RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04045 COUNSEL: HEARING DESIRED: YES ____________________________________________________________ APPLICANT REQUESTS THAT: 1. His involuntary, administrative separation be withdrawn and he be reinstated to active duty in the United States Air Force. 2. His Letter of Reprimand (LOR) be removed from his record. ______________________________________________________________ APPLICANT CONTENDS THAT: The nonjudicial punishment he received in December 2010 was unfair in that, as an alleged unintended consequence, it rendered him ineligible to test for promotion to the next rank before he was otherwise required to separate from the active service due to reaching his High-Year-of-Tenure (HYT) Date. In addition, his rater was not allowed by his unit commander to use his best judgment in rating his Enlisted Performance Report (EPR) rendered for the period 30 December 2009 through 29 December 2010. In support of his appeal, the applicant provides copies of his LOR; Article 15 documentation; numerous character references; his HYT Extension Request; awards; letters of appreciation; Community College of the Air Force Diploma; certificates of achievement; electronic communications; an excerpt of Air Force Instruction (AFI) 51-202, Supplementary Actions; and a Mitigation of Nonjudicial Punishment package with attachments. The applicant’s complete submission, with attachments, is at Exhibit A. ____________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who enlisted in the Regular Air Force in the grade of airman basic (E-1) on 24 July 2001. He served as a Structural Craftsman and was progressively promoted to the grade of staff sergeant (E-5). On 18 November 2004, the applicant received nonjudicial punishment for driving while under the influence of alcohol. He received punishment consisting of reduction to the grade of airman first class (E-3), suspended until 28 April 2005; forfeiture of $450 pay per month for two months; and a reprimand. In the summer of 2010, the applicant received an LOR for being involved in a verbal altercation with a local National by exchanging racial comments and by acting in an unprofessional manner in violation of Article 134 of the Uniform Code of Military Justice (UCMJ), Disorderly Conduct. On 30 December 2010, the applicant received nonjudicial punishment for being drunk and disorderly, resisting arrest, and assaulting an Air Force Security Forces officer. He received punishment consisting of reduction to the grade of senior airman (E-4), with a new date of rank of 10 December 2010; 45 days extra duty; and a reprimand. The applicant was honorably discharged on 24 July 2011 in the grade of senior airman for reasons of reaching his HYT Date. His narrative reason for separation indicates “Reduction in Force.” He served 10 years and 1 day on active duty. The remaining relevant facts, extracted from the applicant’s military service records, are contained in the evaluations by the Air Force offices of primary responsibility at Exhibits C through F. ____________________________________________________________ AIR FORCE EVALUATIONS: AFLOA/JAJM recommends denial. JAJM states the applicant does not allege an error in how the Article 15 was processed. He rather alleges an injustice in that, his commander failed to understand the consequences of the imposed Article 15 punishment of reduction in rank; which, subsequently forced him out of the military. However, a review of the Air Force Form 3070, Record of Nonjudicial Punishment Proceedings, indicates the applicant’s rights were observed throughout the process of the Article 15. The commander at the time of the Article 15 had the best opportunity to evaluate the evidence in the case and weigh it against the applicant’s written response and verbal presentation. There is no evidence, apart from the applicant’s assertions, that the commander did not appreciate the administrative consequences of the punishment he imposed. The commander exercised the discretion that the applicant granted him when the applicant accepted the Article 15 and, found nonjudicial punishment appropriate in this case. The legal review process showed the commander did not act arbitrarily or capriciously in making his decision. The complete JAJM evaluation is at Exhibit C. AFPC/DPSIMC recommends granting the applicant’s request to remove his LOR. DPMSIMC states the applicant was issued an LOR for a verbal altercation with a local National. The applicant acknowledged receipt on 10 November 2010. The rebuttal was never submitted and the commander did not make a final decision to maintain or withdraw the LOR. Therefore, the LOR was not processed in accordance with AFI 36-2907, Unfavorable Information File Program. The complete DPSIMC evaluation is at Exhibit D. AFPC/DPSID recommends the EPR, closing 29 December 2010 not be removed. DPSID states that although the applicant does not specifically request that relief be granted to any applicable EPR, they provide comment and analysis regarding specific allegations the applicant has made regarding the EPR rendered for the period 30 December 2009 through 29 December 2010. DPSID indicates the applicant’s contentions that his rater was not allowed by his unit commander to use his best judgment in rating the contested EPR and that the commander and his rater eventually “compromised” on an overall “3” rating versus the referral “4” rating the commander initially sought to reflect on the contested report is without merit. The impetus is on the applicant to provide compelling evidence of any allegation he makes. Such compelling evidence would be in the form of signed statements from members of the rating chain that rendered this EPR; however, any such statements are conspicuously absent in this appeal. In regard to the applicant’s allegation that the rater was coerced by the unit commander, to secure a rating the commander wished the rater to make is a serious allegation, and as such, demands a high standard of proof to substantiate. The applicant has provided unsupported allegations, personal opinions, and absolutely no proof that this event occurred as described. As such, they dismiss this allegation and find it to be without merit. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The applicant has not substantiated in any way that the contested EPR was not rendered in good faith by all evaluators based on the knowledge available at the time and, not rendered in accordance with all applicable policies and procedures. The complete DPSID evaluation is at Exhibit E. AFPC/DPSOE provides information only. DPSOE states that in accordance with separation policies at the time, if a member with less than ten years of active service was demoted to the rank of senior airman, their HYT was adjusted to the ten-year point. In the applicant’s case, his Total Active Federal Military Service Date (TAFMSD) was 24 July 2001, and he was demoted to senior airman effective 10 December 2010 (just over nine years active service). Therefore, his HYT was adjusted to 24 July 2011 and he became ineligible for promotion consideration during promotion cycle 11E5. In order to be eligible for promotion consideration for staff sergeant during promotion cycle 11E5, a member’s date of separation or retirement date had to be 1 September 2011 or later. In accordance with Air Force Instruction 36-2502, Table 1.1, Rule 1, if on or after the promotion eligibility cutoff date, and the airman is serving in the grade of senior airman to staff sergeant, then the airman is ineligible for promotion during a particular cycle when he or she had a mandatory date-of- separation, HYT, or an approved retirement before the first day of the month promotions are incremented in that cycle (1 September 2011 for cycle 11E5). Therefore, the applicant was ineligible for promotion consideration to staff sergeant during promotion cycle 11E5 due to his mandatory separation date. The complete DPSOE evaluation is at Exhibit F. ____________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS: Copies of the Air Force evaluations were forwarded to the applicant on 12 April 2012 for review and comment within 30 days (Exhibit G). As of this date, this office has received no response. ______________________________________________________________ THE BOARD RECOMMENDS THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate an error in regard to the applicant’s request to void and remove his contested LOR. We note that AFPC/DPSIMC recommends granting the applicant’s request to void and remove his LOR from his record due to the fact the LOR was not processed in accordance with AFI 36-2907. Based on the foregoing, we concur with DPSIMC’s recommendation to void and remove the contested LOR. In regard to the applicant’s request to have his administrative separation withdrawn and to be reinstated to active duty, we find insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We note the applicant alleges that the nonjudicial punishment he received in December 2010 was unfair in that, as an alleged unintended consequence, it rendered him ineligible to test for promotion to the next rank before he was otherwise required to separate from active service. After a thorough review, the record does not reveal, nor has the applicant provided, any evidence that would lead us to believe that the contested nonjudicial punishment, or the subsequent involuntary separation, was unintended on the part of the imposing commander. Therefore, in view of the above, we agree with the opinion and recommendation of AFLOA/JAJM that the applicant’s involuntary separation does not constitute an error or injustice. Accordingly, that portion of the applicant’s request is not favorably considered. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that his Letter of Reprimand, issued for a verbal altercation with a local National be voided and removed from his record. ____________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04045 in Executive Session on 28 June 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence for AFBCMR Docket Number BC-2011- 04045 was considered: Exhibit A. DD Form 149, dated 28 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 1 Dec 11. Exhibit D. Letter, AFPC/DPSIMC, dated 5 Jan 12. Exhibit E. Letter, AFPC/DPSID, dated 13 Feb 12. Exhibit F. Letter, AFPC/DPSOE, dated 2 Apr 12. Exhibit G. Letter, AFBCMR, dated 12 Apr 12.