RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01655 COUNSEL: NONE HEARING DESIRED: NOT INDICATED APPLICANT REQUESTS THAT: 1. His Referral Enlisted Performance Report (EPR), rendered for the period 3 August 2012 through 2 August 2013, be removed from his records. 2. Letter of Reprimand (LOR) and Unfavorable Information File (UIF) be removed. 3. His demotion to senior airman (SrA) be removed and he be restored to the rank of staff sergeant (SSgt). APPLICANT CONTENDS THAT: He received an LOR/UIF and an administrative demotion for an alleged DUI. He was denied the Weighted Airman Promotion System (WAPS) testing and his base driving privileges were revoked for one year. He was found not guilty of the DUI and this was the sole reason for the LOR/UIF and demotion. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 23 November 1999. On or about 30 January 2013, the applicant was pulled over by a Tucson police officer for speeding. The officer smelled alcohol on the applicant's breath and administered a breathalyzer test in which the results were .123, well over the legal limit of .08. The case was reviewed in a court of law and determined that the police officer did not have reasonable suspicion to stop the applicant for exhibition of speed. The court granted the defense motion to suppress for lack of reasonable suspicion. The applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB) under the provisions of AFI 36- 2406, Officer and Enlisted Evaluation Systems, due to his separation from active duty. On 30 November 2014, the applicant was honorably released and transferred to the Air Force Reserve. He was credited with 15 years and 8 days of active service. The remaining relevant facts pertaining to this application are contained in the letters prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C, D, and E. AIR FORCE EVALUATION: AFPC/DPSOE recommends denial. DPSOE states although the applicant’s court case was dropped, the fact remains that the applicant was driving while under the influence of alcohol. His commander determined this behavior to be reckless, irresponsible, dangerous and selfish. His actions also resulted in discreditable involvement with civil authorities. On 8 February 2013, the applicant received notification of non- recommendation to promotion test for cycle 13E6 to TSgt. He also received a referral EPR for the period 3 August 2012 to 2 August 2013. On 19 February 2013, the applicant received notification of his commander’s intent to initiate administrative demotion action for failure to fulfill airman responsibilities (AFI 36-2502, paragraph 6.3.4). On 9 March 2013, the staff judge advocate provided a legal review and determined there were no errors or irregularities affecting the legal sufficiency of the demotion action. Effective 9 March 2013, the applicant was demoted to the rank of SrA with a new date of rank of 14 March 2013. 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 commander acted within his authority to demote the applicant from SSgt to SrA. A complete copy of the AFPC/DPSOE evaluation is at Exhibit C. AFPC/DPSIM recommends denial for removal of the LOR/UIF. DPSIM states they cannot determine whether or not the person who initiated the LOR/UIF action was just or not; they can only discuss if proper procedures were followed in the administration of the action. The applicant did not provide any documentation (e.g. LOR he received) to determine if proper procedures were followed. IAW AFI 36-2907, paragraph 1.3.1, “For enlisted members, commanders refer optional documents LOAs, LOCs, or LORs to the offending member along with an AF IMT 1058 before establishing an UIF.” Of that note, this office cannot speak to whether or not the commander’s actions were just or not - at most they can only discuss if proper procedures were followed in the administration of the action. The applicant did not have an AF IMT 1058 present in this case. Proper procedures cannot be determined without the AF IMT 1058. A complete copy of the AFPC/DPSIM evaluation is at Exhibit D. AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice. DPSID states the applicant received a LOR/UIF and demotion for the substantiated misconduct, the “arrest” itself remains a fact. The rating chain appropriately chose to comment and document on the underlying wrongdoing, which caused the report to be referred to the applicant for comments and consideration to the next evaluator. The applicant provided no evidence within his case to show that the referral comment on the EPR was inaccurate or unjust; therefore, the inclusion of the referral comment on the EPR was appropriate and within the evaluator’s authority to document given the incident. Moreover, a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/commander served as a final “check and balance” in order to ensure that the report was given a fair consideration in accordance with the established intent of the current Officer and Enlisted Evaluation System in place. Based upon the presumed sufficiency of the LOR/UIF/demotion action as served to the applicant, they conclude that its mention on the contested report was proper and in accordance with all applicable Air Force policies and procedures. They find this element of the appeal to be without merit. In regards to the applicant’s allegation that the court found him not guilty, the applicant did provide a court document stating the officer did not have reasonable suspicion to stop him, but makes no mention of him being found not-guilty for driving under the influence which the EPR specifically mentions. However, a court dismissal is irrelevant on the comment made in the EPR since the comment merely documented the fact that he was “using alcohol irresponsibly; operated a car under the influence,” not that he was charged or found guilty. The comment does in no way make this report invalid. The fact remains that the applicant did use alcohol irresponsibly which is merely the underlying conduct that formed the basis of the action; and as such, this comment was appropriate and in accordance with all established Air Force policy and procedures. The bottom line is that the evaluators were within their authority to comment on the underlying behavior which caused the report to be referred, and even though the case was dismissed in a civil court, it was still within the Military’s jurisdiction to take administrative action as the rating chain deemed appropriate. Therefore, they find the comment referencing the behavior and the punishment received on the contested referral EPR to be fair, accurate, and IAW AFI 36-2406 instructional guidance. The burden of proof is on the applicant. The applicant has not substantiated that the contested OPR was not rendered in good faith by all evaluators based on knowledge available at the time. A complete copy of the AFPC/DPSID evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 16 July 2015 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. 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. 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 its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Despite the court’s dismissal of the alleged charge, the applicant has failed to demonstrate or provide evidence to the Board that would substantiate an error or injustice occurred in regards to his LOR, UIF, EPR and demotion. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 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-2014-01655 in Executive Session on 5 August 2015 under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 April 2014, w/atchs. Exhibit B. Applicant’s Available Master Personnel Records. Exhibit C. Letter, AFPC/DPSOE, dated 9 May 2014. Exhibit D. Letter, AFPC/DPSIM, dated 5 June 2014. Exhibit E. Letter, AFPC/DPSID, dated 1 July 2015. Exhibit F. Letter, SAF/MRBR, dated 16 July 2015.