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Commander hoped to make example of failing NCO

Dec. 22, 2012 - 10:09AM   |   Last Updated: Dec. 22, 2012 - 10:09AM  |  
Maj. Rich Flamand, 325th Maintenance Operations Squadron Commander.
Maj. Rich Flamand, 325th Maintenance Operations Squadron Commander. (Senior Airman Veronica McMahon / Air Force)
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Lt. Col. Richard Flamand had a decision to make.

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Lt. Col. Richard Flamand had a decision to make.

Already, 42 of the 447 airmen under his command in the 96th Aircraft Maintenance Squadron at Elgin Air Force Base, Fla., had failed their fitness assessment at least once.

But that wasn't the worst of it: In October, Flamand received sworn statements from two of his junior airmen alleging that one of the airmen on his list of physical training flunkers — a noncommissioned officer — had intentionally failed and bragged about a scheme to get out of his service commitment and collect nearly $10,000 in separation pay, too.

The suggestion that an NCO would sandbag his PT test was enough to send Flamand to his local staff judge advocate.

And that's how Staff Sgt. Coty Ferguson, an F-16 crew chief with the 96th, ended up facing a special court-martial on charges that his actions violated Article 134 of the Uniform Code of Military Justice and were prejudicial to good order and discipline.

A jury of five officers found Ferguson not guilty Dec. 14, but the case could set a precedent for other commanders to follow — a fact that drew both rants and raves from Air Force Times readers on Facebook and on airforcetimes.com.

"Did they ever consider that MAYBE he was ‘bragging' about it because he was embarrassed to admit that he actually couldn't pass?" Celeste Trudeau Lawinger posted in response to comments on Facebook. "I knew some airmen who would make it out to seem like they didn't care about something or that they were happy with their results just to save face. A court-martial over a PT test is going way too far!"

Alex Smith, on Facebook, disagreed: "He should have been booted out with a dishonorable discharge on grounds of intentionally defrauding the government of benefits and service commitment."

Flamand declined requests for an interview, but his court-martial testimony revealed an officer who was convinced that the allegations, if true, could harm the rest of his command.

"There is a trust factor that is violated," Flamand said in court. "It goes pretty deep."

Demotions loophole

Flamand, a prior enlisted airman turned officer, testified during the court-martial that he took command of the 96th on June 25, and he didn't waste time making his expectations known to the squadron, which was twice the size of his previous command.

He did what he typically did in a new command. He issued updated policy letters, including one that spelled out his expectations for PT. In that policy letter, Flamand outlined for airmen what actions he was likely to take if they failed their PT tests in a 24-month period.

A first failure would get an airman a letter of counseling, a second failure a letter of reprimand, a third failure an administrative demotion and a fourth failure an administrative discharge. Failing more than once also would initiate verbal counseling with him.

Of his record on demoting airmen after their third PT failure, Flamand said, "It's not something that was automatic, but I am likely to make a demotion recommendation on the third failure."

Flamand's policy is based on the multitude of disciplinary actions the Air Force prescribes for commanders under Instruction 36-2905. Under the instruction, commanders have "complete discretion in selecting the responsive action(s)." Commanders are allowed to choose more than one action but are cautioned to consult their staff judge advocate.

Flamand's propensity for demoting PT flunkers led Ferguson to do a little research. According to court-martial testimony, Ferguson learned that he would face immediate dismissal under high-year tenure rules if he were busted down to senior airman because he already had been in the service for eight years, the maximum time allowed at that rank. Senior airmen who are involuntarily separated under high-year tenure receive separation pay.

Two of Ferguson's subordinates testified that he bragged that this would be his ticket out of the Air Force. Ferguson said his comments were taken out of context. He said he worried his chronic back problems and lack of fitness would cause him to fail the PT test, and that's why he started considering his options after the Air Force.

Influencing others

Flamand said he preferred the charges against Ferguson out of concern that a seed had been planted, or would be planted, in the minds of other airmen who might have been struggling to pass the PT test. Airmen testified at Ferguson's court-martial that they didn't know anything about what would happen if they were administratively demoted and facing a high-year tenure separation.

He said he believed if Ferguson had indeed said and done what he'd been accused of and been allowed to get away with it, other airmen might attempt the same thing.

"The evidence was a significant factor in determining what to do," Flamand said. "If he intended to fail and the statements made to his subordinates were true and he was relying on me to demote him and that he would receive in excess of $10,000, then maybe others would have similar thoughts and try to game the system."

Flamand said if an airman would intentionally fail his PT test, he wondered what other responsibilities he might intentionally fail to perform.

"That affects good order and discipline," he said.

Wrong charges?

But the jury of five officers wasn't convinced that Ferguson had prejudiced good order and discipline. They returned the not-guilty verdict after less than 40 minutes of deliberation.

And at least one attorney said he's not surprised that Ferguson wasn't convicted. Flunking a PT test isn't a crime and shouldn't be treated as one, said James Klimaski, a Washington, D.C.-based private attorney and former first lieutenant in the Army. Court-martialing Ferguson probably put more spotlight on how someone could intentionally fail the PT test and still collect benefits than if he'd received some form of nonjudicial punishment.

He said when one takes into account how much time and money the service has made in training a F-16 mechanic and NCO, adhering blindly to a policy and allowing no exceptions might be a flawed approach. He said letting the lawyers work out a problem that should be handled by management is not leadership.

"You have to remember, you're dealing with people, not robots," Klimaski said. "Commanders have to do their job and not let the lawyers do it. They're managers, and they need to deal with problems."

Houston-based private attorney Guy Womack, a retired Marine Corps lieutenant colonel, said he's participated in cases where a service member was accused of taking an action to cause an action — such as getting shot in the leg to avoid deployment. Those kinds of case are typically handled in special courts-martial, he said, but often the charge in those cases is malingering or even dereliction of duty, not prejudicial to good order and discipline.

Womack said depending on what the judge's instructions were to the jury, Ferguson could still be charged with anything he wasn't already tried for, or that the judge did not ask the jury to consider.

With the court-martial behind him, Ferguson returned to his job at the 96th on Dec. 17. Because he has failed his PT test three times, he must retake the test in January. He told Air Force Times the day he was acquitted that he hopes to transfer out Flamand's maintenance squadron and serve out his last two years.

Commander's surprise

Although Flamand acknowledged in testimony that his fitness policy is tougher than that of the squadron's previous commander, he said he never issued a verbal order to pass the fitness test. Nor had he ever court-martialed an airman for intentionally failing the test, although he'd speculated over his more than 20 years in the service that some airmen had sandbagged their fitness assessment or faked an injury to get out of taking it.

But he also said he never expected to be confronted with allegations that "a staff sergeant, an NCO, in the greatest Air Force on the planet" would purposely fail his PT test and then brag about it in front of his subordinates.

What Ferguson had been accused of doing, Flamand said, demonstrated "a shocking lack of integrity."

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