RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01988

   						COUNSEL:  

						HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

Any and all punishment and related negative personnel actions which resulted from his failure to report his arrest for suspicion of driving under the influence (DUI) be declared void and removed from his record, to include: 

1.  His two Letters of Reprimand (LORs), dated 10 Oct 12 and 23 Oct 12, be declared void and removed from his record. 

2.  His placement on the Control Roster be expunged from his record.  

3.  His non-selection for reenlistment be declared void and removed from his record.  

4.  He be reinstated onto active duty with his prior promotability status as of his date of separation.  


APPLICANT CONTENDS THAT:

1.  His LOR, dated 10 Oct 12, was erroneous because DoD Regulation 5200-2.R, paragraph C9.1.4. is not punitive.  Therefore, failing to report an arrest under the requirements established by said regulation is not a violation of the Uniform Code of Military Justice (UCMJ).  Failing to obey a non-punitive regulation is only punishable as the less serious offense of dereliction of duty.

2.  Any duty that requires him to report his arrest for DUI violates his Fifth Amendment right against self-incrimination.  The Fifth Amendment to the U.S. Constitution guarantees one shall never be “compelled in any criminal case to be a witness against [oneself}.”  

3.  His placement on the Control Roster, opening an Unfavorable Information File (UIF), and his non-selection of the AF Form 418, Selective Reenlistment Program (SRP) Consideration for Airmen in the Regular Air Force/Air Force Reserve, were erroneous.  He had been advised by counsel not to report his arrest based on the Fifth Amendment.  Each of these sanctions sought to punish him for asserting his Fifth Amendment rights.  

4.  His LOR, dated 23 Oct 12, for drunken operation of a vehicle was an abuse of discretion, and unjust considering he was acquitted of the DUI.  

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 24 Jun 03.

On 2 Jan 11, the applicant was arrested by civilian law enforcement for DUI and failure to make proper turns, but he did not notify his command.  

On 14 Feb 11, the applicant received a Referral Enlisted Performance Report (EPR) covering the period 28 Oct 09 through 25 Dec 10 on which he received a “Does Not Meet” standards rating in Section III, Block 3, Fitness, and an Overall Performance Assessment of “3” (Average).  

On 10 Oct 12, the applicant’s commander issued him an LOR for failing to report his arrest to his security officer as required by DoD Regulation 5200.2-R, paragraph C9.1.4. 

On 23 Oct 12, a superior commander issued him an LOR for violating the UCMJ, Article 111, Drunken Operation of a Vehicle.  

On 1 Jul 13, the applicant received a referral EPR covering the period 26 Dec 11 through 25 Dec 12 on which he received a rating of “Does Not Meet” in Section III, Block 2, Standards, Conduct, Character, and Military Bearing, and an overall performance assessment of “3” (Average).  The EPR contained the statement, “Failed to follow DoD Regulations by not reporting his arrest to his security manager for more than 20 months.”  

On 16 Jan 13, a civilian court acquitted the applicant of the charge of the DUI and related charges.  

On 26 Mar 13, the applicant’s commander completed an AF Form 418 denying him reenlistment under the FY13 Date of Separation (DOS) Rollback Program.  The reasons for taking this action included, “(The applicant) has consistently exhibited negative quality force indicators.  In CY10, (the applicant) received two letters of counseling (LOC) for fail to obey orders, a letter of reprimand (LOR) for neglect of duties, a LOC for failure to maintain fitness standards (3 failures within 24 months), and an LOR for dereliction of duty.  At the time, his commander established a UIF.  In January 2011, (the applicant) was arrested by civilian police officers under suspicion of DUI.  At this time, (the applicant) did not inform his security manager of his arrest as required by DoD Regulation 5200.2-R.  Specifically, that directive requires individuals with access to classified information to promptly report incidents affecting continued classified access to their security manager.  (Before he reported his arrest, the applicant) deployed to Exercise Red Flag, Operation ENDURING FREEDOM.  His overall record of performance and adherence to the responsibilities of an NCO do not allow to recommend him for retention.”  

On 31 Jul 13, the applicant was furnished an honorable discharge, with a Separation Program Designator (SPD) code of “LGH,” an RE code of 2X (Career Airman considered but not selected for reenlistment under SRP), a narrative reason for separation of “non-retention on active duty,” and was credited with 10 years, 1 month, and 07 days of active service.   

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C through H.    


AIR FORCE EVALUATIONS:

AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice concerning his referral Enlisted Performance Report (EPR).  In accordance with AFI 36-2406, Officer and Enlisted Evaluation System, evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the Uniform Code of Military Justice (UCMJ), or when adverse actions such as an Article 15, Letter of Reprimand, Admonishment or Counseling, or placement on the Control Roster have taken place.  The applicant was arrested for DUI, and did not tell his leadership for 20 months.  The applicant was issued an LOR due to his failure to report his arrest, and his evaluators annotated the violation on the contested evaluation.  The referral EPR was accomplished in direct accordance with all applicable Air Force policies and procedures.  Although the applicant was ultimately acquitted of the DUI charge, the fact remained he was arrested and failed to report his arrest to his command as it was his duty to do.  Based on the legal sufficiency of his LOR/Unfavorable Information File (UIF) and Article 15 punishment, the ensuing referral EPR was proper and should not be removed from the applicant’s record.  

A complete copy of the AFPC/DPSID evaluation is at Exhibit C.

AFPC/DPSIM recommends denial indicating there is no evidence of an injustice concerning the applicant’s Letters of Reprimand (LORs).  On 10 Oct 12, the applicant received an LOR for failure to report his arrest by civilian authority for DUI to his security manager.  On 23 Oct 12, the applicant received an LOR for drunken operation of a vehicle.  Based upon the documentation available, DPSIM cannot determine if the LORs presented were complete.  However, insufficient documentation has been submitted to support that the administrative actions taken were improperly completed.  Recommend denying relief of the applicant’s request to remove his LORs.  

A complete copy of the AFPC/DPSIM evaluation is at Exhibit D.

AFPC/DPSOA recommends denial indicating there is no evidence of an error or an injustice concerning his reentry (RE) code.  AFI 36-2606 states commanders have selective reenlistment selection or non-selection authority.  The applicant’s commander did not select him for reenlistment due to his own actions.  The applicant acknowledged his non-selection for reenlistment, and decided not to appeal his commander’s decision.  Although the applicant contends his denial of reenlistment was based on civilian charges for which he was ultimately acquitted, his commander points to negative personnel actions which were not related to his civilian arrest.  The applicant’s RE code of 2X is correct based upon his non-selection for reenlistment.  

A complete copy of the AFPC/DPSOA evaluation is at Exhibit E.

AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice concerning the applicant’s SPD code and narrative reason for separation.  When the applicant’s commander did not select him for reenlistment, he documented extensive rationale as to why on the AF Form 418, to include that the applicant “has consistently exhibited negative quality force indicators.  In CY10, (the applicant) received two letters of counseling (LOC) for failure to obey orders, a letter of reprimand (LOR) for neglect of duties, an LOC for failure to maintain fitness standards (3 failures within 24 months), and an LOR for dereliction of duty.  At the time, his commander established a UIF.”  This all occurred prior to his arrest for DUI.  The commander determined that based upon his overall record of performance and adherence to the responsibilities of an NCO, he could not recommend the applicant for further retention.  Even if the Board approves the applicant’s request to remove all punishment associated with his arrest for DUI, there remains enough justification on the AF Form 418 to substantiate the commander’s decision to deny the applicant reenlistment.  

A complete copy of the AFPC/DPSOR evaluation, with attachment, is at Exhibit F.

AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice concerning his eligibility for promotion.  The applicant was considered and tentatively selected for promotion to TSgt during cycle 12E6 however when he was placed on the Control Roster (CR) in Oct 12 his line number for promotion was removed in accordance with AFI 36-2502, Airman Promotion/Demotion Programs.  He also received a referral EPR covering the period 26 Dec 11 through 25 Dec 12 which made him ineligible for promotion.  DPSIM recommends denial of the applicant’s request to remove his two LORs, and DPSID recommends denial of his request to remove his referral EPR.  Recommend denial of the applicant’s request for reinstatement of his promotion eligibility.  

A complete copy of the AFPC/DPSOE evaluation is at Exhibit G.

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  Commanders are granted wide latitude in administratively addressing shortcomings in the military personnel under their command.  This includes the Selective Reenlistment Program (SRP) which, per AFI 36-2606, Reenlistment in the United States Air Force, paragraph 2.2, invests commanders with “total SRP selection authority.”  The applicant’s procedural rights appear to have been complied with in each administrative action.  On 16 Oct 12, the applicant’s commander opened an Unfavorable Information File (UIF) on him, and placed him on a Control Roster.  

Through counsel, the applicant claims reporting his arrest to his security officer would have violated the prohibition against self-incrimination enshrined in the Fifth Amendment.  The applicant argues the duty to report the arrest was non-punitive.  This contention clearly is not at issue as DoD Regulation 5200.2-R, paragraph C9.1.4 is not punitive.  Rather, the requirement to notify a security officer is to allow for the assessment of continued access to classified information.  At most, the assessment could result in a security clearance being removed—but not confinement, fine, or other criminal penalty.  The applicant’s argument rests heavily on a prior court case which invalidated criminal punishment for failing to report a DUI arrest, but none of the administrative actions taken in the applicant’s case were criminal processes or exposed him to criminal punishment.  Challenges in court which attempted to establish that administrative hearings were violations of an individual’s Fifth Amendment rights have repeatedly failed due to the administrative nature of the activity.  On 4 Feb 13, the applicant was demoted from the grade of Staff Sergeant (SSgt) to Senior Airman (SrA). However, based upon his request, his rank of SSgt was restored but none of his other administrative actions were changed.  On 11 Mar 13, in response to a request from the applicant, his referral EPR was amended to remove reference to the DUI, however, the EPR remained an overall “3” based upon the applicant’s failure to report his arrest to his security officer.  That said, while legal and within their discretion, several decisions by the applicant’s commander were fairly non-traditional:  1) The duty to report the arrest is a reasonable interpretation of DoD Regulation 5200.2-R, paragraph C9.1.4, but the duty is not explicitly described.  This paragraph requires individuals with a security clearance to monitor and report a large list of very general criteria that determine eligibility for a clearance; and, 2) The applicant’s acquittal at trial on DUI and related Blood Alcohol Content charges would typically have resulted in the removal of the 23 Oct 12 LOR, since it was based solely on the civilian DUI charge.  This is simply the traditional treatment—but not required in the LOR setting.  The applicant’s commander was not required to decide the matter at the criminal trial’s much higher “beyond a reasonable doubt” burden of proof.  Thus, the actions being challenged by the applicant are within the legal requirements and may stand as administered.   

A complete copy of the AFPC/JA evaluation is at Exhibit H.


APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 28 Aug 15 for review and comment within 30 days (Exhibit I).  As of this date, no response has been received by this office.


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.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2014-01988 in Executive Session on 29 Sep 15, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 2 May 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSID, dated 29 Sep 14.
	Exhibit D.  Memorandum, AFPC/DPSIM, dated 6 Jun 14.
	Exhibit E.  Memorandum, AFPC/DPSOA, dated 13 Jun 14.
	Exhibit F.  Memorandum, AFPC/DPSOR, dated 17 Jun 14, w/atch.
	Exhibit G.  Memorandum, AFPC/DPSOE, dated 7 Oct 14.
	Exhibit H.  Memorandum, AFPC/JA, dated 25 Nov 14.
	Exhibit I.  Letter, SAF/MRBR, dated 28 Aug 15.