RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02315 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His rank of E-5 (Staff Sergeant) be restored. _________________________________________________________________ APPLICANT CONTENDS THAT: He was reduced to the grade of E-3 (Airman First Class) because he was absent from a number of drills. During the time in question, he was faced with dire financial problems and the potential of losing his home. His absence from the drills is valid. In addition, he requested equivalent training in lieu of the drills, but was denied without reason. He requested approval for excused absence from a number of drills so that he could get his personal finances in order. He respectfully requested he be allowed to conduct his upcoming weekend drills during the week so he could work other jobs during the weekend to gain additional income. He planned to use the additional income to become current on his mortgage payments. Instead of merely approaching his commander with a problem, he proposed a solution to the problem. Despite his efforts to resolve his financial dilemma without significantly interfering with his military duties, his request was denied without substantive explanation or reason. He, therefore, made the decision to put his family first and absented himself from weekend drills so that he could work other higher paying jobs. Subsequently, he was able to become current on his mortgage payments and save his house for his family. In support of his request, the applicant submits a six-page statement from his counsel and various letters and electronic mail messages. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant’s NGB Form 22, National Guard Bureau Report of Separation and Record of Service, indicates the applicant was discharged from the Air National Guard on 15 Oct 10. He was credited with nine years of military service. On 24 Mar 11, the applicant’s counsel requested the case be administratively closed (Exhibit E). On 14 Dec 11, the case was reopened, per his counsel’s request. _________________________________________________________________ AIR FORCE EVALUATION: NGB/A1POE recommends denial. A1POE notes the following: 1. On 24 Nov 08, the applicant was notified of the reasons why his request to perform Rescheduled Unit Training Assembly (RUTA) was denied. He was informed that requests for RUTA would not be approved for any individuals that are due any requirements (normal UTAs). In addition, the member is required and expected to report to drill in accordance with Special Order G-095-DC. 2. On 5 Dec 08, the applicant notified an official within his unit that he would not be present for drill or report for duty in April. Members do not determine when/if they will show up for a Unit Training Assembly (UTA). In addition, members are ordered to attend UTA unless they have an authorized excuse for absence. The applicant’s statement that “he could make more money working another job rather than report for military duty” is not a valid excuse for missing a UTA period. 3. A1POE opines the applicant’s reasons for not reporting to duty are not valid. His financial problems could have resulted in the loss of his security clearance. Resources to help members with financial problems are available; however, it is not known if he queried his supervisor, first sergeant or commander for help prior to his receipt of the default notifications. 4. On 18 Feb 09, the applicant was notified of his pending discharge from active duty. While counsel argues the applicant requested an administrative separation board because there was not enough evidence to prove his misconduct, no documentation was submitted to substantiate this claim. The discharge action was stopped and has no bearing on any other administrative action taken, i.e., his demotion. 5. The applicant received four separate notifications concerning missed drills. Counsel states the applicant “…absented himself from weekend drills so that he could work other higher paying jobs.” However, it should be noted that many traditional guard members give up the opportunity to earn more money on UTA weekends. The applicant signed a contract to be a member of the Air National Guard and was ordered to attend drills; however, he chose not to and further did not respond to the notifications from his commander. His claim that other airmen “…were permitted excused absences…for less serious situations…” is not substantiated by facts or evidence to show disparate treatment. 6. The applicant’s response to the intent to demote is not included. The notification appears to be sufficient and he was provided with legal counsel. The demotion order is correct and includes the reasons for his demotion. The complete A1POE evaluation is at Exhibit B. NGB/A1PS concurs with the recommendation provided by A1POE. A1PS evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In his four-page statement, the applicant’s counsel reiterates many of his earlier contentions. The applicant never contended his financial circumstances excused his attendance at his assigned UTA; however, feels he was between a rock and a hard place. His circumstances were misunderstood in regards to the revocation of his security clearance. He demonstrated exceptional responsibility in remedying his financial circumstances during a time which the country faced an unprecedented level of mortgage foreclosures. He is not in the best position to provide documentation to support his contention that other airmen were permitted excused absences; however, he does provide excerpts from the attendance roster. Despite his nine years of exceptional service, his proactive and admirable efforts to save his family and his home resulted in his demotion in rank to the grade of E-3 on account of absences beyond his control. It is a continued injustice not to restore his rank to E-5 when the Board considers the totality of the circumstances. The counsel’s rebuttal, with attachments is at Exhibit G. _________________________________________________________________ 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 error or injustice. We took careful 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 the applicant has not been the victim of an error or injustice. While counsel argues that it is a continued injustice not to restore the applicant’s rank, he has not provided persuasive evidence which would lead us to believe that the demotion action taken by his commander was overly harsh; beyond his scope of authority or that he abused his discretionary authority in taking this action. Therefore, we find no basis to disturb the record. Counsel states the attendance roster he provides demonstrates the applicant was treated differently than others similarly situated; however, we do not find it sufficiently persuasive in this matter. In view of the totality of the circumstance in this case, it is our opinion the applicant has failed to sustain his burden of the existence of an error or an injustice. In the absence of persuasive evidence to the contrary, 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 this application in Executive Session on 20 Feb 13, under the provisions of AFI 36- 2603: The following documentary evidence was considered in AFBCMR BC- 2010-02315: Exhibit A. DD Form 149, dated 17 Jun 10, w/atchs. Exhibit B. Letter, NGB/A1POE, dated 15 Jul 10. Exhibit C. Letter, NBG/A1PS, dated 9 Aug 10. Exhibit D. Letter, SAF/MRBR, dated 20 Aug 10. Exhibit E. Letter, Applicant’s Counsel, dated 24 Mar 11 Exhibit F. Letter, AFBCMR, dated 25 Mar 11. Exhibit G. Letter, Applicant’s Counsel, dated 14 Dec 11, w/atchs.