RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04992 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The 15 March 2011 and 10 April 2012 Letters of Reprimand (LOR) be removed from his records. 2. The Unfavorable Information File (UIF) and Control Roster actions be declared void and removed from his records. 3. His grade of staff sergeant (E-5) be restored. 4. His Reentry (RE) code of 2X (1st term, 2nd term or career airman considered but not selected for reenlistment) be changed to allow him reentry into military service. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His first sergeant had issues with him for unknown reasons since his arrival on station. Although he answered his inquiries truthfully, he was accused of lying. His spouse filed a complaint against the Army & Air Force Exchange Service (AAFES) in regards to price challenging. In retaliation of his spouse’s complaint, his command initiated an investigation against him by compiling a yearlong price checking match through AAFES against him. 2. He was forced to respond to allegations stated in a LOR issued on 10 April 2012 without being given an opportunity to review the evidence against him; specifically, the Report of Investigation (ROI). The investigation was unfounded and his command did not thoroughly investigate the allegations made by AAFES. He was repeatedly denied access to the report. He would have had a better chance to dispute the contents of the ROI, had he been given an opportunity to review the ROI. He believes actions were unjust and administered in a premeditative fashion. This is evident by the multiples errors, inaccuracies, unfounded and contradictory claims annotated in the ROI. 3. His denial of reenlistment was done solely to ensure his participation in the Force Shaping Rollback Program because the action was initiated two years prior to his eligibility for reenlistment. The action was initiated by an individual who was relatively new to the squadron and did not know him. The superintendent who knew of his work ethic was asked to initiate the denial for reenlistment, but he declined to do so. 4. The only two unsatisfactory FA scores he received in nearly six years were added to the action taken against him to embellish a negative imagine of himself. His FA failures were due to an ankle injury he sustained. However, since those failures, he has successfully passed two FAs. His command chose the most severe non-punitive actions against him and he was informed by the military personnel flight (MPF) that these actions were going to go through, no matter what response he provided. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 14 September 2004. On 4 March 2011, the applicant participated in a fitness assessment (FA) and was only exempt from the cardio component. He attained a composite score of 61.00, constituting an unsatisfactory score, for which he received a letter of counseling (LOC) on 11 March 2011. On 11 March 2011, the applicant acknowledged receipt of the LOC and, on 14 March 2011, waived his right to respond. On 15 March 2011, the applicant was informed that the LOC would be maintained in his personnel information file (PIF). On 15 March 2011, the applicant received a Letter of Reprimand (LOR) for allowing his spouse to accompany him from Tyndall Air Force Base (AFB), Florida to Edwards AFB, California in violation of her probation and, when questioned on this fact, falsely stated he had a letter from his spouse’s attorney indicating the charges against her were dropped, in violation of Article 107 of the Uniform Code of Military Justice (UCMJ). On 15 March 2011, the applicant acknowledged receipt and elected to submit written comments. After considering the applicant’s response, his commander determined the LOR should be maintained and placed in the applicant’s PIF. On 20 May 2011, the applicant participated in a FA and was only exempt from the cardio component. He attained a composite score of 70.75, constituting an unsatisfactory score, for which he received a LOR. On 20 May 2011, the applicant acknowledged receipt of the LOR and elected to submit documents in support of his rebuttal response. On 24 May 2011, the applicant’s superintendent indicated he reviewed the applicant’s written matters in response to the LOR and decided to stand by his initial decision and he did not intend to place the LOR in a UIF. On 17 December 2011, the applicant’s spouse filed a complaint against AAFES because the price match challenge under $10.00 was not handled correctly. Specifically, the store manager violated corporate policy by verifying a price under $10.00, by calling the store. On 19 December 2011, the complaint was forwarded to the general manager because the applicant and his spouse were conducting fraudulent price challenges. On 2 February 2012, an incident notification was initiated against the applicant for the alleged incident of theft that occurred from 5 February 2011 through 10 October 2011 at multiple AAFES locations on Edwards AFB, CA, by fraudulently exploiting the AAFES price match challenge. On 21 February 2012, the applicant was made aware of the allegations against him. He invoked his right to legal counsel and refused to make an oral or written statement. On 28 February 2012, the United States Air Force Security Police’s Report of Investigation (ROI), in response to larceny and wrongful appropriation, and frauds against the United States, was closed and forwarded to the appropriate authorities for further action. On 9 April 2012, an AF Form 418, Selective Reenlistment Program (SRP) Consideration for Airmen in the Regular Air Force/Air Force Reserve, was issued indicating the applicant was not recommended for reenlistment. On 10 April 2012, the applicant acknowledged receipt of his notification of reenlistment eligibility. On 10 April 2012, the applicant received a LOR for conduct unbecoming of a Non-Commissioned Officer (NCO). Investigation disclosed that the applicant defrauded AAFES of $959.30 from February 2011 through October 2011 through fraudulently abusing the “price challenge” system by lying about off-base sales to receive discounts on base. On 10 April 2012, the applicant acknowledged receipt of the LOR and his intent to submit a statement. On 10 April 2012, the applicant was not selected for reenlistment. The applicant’s commander indicated his performance has been called into question. Between his FA failures and integrity issues by defrauding AAFES, the commander lost faith in the applicant and could not endorse his reenlistment. On 10 April 2012, the applicant’s commander notified him of his intent to recommend his demotion to the grade of senior airman (E-4). The specific reasons for the action were his failure to fulfill non-commissioned officer (NCO) responsibilities by fraudulently abusing the AAFES “price challenge” system and providing a false official statement in regards to bringing his spouse to California in violation of her probation. On 10 April 2012, the applicant acknowledged receipt of the proposed demotion action. On 10 April 2012, the applicant was issued an AF Form 1058, Unfavorable Information File Action (UIF), indicating the commander’s intent to establish a UIF and place him on the control roster based on the 10 April 2012 LOR for conduct unbecoming an NCO. On 10 April 2012, the applicant acknowledged receipt of the UIF/control roster and his intent to provide information to be considered before a final decision is made. On 16 April 2012, the applicant indicated that he consulted with counsel, he did not concur with the proposed demotion action, he elected to submit written materials on his behalf, and requested a personal hearing before the initiating commander. On 16 April 2012, the applicant submitted a response to the LOR. He indicated that he never knowingly or intentionally falsified any of the price challenges and that during some of this period he was a secret shopper for AAFES. The commander maintained the LOR and decided to establish the UIF to document any UIF/Control Roster decisions and place the applicant on the control roster. He filed the LOR in the UIF. On 19 April 2012, the applicant acknowledged receipt and understanding of the placement of the LOR in an UIF and his placement on the Control Roster. On an undated indorsement to the 10 April 2012 Notification of Demotion Action, the commander recommended that the applicant be demoted to the grade of E-4. The applicant did not concur with the proposed demotion action and presented matters on his behalf. On 20 April 2012, the applicant’s reenlistment eligibility code was updated from 1M (eligible to reenlist) to 2X. On 30 April 2012, the applicant appealed his denial of reenlistment. On 1 May 2012, the applicant was directed to be demoted to the grade of senior airman, effective 1 May 2012, with a date of rank (DOR) of 1 May 2012. On 7 May 2012, the applicant was briefed on the decision to process the proposed demotion action and acknowledged that he understood that he has been demoted to the grade of E-4, effective 1 May 2012, with a DOR of 1 May 2012. He indicated that he intended to appeal the decision. On 7 May 2012, the applicant requested a copy of the ROI in regards to a complaint made against him by AAFES. On 9 May 2012, the applicant’s request for a copy of the ROI was processed. On 9 May 2012, the applicant submitted an additional response to his denial of reenlistment and demotion action because he indicated that he just received the ROI. On 31 May 2012, the applicant’s appeal to the denial of his reenlistment was denied. On 31 May 2012, after review and consideration of the applicant’s appeal and supporting documentation to his demotion action, the applicant’s appeal was denied and he was directed to be demoted to the grade of senior airman. On 13 July 2012, the applicant filed an Article 138 complaint seeking redress from the wing commander and if not accepted forwarded to the next level, due to the investigation of a price matching scheme. He requested his rank to be restored, testing for technical sergeant (E-6) to be scored, denial of reenlistment overturned and his LOR/UIF and control roster rescinded, as well as, a permanent change in station (PCS). He requested to be placed on administrative hold so that he would not be forced out by the DOS rollback and a decision made on his redress. On 3 August 2012, the applicant filed an Article 138 complaint seeking redress from the United States Air Force Warfare Center Commander (USAFWC/CC), in which he sought redress because he was never given an opportunity to obtain legitimate facts regarding claims against him. He requested to be placed on administrative hold for time to submit a congressional complaint and retain a civilian attorney. On 12 August 2012, the wing commander denied the applicant’s request for redress, indicating the actions taken by the applicant’s squadron and group commander’s were supported by the evidence and were appropriate for his misconduct and inability to consistently uphold standards. On 26 August 2012, the USAFWC/CC concluded the applicant had no basis for redress and denied his request, also concluding the actions taken against him were not improper, arbitrary, capricious, or unfair and were within the legitimate authority of the squadron and group commanders. The applicant was informed that this would be the final action and any further documentation submitted would be returned. On 10 September 2012, the applicant responded to the USAFWC/CC, indicating it was only his intent to forward the Article 138 complaint to be placed on administrative hold. On 10 September 2012, the applicant filed an Article 138 complaint seeking redress from ACC/CC, indicating everything that he has provided in his defense had not been fairly considered. On 19 September 2012, by authority of the Secretary of the Air Force, his 3 August 2012 request for redress filed under Article 138 was denied as the actions taken by the command were determined to be appropriate to the circumstances. Therefore, the denial of the applicant’s request for redress was sustained and this constituted the final action on the applicant’s Article 138 complaint. On 26 September 2012, the USAFWC/CC, notified the applicant of the final action on his Article 138 complaint. The applicant was informed that there was no redress to his complaint and further documents submitted would be returned. On 29 September 2012, the applicant was furnished an honorable discharge, with a narrative reason for separation of “Completion of Required Active Service,” along with a separation program designator (SPD) code of “LBK” and RE code of “2X.” He was authorized severance pay and credited with 8 years and 16 days of total active service. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends denial, indicating the applicant’s LORs, UIF, and control roster were administered correctly and in accordance with AFI 36-2907, Unfavorable Information File (UIF) Program. These disciplinary actions are discretionary tools used by commanders and the applicant has provided no evidence of an error or injustice. A complete copy of the AFPC/DPSIM evaluation is at Exhibit C. AFPC/DPSOA recommends denial, indicating there is no evidence of an error or injustice with respect to his denial or reenlistment and resultant RE code as both were in compliance with the prescribing instructions. Based on the applicant’s placement on the control roster, he was identified as being eligible for the DOS rollback program. The majority of members separated under the rollback program receive early selective reenlistment consideration. In this case, the applicant’s commander made the decision to utilize the rollback guidance by non-selecting him for reenlistment. In accordance with AFI 36-2606, Reenlistments in the USAF, commanders have selective reenlistment selection or non-selection authority. The Selective Reenlistment Program (SRP) considers the members Enlisted Performance Report (EPR) ratings, unfavorable information from any substantiated source, the airman’s willingness to comply with Air Force standards and/or the airman’s ability (or lack thereof) to meet required training and duty performance levels. Also, the rollback program allows commanders to conduct early SRP consideration for airmen with certain reasons/codes and the applicant’s RE code 4I (serving on control roster) was one of the eligible RE codes for early reenlistment consideration. A complete copy of the AFPC/DPSOA evaluation is at Exhibit D. AFPC/DPSOE recommends denial, indicating the demotion action taken against the applicant was procedurally correct and there is no evidence there were any irregularities or that the case was mishandled in any way. The applicant was demoted from staff sergeant (E-5) to senior airman (E-4) due to his failure to fulfill his NCO responsibilities. The action taken was at the discretion of the applicant’s supervisors/commanders in accordance with AFI 36-2502, Airman Promotion/Demotion Programs, and, as such, the applicant should not be restored to the grade of staff sergeant (E-5). A complete copy of the AFPC/DPSOE evaluation is at Exhibit E. AFPC/DPSOR recommends denial, indicating there is no evidence of an error or injustice with respect to the reason for the applicant’s separation. Due to the applicant’s denial of reenlistment, he became eligible for the FY12 Enlistment DOS Rollback Program, along with his DOS/expiration of term of service being involuntarily accelerated. The applicant’s discharge was correctly administered on the basis of his RE code of 2X (denied reenlistment), the commander’s completion of the applicant’s selective reenlistment program (SRP), and the Personnel Services Delivery Memorandum (PSDM) 12-37, dated 20 April 2012. The effective date of the action which caused the eligibility condition, RE Code, is the determining factor for inclusion in the rollback program. Based on the documentation on file in the master personnel records, the discharge, to include his separation code and RE code, was consistent with the procedural and substantive requirements of the discharge manual and was within the discretion of the discharge authority. A complete copy of the AFPC/DPSOR evaluation is at Exhibit F. AFPC/JA recommends denial, indicating there is evidence to support each action taken against the applicant. Although the applicant’s request for relief does not appear to be based on a claim of error regarding the administrative procedures, he does claim there is no evidence to support the misconduct on which these particular actions were based. To the contrary, there is evidence to support the commander’s determination regarding the status of the applicant’s spouse. Also, he never provided documentation to substantiate that he did not provide false information. The FA assessments correctly reflected his exemption from the cardio portion and were not used against him as he suggests. The applicant was represented by counsel and responded to each action, as well as filed Article 138 complaints seeking redress for the wrongs he perceived to be taken against him. Nevertheless, his complaints were denied at multiple levels of command, with the Secretary of the Air Force taking the final action and denying his request for redress. Each commander and appellate authority acted well within their discretion in determining whether the evidence supported administrative action. Although the applicant may disagree with the evidence and actions taken, it does not equate to an error, but a disagreement. A complete copy of the AFPC/JA evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates his argument that things were regularly overlooked and the investigation was not substantiated. The administrative actions taken against him were not meant to be rehabilitative; if they were, he would not have been made eligible for early separation and less adverse actions could have been taken. He had an unblemished military record until his arrival to Edwards AFB, CA and had a confrontation with his first sergeant. In support of his response, the applicant provides an expanded statement and copies of documents supporting his assertion that the charges against his spouse were indeed dropped. A complete copy of the applicant’s response, with attachments, is at Exhibit I. ________________________________________________________________ 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 an error or injustice. After careful consideration of applicant's request and the available evidence of record, we find insufficient evidence of error or injustice to warrant corrective action. The facts and opinions stated in the advisory opinions appear to be based on the evidence of record and have not been adequately rebutted by the applicant. While the applicant has provided documentation indicating that charges against his spouse were dropped, which he believes should compel the removal of the 15 March 2011 Letter of Reprimand (LOR), said LOR did not form any part of the basis for the contested actions (i.e. Unfavorable Information File (UIF), Control Roster, demotion, denial of reenlistment). Ultimately, the applicant was denied reenlistment because his performance was called into question due to substantiated allegations of repeatedly defrauding the Army & Air Force Exchange Service (AAFES) and fitness assessment failures. Since he was denied reenlistment, the applicant was appropriately selected as a candidate for the date of separation (DOS) rollback program, resulting in his involuntary honorable discharge. In our view, the applicant was afforded full due process, to include multiple requests for redress under Article 138 of the Uniform Code of Military Justice (UCMJ), where the contested actions were subjected to scrutiny at multiple levels of command and repeatedly found to be legally sufficient and appropriate to the circumstances. Absent persuasive evidence the applicant was denied rights to which he was entitled, appropriate regulations were not followed, or appropriate standards were not applied, we find no basis to disturb the existing record. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2012-04992 in Executive Session on 30 Jul 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-04992 was considered: Exhibit A. DD Form 149, dated 19 October 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIM, dated 30 November 2012. Exhibit D. Letter, AFPC/DPSOA, dated 17 December 2012. Exhibit E. Letter, AFPC/DPSOE, dated 23 January 2013. Exhibit F. Letter, AFPC/DPSOR, dated 14 March 2013, w/atch. Exhibit G. Letter, AFPC/JA, dated 15 April 2013. Exhibit H. Letter, SAF/MRBR, dated 5 Nov 10. Exhibit I. Letters, Applicant, dated 1 May 2013 and 10 May 2013, w/atch.