02700, excerpts of AFI 
36-2909, Professional and Unprofessional Relationships, a 
personal statement, and a memorandum from his attorney. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is serving in the AGR program with the NYANG. The 
applicant’s commander initiated a Commander-Directed Investigated 
(CDI), which substantiated allegations the applicant had an 
unprofessional relationship. Specifically, the CDI, dated 27 Apr 
09, found that between on or about Oct 08 through Mar 09, he 
disobeyed AFI 36-2909, a Lawful General Order or Regulation, by 
engaging in an inappropriate and unprofessional relationship with 
a female airmen married to a direct subordinate. 

 

On 2 Jul 09, the applicant was notified of his commander’s 
intention to recommend nonjudicial punishment (Article 15) for 
having an unprofessional relationship in violation of AFI 36-29, Professional and Unprofessional Relationship, and in further 
violation of New York State military law Section 130.88, Failure 
to Obey an Order or Regulation, and Section 130.115, General 
Section. On 2 Aug 09, the applicant acknowledged receipt of the 
notification of intent. The applicant and his attorney prepared 
rebuttal statements regarding the facts and circumstances 
surrounding the allegations. The rebuttal was provided to the 
NYANG commander who reviewed the matter; however, after due 
deliberation he elected to impose punishment. 

 

The applicant was diagnosed with an anxiety disorder that was 
established when the CDI convened to investigate allegations that 
he was involved in an unprofessional relationship. An LOD was 
conducted and the LOD IO determined the applicant was “present 
for duty” but the injury was proximately caused by his own 
misconduct and accordingly “Not in the Line of Duty, Due to Own 
Misconduct.” The legal review determined the LOD was legally 
sufficient, properly conducted in accordance with the governing 
instructions, and the stress and anxiety that he was suffering, 
was brought on by his own willful misconduct. 


 

The commander determined the member’s misconduct warranted NJP 
action and AGR removal. The first attempt to impose NJP was 
withdrawn; however, the second NJP action was imposed by HQ 
NYANG. The charge was for engaging in an “Unprofessional 
Relationship.” The charge was sustained and the member was 
reduced in grade from chief master to senior master sergeant. 
The applicant’s request to set aside the reduction was denied. 
For unknown reasons, the TAG withdrew the AGR removal actionn. 

On 12 Jun 09, the NYANG/JA Liaison Officer reviewed the CDI and 
concluded it was legally sufficient and was supported by the 
evidence. 

 

On 16 Jun 09, the 106th RQW/CC reviewed the CDI and subsequent 
legal review. The commander concurred with the findings and 
conclusions of the IO and reduced the applicant from the 
permanent grade of chief master sergeant (E-9) to the permanent 
grade of senior master sergeant (E-8), effective and with the 
date of rank of 4 Oct 09. 

 

On 17 Dec 09, TAG approved the applicant’s appeal for 
reconsideration to renew his continuation in the AGR program. 

 

In a HQ NYANG/SJA letter, the Inspector General (IG) initiated an 
investigation against the 106 RQW/CC to include the Introduction, 
Background, Allegations, and Tab C: Findings, Analysis, and 
Conclusions, which found the following:. 

 

 a. Allegation #1: On or about 8 Feb 09 the 106 RQW/CC 
improperly ordered the demotion of SMSgt M in violation of ANGI 
36-2503, Section 2.1. Findings: SUBSTANTIATED. 

 

 b. Allegation #2: The 106 RQW/CC improperly directed and 
allowed the use of voluntary reduction in grade of in place of 
NJP in violation of ANGI 36-2503, Section A 1.1, for one senior 
master sergeant and two master sergeants. Findings: SUBSTANTIATED for one senior master sergeant and one master 
sergeant; it was found UNSUBSTANTIATED for one master sergeant. 

 

 c. Allegation #3: The 106 RQW/CC used unlawful command 
influence to the detriment of good order and discipline by 
directing subordinate commanders to execute corrective actions in 
a certain manner as prescribed by him in violation of NYSML 
general article 130.115 by issuing two Letters of Reprimand 
(LORs) and an e-mail communication to another colonel regarding a 
master sergeant. Findings: SUBSTANTIATED. 

 

_________________________________________________________________ 

 

 

 

AIR FORCE EVALUATION: 

 


HQ NYANG/SJA recommends denial, and states in part, the CDI 
sustained findings which articulated the applicant was involved 
in an illicit affair with a very young and junior enlisted woman 
whose husband was under his supervision. The wing commander 
initiated NJP action against both the applicant and the junior 
enlisted member; they were both served with AGR and technician 
removal actions. NYANG was not consulted on any of the actions 
contemplated by the wing commander; however upon review of the 
matters, it was determined that the first NJP documents prepared 
were legally insufficient. Consequently, the NJP charges were 
withdrawn and re-drafted. Although the wing commander served the 
NJP, the actions were actually that of the NYANG commander. 

 

The timeline for the CDIs are out of sync. The CDI initiated by 
the commander regarding the unprofessional relationship was 
concluded before the CDI had been initiated against the 
applicant’s commanders. Further, the applicant offers little 
credible evidence to support his assertion that his commander 
somehow knew or was aware of the fact that the applicant 
testified against him. The applicant contends that he was 
subjected to errors, injustices and inequities, but fails to 
submit documentary evidence to support his assertions. Once 
NYANG asserted itself in the matters at the 106 RQW, the original 
NJP charges were withdrawn and re-drafted. Further, the NYANG 
commander initiated the action and imposed punishment. The 
applicant also contends the punishment imposed was not warranted 
based on prior cases under similar accusations and conditions. 
While there may not be many cases similar in nature, there have 
been other senior NCOs in NYANG who have lost or had a strip 
suspended for less egregious misconduct. The applicant’s 
attorney received relevant details with regard to the CDI which 
provided the basis for proving the charges alleged. 

 

The applicant also fails to mention that the NYANG elected not to 
charge him with adultery, to avoid further pain and humiliation. 
In addition, NYANG reviewed the contemplated action to remove him 
from his AGR position; however, they withdrew that matter. With 
regard to the applicant’s LOD, the wing commander determined that 
the applicant’s subsequent LOD for stress-related illness, due to 
the various stressors in his life was not sustained by NYANG. 
NYANG respectfully disagreed with that determination and found 
that the applicant was present for duty and that his 
illness/injury contemplated was in the LOD. NGB/JA concurred. 
An error or injustice did not occur and does not warrant 
correcting his records. The NJP action was found to be legally 
sufficient. The applicant’s procedural and due process rights 
were adequately protected. The punishment imposed was fair and 
reasonable, given the nature of the offense and the lack of 
remorse exhibited by the applicant. 

 

The complete HQ NYANG/SJA evaluation is at Exhibit C. 

 

NGB/HRT recommends denial. The applicant provides no 
justification to substantiate his contention that he was 


subjected to NJP as retaliation for testifying against his wing 
commander in an IG investigation or that he was unjustly punished 
and not treated the same as other members in the wing, who 
committed the same offense. The applicant has not proved that 
his NJP was a result of the IG testimony, nor did he prove that 
he was treated more severely than others. Proper procedures were 
followed, as a matter of fact; the junior enlisted member he had 
the illicit affair with also was demoted and will most likely not 
be retained in her full time position. 

 

Furthermore, the NJP action taken by the NYANG commander and 
served by the wing commander was legally sufficient and the TAG 
upheld the action upon appeal. Therefore, it does not appear to 
be any error or injustice that warrants corrective action. 

 

The complete NGB/HRT evaluation is at Exhibit D. 

 

NGB/A1PS recommends denial. A1PS concurs with the NGB Subject 
Matter Expert advisor. 

 

The complete NGB/A1PS evaluation is at Exhibit E. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

In a six-page brief, the applicant makes the following key 
contentions: 

 

 a. His greatest concern is that the ANG and their 
respondents fail to address specific inequities, improprieties 
and evidence in this case such as IG findings, MEO testimonies, 
and statements from both JAGs involved, official memorandums and 
FOIA responses. The ANG and the advisory do not provide any data 
other than their “opinion” to refute any of the evidence 
presented and substantiated and in many cases they do not even 
reference the actual evidence in support of their position or 
even acknowledge its existence. 

 

 b. He is not sure why the ANG “SME” who reviewed his 
application is someone that he has known and worked with for 
several years while he was assigned to the NGB. The NGB/HRT 
advisory writer may have a personal bias toward him. From his 
estimation HRT did a poor job of providing an SME review and 
justification for the ANG recommendation in his case. In his 
package, he provides specific information that shows he 
demonstrates his mistreatment as much as possible; to include the 
FOIA requests, formal investigations, etc. Specifically, he 
provides further detailed information that reiterates his 
original contentions and points-out how the HRT advisory fails to 
check the facts. 

 

 c. In responding to the ANG/SJA advisory, he contends that 
several statements made by the SJA are either false or misleading 


and he will attempt to highlight them using only the evidence 
provided in his original package. 

 

 1) The advisory attempts to get around the fact that he 
and his attorney were never provided a copy of the CDI by saying 
things like “His counsel was provided relevant details of the 
CDI…” or in other words his attorney was provided only what they 
wanted them to see and not the entire file. It also fails to 
mention that the attempt to remove him from his AGR tour was 
denied by the TAG specifically for failing to turn over the CDI. 
The most disappointing and puzzling piece to him is that the 
advisory fails to address any of the concerns submitted about the 
CDI by him or his attorney. He lists five specific areas that 
were not provided by the advisory writer, which were provided in 
the original package. 

 

 2) The contention that “Although Col C served the re-
drafted NJP charges, the actions were in fact initiated on behalf 
of the NYANG Commander…” is completely without merit and by 
making that statement SJA does not fully understand the JNP 
process or is attempting to confuse the issue. 

 

 d. SJA also states that he was able to consult “detailed 
military council” and does not make any mention of the fact that 
his JAG, who is a respected New York City attorney at law and 
still a JAG with the NYANG, makes a statement that he was not 
able to defend him properly. 

 

 e. The SJA advisory states that he testified in a CDI 
against the wing commander when, in fact, he testified in an IG 
investigation. Page 15 on the investigation listed above the 
second bullet shows that a CMSgt (name redacted) made an 
appointment with the colonel (name redacted) and CCM and 
“explained his concerns…and read to him para 1.1, 1.3, and 3.7 of 
ANGI 36-2503.” He was the CMSgt that made the appointment, and 
his name is redacted, who as the personnel superintendent briefed 
the wing commander on the regulations. Although he cannot prove 
the wing commander was aware that he had testified, keeping in 
mind his position at the time, the conversations he had with him 
and knowing the commander’s background of undue command 
influence, it is reasonable to assume he was completely aware of 
his involvement and in-turn, in his estimation, he decided to 
retaliate against him. 

 

Finally, he is not sure how to respond to the SJA comment 
concerning HQ NYANG “electing” not to charge him with adultery or 
his “lack of remorse.” He is disappointed that SJA would provide 
such a misleading or false statement and to suggest SJA knows 
what is in his heart or how he feels having never met him or 
spoken to him is shocking to say the least. He has been 
geographically separated from his family for over 2 years and 
placed away from his unit. He has been maintaining two 


households in essence paying his own way to be at the NGB in DC 
since Jan 11. He believes that he has proven himself. 

 

 

 

The applicant’s complete submission is at Exhibit G. 

 

_________________________________________________________________ 

 

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. After 
thoroughly reviewing all the evidence provided, we are not 
persuaded that his demotion from chief master sergeant to senior 
master sergeant be vacated, his DOR be restored, he be returned 
to his former position and he receive back pay and allowances 
with 27 days of annual leave. Evidence has not been presented 
which would lead us to believe that the imposition of the Article 
15 on the applicant was improper or disproportionate. By 
accepting the Article 15 forum, the applicant entrusted to his 
commander the responsibility to decide if he had committed the 
alleged offense. We find insufficient evidence that the 
applicant was denied any right entitled to under the Article 15 
process, to include, his right to demand trial by court martial 
which would have required a different legal standard for his 
conviction. . In cases of this nature, the Board is not 
inclined to disturb the decisions of commanding officers absent a 
showing of abuse of that authority. Although the applicant 
argues that he was reprised against for testifying against his 
commander during the commander’s investigation for unlawful 
command influence, we agree with NYANG/SJA’s position that the 
NJP action was supported by legal sufficient evidence. 
Additionally, we find the commander’s actions holding the 
applicant accountable for his misconduct to be reasonable. The 
applicant was entrusted in a position of leadership, his conduct 
was clearly inappropriate and disruptive to the health, welfare, 
morale of the unit, and was prejudicial to good order and 
discipline. Although we find the circumstances of this case 
regrettable, we do not find a basis to recommend granting the 
relief sought and must recommend that all requests be denied. 
Therefore, in the absence of persuasive evidence to the contrary, 
we find no basis to recommend granting the relief sought in this 
application. 

 

4. 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 the evidence presented did not 
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-2011-03217 in Executive Session on 5 Apr 12 and 14 May 
12, under the provisions of AFI 36-2603: 

 

 , Chair 

 , Member 

 , Member 

 

The following documentary evidence for was considered: 

 

 Exhibit A. DD Form 149, dated 31 Jul 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, HQ NYANG/SJA, dated 28 Dec 11. 

 Exhibit D. Letter, NG B/HRT, dated 13 Jan 12. 

 Exhibit E. Letter, NGB/A1PS, 17 Jan 12. 

 Exhibit F. Letter, SAF/MRBR, dated 19 Jan 12. 

 Exhibit G. Letter, Applicant, dated 9 Feb 12. 

 

 

 

 

 

 Chair