RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04651
		COUNSEL:  NONE
		HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

His Non-Judicial Punishment (NJP) under Article 15 of the Uniform 
Code of Military Justice (UCMJ) imposed on 4 Jun 13, be set aside 
and removed from his records.  He further requests that any rank, 
pay, allowances, entitlements, rights and privileges affected by 
the NJP be restored.


APPLICANT CONTENDS THAT:

His punishment under Article 15, UCMJ was in error and resulted in 
an Unfavorable Information File (UIF), loss of line number to the 
grade of master sergeant, reduction in grade to Staff Sergeant 
(SSgt) and loss of pay and allowances.  Specifically, the 
Procedural Guidance Message was not properly followed at the time 
of the original allegation submitted by a recruit.  The recruit 
should have been interviewed upon knowledge of the allegation and 
before being allowed to depart for Basic Military Training (BMT).  
Neither he nor his production superintendent or immediate 
supervisor was contacted until the recruit had departed for BMT. 
Had the PGM been followed, the allegation could have been resolved 
in-house and/or at the lowest level of authority, without the 
assistance of the Office of Special Investigations (OSI) and the 
Area Defense Counsel (ADC), which resulted in additional 
allegations based off the interviews provided by the recruit. 
He does not feel his actions should have gone unpunished; however 
a Letter of Reprimand (LOR) with conditions would have been 
sufficient punishment and served the desired purpose.  
In support of his appeal, the applicant provides copies of witness 
interview summaries with his clarification responses, character 
statements, AF Forms 910, Enlisted Performance Report (AB thru 
TSgt); AF IMT 2096, Classification/On-the-Job Training Action; AF 
Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru 
TSgt); and various other documents associated with his requests.

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



STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of 
SSgt.  
Based on the AF Form 3070A dated 4 Jun 13, the applicant was 
charged with violation of Article 92, UCMJ.  Specifically, on 
divers occasions, from on or about 1 Jan 12, to on or about 31 Jan 
13, the applicant willfully failed to maintain professionalism in 
his relationship with recruits, as it was his duty to do, by 
engaging in improper conduct with recruits that included embracing 
and patting the buttocks of male recruits.  
On 10 Jun 13, the applicant consulted counsel, waived his right to 
demand trial by court-martial and accepted the NJP.  He submitted 
written matters in his own behalf and requested a personal 
appearance before the commander.
On 13 Jun 13, the commander determined the applicant committed the 
alleged offense and imposed punishment consisting of reduction in 
grade from Technical Sergeant (TSgt) to SSgt and reprimanded him.
On 18 Jun 13, the applicant appealed the commander’s decision and 
submitted written matters in his own behalf.  On 21 Jun 13, the 
appeal was denied by the commander.  On 25 Jun 13, the appellate 
authority denied the applicant’s appeal and his commander decided 
the action would be filed in an UIF.  On 26 Jun 13, the applicant 
was notified of the commander’s decision.   
According to a AFLOA/JAJM letter, dated 6 Nov 13, on 27 Jun 13 and 
12 Jul 13, respectively, both the Servicing and General Court-
Martial Convening Authority (GCMCA) Staff Judge Advocate (SJA) 
offices reviewed the Article 15, UCMJ action and determined it to 
be legally sufficient.


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  The applicant does not make a 
compelling argument that the Board should overturn the commander’s 
NJP decision on the basis of an error or injustice.  
A set aside of NJP is the removal of the punishment from the 
record and the restoration of the service member’s rights, 
privileges, pay, or property affected by the punishment.  Setting 
aside an Article 15 action restores the member to the position 
held before imposition of the punishment, as if the action had 
never been initiated.  Set aside of punishment should not 
routinely be granted.  Rather, set aside is to be used strictly in 
the rare and unusual case where a genuine question about the 
service member’s guilt arises or where the best interests of the 
Air Force would be served.


The complete JAJM evaluation is at Exhibit B.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He understands that the punishing commander possessed the 
authority to act in the manner in which he chose.  However, his 
concern is that had the proper procedure been followed, then the 
situation would not have elevated to the level in which it did; 
which in turn led to a much harsher punishment than his ADC 
suggested.  He understands that a sexual assault allegation is 
serious; however, this case could have been handled by the 
squadron commander.  

One such error was that the squadron operations flight chief did 
not follow the chain of command, but instead approached the 
squadron commander with partial information.  At the time of the 
original allegation, according to the Procedural Guidance Message, 
the recruit should have been interviewed before departing for BMT.  
While there is some truth to what he said, there was a generous 
amount of “fluff” that could/should have been identified.  

The first sergeant should have personally interviewed the recruit 
to ascertain all the facts and gain a better understanding of what 
had taken place, especially since this was his first allegation in 
over three years of recruiting, before suggesting it should be an 
OSI situation.  

He should have been contacted for an interview and both his 
immediate and production supervisors should have been notified of 
the allegation.  It appears there was never any intention to 
handle the allegation at the lowest possible level.  After several 
months with no updates on the investigation, he found out on his 
own that he should contact the ADC and seek guidance.  

What is most troubling about two of his main accusers, the recruit 
and his mother, is that he communicated with both parties during 
the recruiting process and never detected any frustration whether 
via text messages, phone calls or face-to-face meetings even after 
his normal duty hours and some weekends.

He regrets his unwise decisions; however, there are many instances 
of misconduct and/or unprofessionalism that exist within the 
recruiting career field that are hidden from the leaders by a 
“network of wrongdoers” who protect each other, as Air Force 
Recruiting is often referred to as “a good ole boy club.”  

He is not attempting to rebel or abide by “his own rules,” but 
although the “bro hug” can be unprofessional conduct as it falls 
under sexual harassment, it can also be viewed as a sign of mutual 
respect as was the case with his recruits.  It is performed in a 
mutual motion very much like we have witnessed when our Commander-
in-Chief is greeted by other world leaders and individuals of 
distinction.  He has been the recipient of a “good game” tap on 
the buttocks and an embrace, both on and off sports surfaces since 
being in the Air Force.  

His unwise decisions have received emphasis and the things that he 
has done correctly, even going above and beyond the call of duty, 
in contrast, has barely been mentioned. 

He understands that an Article 15, NJP is rarely set aside, unless 
it is in the best interest of the Air Force.  However, he believes 
the Air Force would benefit from him being restored to his proper 
rank because he knows how to inspire and motivate others in three 
areas of concentration: on-the-job, church, and in the local 
community

In further support of his appeal, the applicant provides a 
personal statement, a copy of AF IMT 2096 and various other 
documents associated with his requests. 

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


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 an error or injustice.  While the 
applicant asserts that the proper procedures were not followed, he 
has not provided any evidence to show that the actions taken by 
his commander were not done in accordance with established policy.  
The evidence reflects that after considering all matters presented 
by the applicant, his commander determined that he had committed 
the alleged offense and made the decision to impose NJP under 
Article 15, UCMJ.  The Article 15 was found legally sufficient and 
it appears the applicant was provided all of the rights to which 
he was entitled, including the right to refuse the Article 15 and 
demand trial by court martial.  By waiving his right to trial by 
court-martial, he accepted the commander’s evaluation of the 
evidence and his judgment as to his guilt or innocence and 
punishment.  Therefore, we agree with the opinion and 
recommendation of the Air Force office of primary responsibility 
and adopt the rationale expressed as the basis for our conclusion 
the applicant has failed to sustain his burden of proof that he 
has been the victim of an error or injustice.  In the absence of 
evidence the information used as a basis for the Article 15 was 
erroneous, or there was an abuse of discretionary authority, we 

find no basis to recommend granting the relief sought 
in this application. 


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-2013-04651 Executive Session on 29 Jul 14, under the provisions 
of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 26 Sep 13, w/atchs.
	Exhibit B.  Letter, AFLOA/JAJM, dated 6 Nov 13.
	Exhibit C.  Letter, SAF/MRBR, dated 14 Nov 13.
Exhibit D.  Letter, Applicant, dated 12 Dec 13.

						


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