RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-00872
		INDEX CODE:  112.02
		COUNSEL:  NONE

		HEARING DESIRED:  YES

MANDATORY COMPLETION DATE:  22 OCTOBER 2008

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APPLICANT REQUESTS THAT:

His administrative demotion to Staff Sergeant (SSgt) be revoked and that he be retired in the grade of Technical Sergeant (TSgt).

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APPLICANT CONTENDS THAT:

He was demoted to staff sergeant (SSgt) less than two years before his retirement.  He was a “Whistleblower.”   He worked through his chain of command for several years attempting to correct unsafe aircraft maintenance practices.  He wrote a letter to his flight chief that was degrading, insubordinate and disrespectful.  He received an administrative demotion which gave him no legal avenues to challenge.  If he were demoted under Article 15 action, he would have asked for a court-martial and the contents of his “Whistleblower” complaint would have been revealed.  The contents would have been embarrassing to his wing because of his attempts to resolve the issue at the lower level.  After his demotion, his continued devoted service resulted in his section receiving a zero defect during their ORI.  

While preparing for retirement, he formally requested to be retired in the grade of technical sergeant (TSgt).  His request was accepted; however, with a reinstatement date of May 13, 2013.  His demotion was a great embarrassment during his retirement and he has lost thousands of dollars over the past five years.  He gave his heart and soul to his service and is now a disabled veteran.

In support of the application, the applicant submits his personal statement and a copy of his grade determination notice.

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

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STATEMENT OF FACTS:

On 27 Nov 01, the applicant was notified by his commander of his intent to recommend he be administratively demoted IAW AFI 36-2503, Administrative Demotion of Airmen, paragraphs 3.3, 7.1, and 7.4 for Failure to Fulfill NCO Responsibilities.  His reasons for this action were as follows:

	a.  On 14 Oct 99, the applicant transmitted pornographic material to a government electronic mail account.  For this incident, he received a letter of reprimand (LOR) and an unfavorable information file (UIF) was established.  He also received a referral Enlisted Performance Report (EPR).

	b.  On 12 Feb 01, he submitted a letter concerning various maintenance discrepancies without using his chain of command.  His claims were not substantiated; nevertheless, he submitted another letter disagreeing with the findings; again, without using his chain of command.  In addition, he threatened to forward his complaint to the National Transportation Safety Board, The Washington Post, and the New York Times.

	c.  On 19 Mar 01, he delivered a letter which claimed he would not be reporting “any problems of any nature” to his flight level supervisor.  For this offense, he received a Letter of Counseling (LOC).  In response to the LOC, among other things, he threatened to take his concerns to the Department of Defense and Department of the Air Force headquarters and file charges against anyone who issued him an unlawful order.

	d.  On 20 Mar 01, he wrote a letter to a senior officer alleging instances of maintenance malpractice bypassing his chain of command.

	e.  On 2 May 01, he attempted to circumvent his chain of command when he improperly called a senior officer to report a perceived maintenance malpractice.  For this incident, he received an LOR.  In his response to the LOR, he stated that he “would do exactly the same things.”

	f.  On 10 May 01, he wrote a memo alleging his supervisor had issued him an unlawful order when he ordered him to use his chain of command.  

	g.  On 29 Oct 01, he sent a memorandum to a CMSgt containing disparaging comments concerning his integrity and character.

On 17 Dec 01, the staff judge advocate reviewed the case file and found it legally sufficient to support the applicant’s demotion.  On 4 Jan 02, the convening authority directed the applicant be demoted to the rank of SSgt.

The applicant was demoted to the grade of SSgt with an effective date of rank of 4 Jan 02.
On 1 June 2003, the applicant was honorably retired in the grade of SSgt.  His narrative reason for separation is listed as Maximum Service or Time in Grade.  He served 20 years and 13 days on active duty.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C and D. 
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AIR FORCE EVALUATION:

HQ AFPC/DPPRRP recommends denial.  DPPRRP states in a Special Order dated 9 Jan 02, the applicant was demoted from the permanent grade of TSgt to the permanent grade of SSgt effective and with a date of rank of 4 Jan 2002, for “failure to keep fit [sic].”  On 23 Jan 02, the applicant was permitted to extend his enlistment from 1 Mar 03 to 1 Jun 03 to qualify him for retirement in the grade of SSgt.  His High Year Tenure (HYT) date in the grade of SSgt was 18 May 03.  In accordance with Air Force policy, HYT for SSgt is 20 years.  DPPRRP affirms there is no provision in law to allow an enlisted member to be retired in any higher grade than that which he holds on the date of his retirement.  

DPPRRP states the reason given for demotion on Special Order (SO) AA-001, “failure to keep fit,” differs from that of the rater on the EPR for the period 11 Mar 01 thru 10 Mar 02,” repeated disobedience.”  The rater, a MSgt, and the additional rater, a SMSgt, may have not known that the reason for the applicant’s demotion was “failure to keep fit” because, under AFI 36-2503, para 2.1, only a group commander or equivalent commander may demote members in the grade of MSgt and below.  DPPRRP concludes in the absence of any other evidence, the reason for the demotion given on the SO takes precedence and because EPRs also indicate that the applicant was having difficulty meeting fitness standards.  

The complete DPPRRP evaluation, with attachments, is at Exhibit C.

HQ AFPC/JA recommends denial.  JA states the Whistleblower Protection Act and implementing regulations go further in safeguarding those individuals who make “protected communications” to certain officials.  A protected communication is one in which a member communicates information that he reasonably believes evidences a violation of law or regulation, including mismanagement, an abuse of authority, or a substantial and specific danger to public health or safety.  Reprisal is prohibited against an Airman who makes a protected communication to his commander.  After a thorough review of the applicant’s personnel records and the information submitted in support of his application, there is no evidence of a protected communication made by the applicant.  Until now, the applicant did not assert any sort of justification to his misconduct or concern regarding aircraft maintenance practices.

JA notes the procedural due process afforded under the demotion regulation includes notice, an opportunity to consult legal counsel, an opportunity to respond and appellate review.  In this case, the basis used for demotion was failure to keep fit based on his progress in October 2001.  Although the applicant now alleges the demotion was wrongful, he presents no evidence that the basis for demotion was erroneous or unjust.  Based on his disciplinary history, specifically the use of government resources to send pornographic materials, a demotion would be measured and reasonable response to continued disciplinary infractions or failure to meet standards.

The complete JA evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response dated 19 May 07, the applicant reiterates many of his earlier comments and states he has copies of all the surrounding documentation.  He was told if he contested his referral EPR that he would receive another demotion.  He was on the Weight Management Program (WMP), but was taken off after he made progress.  His weight gain was caused by medication.  His doctor wrote and explained this to his commander and he was waived from the program.  After he became a “Whistleblower” he was placed back on the WMP.  He was eventually removed from the program and he never failed a fitness test.  

He used his chain of command but when it became obvious that no one was going to correct the problems, he went up the chain.  He notified his supervisors in writing that he was going over their heads.  He was given orders to falsify aircraft documents which he refused.  He requested and received character reference letters from everyone in his squadron.  

The applicant’s complete submission is at Exhibit E.
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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We note the applicant's allegations of reprisal activity were investigated by his Major Command Inspector General (IG), but not substantiated, and was concurred with by both the Secretary of the Air Force IG and Department of Defense IG.  After our review of the complete evidence of record, we also agree the applicant has not been the victim of reprisal.  Consequently, we find no error or injustice in the applicant’s demotion from technical sergeant to staff sergeant.  Additionally, we are not persuaded the applicant should be restored to his former grade prior to his advancement on the retired list in 2013, as determined by the Secretary of the Air Force Personnel Council.  Therefore, based on the aforementioned, we find no basis upon which to favorably consider 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.

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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.
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The following members of the Board considered AFBCMR BC-2007-00872 in Executive Session on 13 Sep 07, under the provisions of AFI 36-2603:

	XXXXXXXXXX, Vice Chair
	XXXXXXXXXX, Member
	XXXXXXXXXX, Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 14 Mar 07, w/atch.
	Exhibit B.  Applicant’s Master Personnel Records.
	Exhibit C.  Letter, HQ AFPC/DPPRRP dated 5 Apr 07 w/atchs.
	Exhibit D.  Letter, HQ AFPC/JA, dated 27 Apr 07
	Exhibit E.  Letter, SAF/MRBR, dated 4 May 07.
	Exhibit F.  Letter, Applicant, dated 19 May 07

                                   XXXXXXXXXX
                                   Vice Chair