RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03736 INDEX CODE: 131.00 XXXXXXXXXXXXXXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His date of rank (DOR) to staff sergeant (SSgt) (E-5) be backdated from 1 October 2004 to 1 April 2003, and he be reimbursed lost base pay and basic housing allowance. _________________________________________________________________ APPLICANT CONTENDS THAT: Since his civilian criminal charges for driving under the influence of alcohol were dismissed on 13 June 2003, his commander had no reason to issue him a Letter of Reprimand (LOR), place him on the control roster (CR), and create an Unfavorable Information File (UIF). In support of his appeal, the applicant provides copies of the court document dismissing his case and promotion notification documents from the 02E5 and 04E5 SSgt promotion boards. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: According to the Military Personnel Data System (MilPDS), the applicant is currently serving on active duty in the Regular Air Force in the grade of SSgt with a date of rank of 1 October 2004. He has a Total Active Federal Military Service Date of 24 June 1998 and a projected date of separation of 30 September 2012. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOE recommends denial of the applicant’s request to adjust his date of rank to SSgt to 1 April 2003. DPOSE indicates he was tentatively selected for promotion to SSgt during cycle 02E5. He received a promotion sequence number of 1272.0.0 which would have incremented on 1 April 2003; however, his promotion was cancelled on 19 February 2003 due to his placement on the control roster. He was also ineligible for promotion consideration during cycle 03E5 as he was still on the control roster as of the promotion eligibility date for that cycle (31 March 2003). He was subsequently considered and selected for promotion to SSgt during cycle 04E5. DPSOE states that since UIF/control roster documents are removed from records and destroyed at the end of the disposition period (six months), they cannot site the reasoning for the establishment of his UIF. His commander was in the best position to evaluate the applicant’s potential and eligibility for promotion, and acted within his authority when he decided to place the applicant on the control roster. The complete DPSOE evaluation is at Exhibit B. AFPC/DPSI recommends the applicant’s request be denied. DPSI states there are no LOR/CR/UIF documents provided by the applicant and these documents were removed and destroyed at the end of the disposition period (CR, six months and UIF, one year). Their office contacted the applicant’s applicable base to verify whether or not a UIF existed, but confirmed the UIF had long since been destroyed. No UIF exists at the applicant’s current duty station. Since documentation no longer exists and was not provided, they cannot site whether or not the UIF was administered correctly. The complete DPSI evaluation, with attachment, is at Exhibit C. AFPC/JA recommends the applicant’s request be denied. JA states that in the absence of documentation, which was properly destroyed in the intervening years since the apparent dismissal of the charges against the applicant, it is impossible to ascertain exactly what happened. According to the applicant, sometime before 1 April 2003, the date on which he apparently would have sewed on the rank of SSgt, he was charged with driving under the influence of alcohol. He indicates that he was detained and charged by the Belleville, Illinois police. Apart from his assertion, the file contains no record of crime with which the Illinois police charged him. According to the applicant, sometime after 13 June 2003, upon learning of the dismissal, his squadron commander requested an LOR, CR, and UIF be created which lead to the loss of the applicant’s SSgt line number with a promotion date of 1 April 2003. Without copies of the commander’s actions, it is impossible to ascertain an accurate sequence of events, and without an accurate sequence of events, it is impossible to determine whether an error or injustice occurred. In addition, the applicant’s own account of the sequence of events contradicts his own chronology. JA indicates the 13 June 2003 court dismissal provided by the applicant indicates “with leave to reinstate over defendant’s objection.” Therefore, the prosecutor could reinstate the charge at a later date even if the defendant (applicant) objected. Such a result clearly does not mean the applicant did not drive drunk. Rather, it simply means the court removed the case from the docket and allows the prosecutor to reinstate it later. Very different from saying he was not guilty. Even if there had been a finding of “not guilty,” the commander’s actions could very well have been perfectly proper, given the differing burdens in criminal and administrative cases. There could have been evidentiary problems that would have derailed a criminal prosecution but would have had no effect on an administrative procedure like an LOR. Whatever the case, the applicant has the burden of proof in this process, and he has submitted no evidence whatsoever to fill the gaps in the record. Imposition of an LOR, a CR action, and establishing a UIF are all standard command actions taken when an airman drives under the influence of alcohol. Those actions are entitled to the presumption of regularity in the absence of evidence to the contrary. It is JA’s opinion the applicant has failed in his burden to prove a material error or injustice warranting a correction of his record. The complete JA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 9 January 2009 for review and response within 30 days. As of this date, this office has received no response. _________________________________________________________________ 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 an 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 and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling 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 this application in Executive Session on 24 March 2009, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-03736: Exhibit A. DD Form 149, dated 29 Sep 08, w/atchs. Exhibit B. Letter, AFPC/DPSOE, dated 30 Oct 08. Exhibit C. Letter, AFPC/DPSI, dated 14 Nov 08, w/atch. Exhibit D. Letter, AFPC/JA, dated 24 Dec 08. Exhibit E. Letter, SAF/MRBR, dated 9 Jan 09. Panel Chair