RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-04230

 						COUNSEL:   

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The following documents be declared void and removed from his records:

	Referral Enlisted Performance Report (EPR) for the period ending 2 January 2014 (Administratively Corrected);

	Letter of Reprimand (LOR) dated 4 December 2013; 

	Unfavorable Information File (UIF);

	Administrative demotion to the grade of Staff Sergeant (SSgt, E-5).  

He be reinstated to the grade of Technical Sergeant (TSgt, E-6) with back pay retroactive to 30 October 2013.

He receive supplemental promotion consideration to the grade of Master Sergeant (MSgt, E-7).    

APPLICANT CONTENDS THAT:

His Driving Under the Influence (DUI) citation, Blood Alcohol Content (BAC) and two civil traffic violations were dismissed due to lack of probable cause.  

He was demoted to the grade of SSgt as a result of the 3 November 2013 DUI citation.  On 30 September 2014, the DUI citation was dismissed.  As such, there is no basis for the demotion action.

His commander stated if the charges were dropped, he would consider restoring his grade and remove the EPR, LOR and UIF.  His commander wanted to rescind the demotion action.  

The applicant provides a copy of Tucson City Court order dated 30 September 2014 which dismissed his DUI.  

The applicant provides a letter from his former squadron commander dated 27 February 2015, which states in part that he would have seriously considered recommending to the demotion authority to reinstate the applicant’s grade of TSgt if the off-base court proceedings had concluded within the 6 month time frame for an administrative demotion action per AFI 36-2503 [sic], Airman Promotion/Demotion Programs, which states “If the demotion authority restores the original grade following the demotion, he or she must do so sometime between three months and six months after the effective date of the demotion.  The demotion was effective on 30 December 2013 and proceedings were completed on 30 September 2014.  The applicant’s exemplary conduct and bearing set the standard for his peers.  He is a tremendous airman and will continue to be a phenomenal asset to the Air Force which is why he asks for consideration in his request.”  
    
In a letter dated 15 May 2015, the applicant states that on 3 November 2013, he was traveling home at a speed of 42 Miles Per Hour (MPH) in a 30 MPH zone when he was pulled over for speeding.  He informed the police officer that he had a few drinks and was driving a friend home unable to drive.  The police officer then explained the Field Sobriety Tests (FST) and he completed the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (W/T) and the One Leg Stand (OLS) tests.  One of the police officers informed him that he did not see any cues on the W/T and the OLS but he saw cues on the HGN test and because of that he believed he was impaired to the slightest degree and cited him for DUI.  Subsequently, he was reduced to the grade of SSgt. After the dismissal of his case, his commander advised him that “he moved too quickly with the decision on his stripe and that he would handle DUIs differently moving forward.”  His commander wanted to set things right by rescinding the demotion action but was informed that the time to do so had passed.  He was then advised that he had to submit his requests for removal of the demotion action, EPR, LOR and UIF to the AFBCMR.  He also provides the following AFBCMR cases as examples of an error or injustice which he believes are relevant and similar to his requests:  

	In BC-1997-00124, the Board majority granted relief of the applicant’s request to assume the higher grade based on his lengthy outstanding performance history and the recommendation of his superiors that he be allowed to assume the higher grade after a dismissal of a DUI due to procedural errors.  

	In BC-2002-04099, the Board removed a Promotion Recommendation Form (PRF) since the DUI charges were dropped entirely after the close out date of the report.  AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 1.12.7.1.3, states “Raters should be particularly cautious about referring to charges preferred, investigations, or boards of inquiry or using information obtained from those sources, or any similar actions related to a member, that are not complete as of the close-out date of the evaluation.”  

	In BC-2008-01832, a request to remove an Officer Performance Report (OPR) based on a DUI charge was denied.  However, the Board indicated that relief could be granted if there was verification the DUI charges were dropped.  

	In BC-2014-01904, the Board noted that the applicant’s grade was administratively resolved based on the dismissal so the Board determined there was no basis for denial of the AFGCM.  

The preceding cases are relevant and similar to the issues within his case and he asks the Board to not allow this one disproven allegation to define his character and military career.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of SSgt.   

On 4 December 2013, the applicant received a LOR.  The reason for the LOR was that on or about 3 November 2013 at approximately 0224 hours, he was arrested by the Tucson Police Department for DUI of alcohol with a BAC of 0.126 which is excess of the 0.08 maximum established by Arizona law.  

On 4 December 2013, the applicant was notified by his commander he was recommending he be administratively demoted In Accordance With (IAW) AFI 36-2502, Airman Promotion/Demotion Programs, paragraph 6.3.4., Failure to fulfill responsibilities of a Noncommissioned Officer (NCO).  The specific reason for the demotion recommendation was that on or about 3 November 2013, at or near Tucson, AZ he was arrested for DUI after he was pulled over for driving 42 MPH in a 30 MPH zone and making an illegal left turn.  The sample of his blood test found his BAC to be 0.126, well above the legal limit of 0.08.  By choosing to operate a motor vehicle while under the influence of alcohol, he failed to maintain the standards and responsibilities required of all NCOs.  

According to the AF Form 1058, Unfavorable Information File Action, dated 4 December 2013, the applicant received a UIF.  

According to the AF Form 910, Enlisted Performance Report (AB thru TSgt), for the period ending 2 January 2014, the applicant received a referral EPR due to his arrest for DUI, exceeding the BAC, major conduct failure, receiving a UIF and an administrative demotion.   The applicant’s EPR for the period ending 3 May 2014 was not a referral EPR.  

The applicant’s previous DOR to the grade of TSgt was 1 July 2013.  According to the AFPC Weighted Airman Promotion System (WAPS) Eligibility Chart, dated 20 May 2015, he would have been eligible for promotion to the grade of MSgt during promotion Cycle 15E7 were it not for his demotion to the grade of SSgt.   

According to Special Order AA-001 dated 6 January 2014, the applicant was demoted to the grade of SSgt with a Date of Rank (DOR) and effective date of 30 December 2013 IAW AFI 36-2502, paragraph 6.3.  

On 25 April 2016, the Evaluation Report Appeals Board (ERAB) removed the applicant’s referral EPR for the period ending 2 January 2014.  The ERAB noted the applicant was arrested without probable cause and the case was dismissed by the State of Arizona.  As a result, the ERAB concluded the EPR was processed in violation of AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 1.12.7.1.3 which states raters should be particularly cautious about referring to charges, preferred investigations, or boards of inquiry or using information related to a member that is not complete as of the close out date of the evaluation.  The contested EPR was removed from the applicant’s record and was replaced with an AF Form 77, Letter of Evaluation, which states the applicant was not rated for the period of 22 December 2012 thru 2 January 2014 and the evaluation was removed by the Order of the Chief of Staff, USAF.  

AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial of the applicant’s requests for removal of the LOR and UIF due to lack of evidence.  DPSIM concludes proper procedures were followed in the administration of the LOR and UIF.  

A complete copy of the AFPC/DPSIM evaluation is at Exhibit D.

AFPC/DPSID recommends denial of the applicant’s request to remove the contested referral EPR.  The applicant has not provided substantiating documentation or evidence to prove the EPR was rendered unfairly or unjustly.  The applicant did not file an appeal through the ERAB under the provisions of AFI 36-2406. 

The applicant alleges the magistrate dismissed the DUI due to lack of probable cause.  However, a court dismissal is irrelevant to the comment made in the EPR since the comment merely documented the fact that he was “arrested for DUI” not that he was charged or found guilty.  The comment in no way makes the report invalid.  The fact remains the applicant used alcohol irresponsibly which is the underlying conduct that formed the basis of the action; and as such, the comment was appropriate and IAW established Air Force policy and procedures.  Evaluators were within their authority to comment on the underlying behavior which caused the report to be referred.   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, the comment referencing the behavior and the punishment received on the referral EPR was fair, accurate and IAW AFI 36-2406 guidance.    

A complete copy of the AFPC/DPSID evaluation is at Exhibit E.

AFPC/DPSOE recommends denial of the applicant’s request for removal of the demotion action and reinstatement to the grade of TSgt.  A legal review was conducted and the demotion action was found to be legally sufficient.  The commander acted within his authority IAW policies and procedures when he directed the applicant be demoted.  

A complete of the AFPC/DPSOE evaluation is at Exhibit F.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a letter dated 16 September 2015, the applicant thru counsel states the advisory opinions focus on procedural errors and ignore the fact that all criminal charges were dismissed.  He was cleared of all misconduct relating to his arrest pursuant to Arizona law.  The decision of the court to expunge the record is not the same as merely dismissing a case or finding of not guilty at trial, it is a legally binding decision that the applicant was wrongfully arrested and not merely found not guilty.  

On 24 July 2014, Pima County Superior Court issued an order for the clearance of records under Arizona Revised Statutes (A.R.S. § 13-4051(B)).  In the order, the judge found that “Justice will be served by an entry on all records relating to the defendant’s arrest…that defendant has been cleared of all DUI charges.”  The order goes on to direct that all law enforcement agencies ensure any records of the arrest contain a notation he was cleared of all charges.  

The language of A.R.S. § 13-4051(B) is clear.  If a judge finds that an individual was arrested and charged with a crime was wrongfully arrested, the judge has the legal authority to ensure that the interests of justice are furthered by formally clearing the individual.  

Even if the Air Force wanted to rely on the fact the applicant was arrested to form the basis of adverse administrative action, in this case there has been a formal finding by a judge of competent jurisdiction that the applicant was wrongfully arrested and that he must be cleared of all misconduct and his former commander is requesting that his rank be reinstated.  If the Air Force attempted to obtain a copy of the arrest record today, that request would be denied.  In other words, even if evidence of misconduct was believed to exist at the time of the adverse actions in this case, that evidence has been expunged and cannot be legally relied upon by any entity for adverse action.  The Air Force may have believed there was misconduct based on records produced by the State of Arizona but in reality those records do nothing but establish the applicant was cleared of all misconduct.

The Board has recognized injustice can result if a military member is subjected to adverse action prior to the outcome of a pending investigation or criminal proceeding.  In 2002, the Board found that when the sole basis for an administrative action was pending criminal charges and those charges were dismissed, failure to grant relief could result in an injustice (BC-2002-04099).  

In further support of his requests, the applicant provides a court order and another letter from his former commander dated 11 Sep 2015, reiterating that had the court proceedings concluded within the six months of the administrative demotion, he would have recommended to the approval authority to reinstate the applicant to the grade of TSgt as per AFI 36-2502, Airman Promotion/Demotion Programs, which reads "If the demotion authority restores the airman's original grade following the demotion, he or she must do so sometime between 3 months and 6 months after the effective date of the demotion." 

The applicant’s complete response, with attachments, is at Exhibit H.  

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Legal Advisor recommends denial of the applicant’s requests.  The civilian court’s decision to suppress a blood alcohol test in criminal court proceedings does not create an error or injustice that warrants correction of military records.  In court, the applicant benefitted from stricter rules based on the Constitution’s Fourth Amendment relating to admission of evidence in criminal cases.  By contrast, the evidence in question was properly used by command in the administrative action and nothing in the State court order precludes such use.  The applicant’s counsel indicates that using the BAT results and arrest record to support an administrative action is not allowed, unfair, or could not happen if the Air Force requested the evidence today.  In fact, the applicant’s BAC was confirmed by forensic testing, after he refused multiple breathalyzers and was served with a state administrative revocation of his license for refusing multiple times to complete a breathalyzer.  Whether the Air Force would seek and obtain a court order for this evidence today is not relevant to whether the administrative actions taken were an error or an injustice.  

The adverse actions are supported by reliable evidence, including the BAC and forensic test result.  The demotion notification reads, “after the Tucson Police Department acquired a search warrant to obtain a sample of his blood, the test found his BAC to be 0.126.  This is well above the legal limit of 0.08g/100ml blood in the State of Arizona.  By choosing to operate a motor vehicle while under the influence of alcohol, the applicant failed to maintain the standards and responsibilities required of all NCOs in the United States Air Force.”  All of this is factually true, and the success of defense to suppress the evidence in a criminal trial does not make it untrue or unreliable.  The status of his criminal case does not eliminate or mitigate the fact that he drove after drinking alcohol, and the toxicology report establishes his blood alcohol level within two hours of driving was above the .08 limit set by Arizona law and the .10g/100ml set by the UCMJ.  

The BAC of 0.126 was from blood samples drawn after the applicant refused or failed to complete multiple breathalyzers.  The Air Force could and did properly use this test result to support command’s decision to take the adverse administrative actions.  The fact that the charges were subsequently dismissed because of the exclusion of the blood alcohol test does not mean the applicant was innocent of the charges or that the federal government can no longer rely on this evidence to support administrative actions.  Although the former commander says he would have made a favorable recommendation to restore the applicant’s rank if the charge had been disposed of earlier, it is unlikely the appropriate approval authority would have supported such a recommendation considering the results of the blood alcohol test.

A complete copy of the BCMR Legal Advisor’s evaluation is at Exhibit I.  

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant, thru counsel, states the 15 October 2015 opinion assumes a valid blood test occurred in his case without any analysis whatsoever of the test.  This assumption is misplaced and leads to an error in reasoning.  Counsel provides information from a forensics expert who finds the blood test scientifically unreliable.

His civilian counsel successfully challenged the DUI by filing a motion to suppress, which was granted.  The court found that the officer did not have probable cause for the arrest because of “little evidence of impairment.”  At that point, the case was over.  The facts of the case have long called into question of the validity of the blood test.  The judge writes, “it is not clear if the applicant was impaired to the slightest degree by the consumption of alcohol.  In fact the weight of the evidence suggests otherwise.”  Because of the error by law enforcement, the applicant did not need to address the validity of the blood test.  His attorney did not need to address the blood test, which has now been done.

The findings provided are clear that the blood test is scientifically unreliable.  This finding, along with the findings of the judge, establishes the applicant was not operating his vehicle while under the influence of alcohol.

The applicant does not have a legal conviction and the blood test is scientifically unreliable.  To base an opinion on the validity of the blood test would be an error and grave injustice.  The Board is aware of laboratories which have forensically certified samples that were indeed not forensically sound.  The Board has the power to cure an injustice for the applicant.  It is the right thing to do.

In further support of the applicant’s requests, counsel provides a notarized letter dated 19 November 2015 from a forensics expert which states that upon review of the chemical analysis results of the applicant’s blood sample, they determined there are numerous inconsistencies and unexpected contaminants within the results indicating the overall blood alcohol analysis result assigned to the applicant’s blood is scientifically unreliable.  

The applicant’s complete submission, with attachments, is at Exhibit K.  

ADDITIONAL ARMED FORCES MEDICAL EXAMINER SYSTEM FORENSIC TOXICOLOGIST EVALUATION:

The Armed Forces Medical Examiner System Forensic Toxicologist disagrees with the applicant’s forensics expert regarding the problem of the peaks present in the actual samples not being present in the control samples.  The presence of other peaks in a real sample would be expected.  In contrast, a control should be extremely clean except for the target compound, which in this case would be ethanol/alcohol and the internal standard.  Other compounds can occur naturally in real specimens, such as acetone and acetaldehyde.  

The minute differences between the two vials is not evidence of any contamination, and if each vial were pipetted separately, it could be due to a very small amount of a volatile compound escaping from the original blood tube after opening during the pipetting process.  

The analytical method involves the ability of the instrument to separate each volatile compound from the target compound based on the different retention times, so even the small peaks have no impact on the quantitation of the ethanol even if they were of significant amounts.  

The evidence from the analysis shows the quantitation of the ethanol showed no variation, with vial 43 at 0.126 g/100mL and vial 44 at 0.126 g/100mL.  This demonstrates consistency between the two samples.  The suggestion that these “contaminants” were not present at the time of the incident is not based on science.  

Scientifically, it has been shown that impairment occurs as low as 0.02, even if it can only be detected by special tests.  The issue which appears to be involved in this case is one of tolerance.  Individuals with a high tolerance can actually appear “normal” but the reality is that tolerance does not affect all the aspects of impairment from alcohol.  Impairment can affect mental and physical processes, to include areas such as multitasking and reaction times.  It has actually been published that chronic drinkers can actually show no clinical signs of intoxication.

He understands the issue in this case is probable cause, which is a different issue, although there appears to be a misconception about impairment and visible signs of intoxication.  It is a big difference when proving the presence of impairment for a particular individual.

A complete copy of the Armed Forces Medical Examiner System Forensic Toxicologist evaluation is at Exhibit L.

APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

Counsel, on applicant’s behalf, states the local crime laboratory which performed the test on the applicant’s blood has experienced less than stellar quality control issues.  While the Armed Forces Medical Examiner is well versed in science and laboratory operations, particularly those within the Department of Defense, he does not have knowledge and experience with the Tucson, AZ laboratory which is of utmost importance in this case.  

The Board is provided with actual cases a local forensics expert has worked on and presented state-wide revealing the problems with the Tucson laboratory.  The irregularities which occurred in those cases also occurred in the applicant’s sample.  The irregularities show that the applicant’s sample is scientifically unreliable.  As such, counsel requests the Board not rely on the flawed sample.

The applicant’s complete submission, with attachments, is at Exhibit N.  

APPLICANT’S ADDITIONAL REVIEW OF ADDITIONAL EVALUATION:

In a letter dated 27 April 2016, the applicant requests the decision of the ERAB to void his referral EPR dated 2 January 2014 be added to his case for consideration by the Board.  This indicates there is no longer any negative documentation against him pertaining to the incident that he was falsely cited for.  He requests restoration of his grade of Technical Sergeant, back pay to 30 December 2013, supplemental promotion consideration to the grade of MSgt for all missed promotion cycles and removal of the LOR. 

The applicant’s complete submission, with attachments, is at Exhibit O.  

THE BOARD CONCLUDES 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 the existence of an error or injustice to warrant granting the requested relief.  We note the Air Force OPRs and the BCMR Legal Advisor recommend denial of the applicant’s requests.  The BCMR Legal Advisor also states that based on the blood alcohol test she finds it unlikely that the appropriate approval authority would have supported reinstating the applicant’s grade of TSgt.  While these comments are duly noted, we recognize the adverse impact the LOR, UIF and administrative demotion has had on the applicant and are persuaded based on the circumstances in this case, corrective action is warranted.  In particular, we are mindful that the applicant was arrested for DUI without probable cause and that the case was dismissed and his record expunged of the arrest by the Pima County Superior Court.  Furthermore, we note on 25 April 2016, the ERAB removed the contested referral EPR based on the dismissal of the DUI charge by the State of Arizona.  The ERAB further stated that raters should be particularly cautious about referring to charges that are not complete as of the close out date of an evaluation.  The Board agrees with the rationale of the ERAB’s decision to remove the referral report and finds its conclusion supports granting the applicant’s remaining requests.  Furthermore, we note the applicant’s commander at the time provided a letter dated 27 February 2015 which states he would have recommended the applicant be reinstated to the grade of TSgt had the court proceedings concluded within the six month time frame of the administrative demotion action.   Therefore, we recommend the LOR, UIF and administrative demotion be void and removed from his record and he be reinstated to the grade of TSgt with his original DOR of 1 July 2013 with retroactive back pay and he be considered for supplemental promotion to the grade of MSgt.  Accordingly, we recommend the applicant’s records be corrected to as indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show:

a. His Letter of Reprimand (LOR) dated 4 December 2013 be void and removed from his record.  

b. His AF Form 1058, Unfavorable Information File, dated 4 December 2013 be void and removed from his record.  

c. Special Order AA-001 dated 6 January 2014 demoting the applicant to the grade of SSgt with a DOR and effective date of 30 December 2013 be void and removed from his records. 

d. He be reinstated to the grade of Technical Sergeant (TSgt, E-6), with date of rank and effective date of 1 July 2013, with retroactive back pay.  

e. He be granted supplemental promotion consideration to the grade of Master Sergeant (MSgt, E-7) for all appropriate cycles beginning with Cycle 15E7.  

	If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application, that would have rendered the applicant ineligible for the promotion, such information will be documented and presented to the Board for a final determination on the individual’s qualifications for the promotion.

The following members of the Board considered AFBCMR Docket Number BC-2014-04230 in Executive Session on 1 October 2015, 1 March 2016 and 27 May 2016 under the provisions of AFI 36-2603:

	 , Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04230 was considered:

	Exhibit A.  DD Form 149, 14 October 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Records of Proceedings (4).
	Exhibit D.  Memorandum, AFPC/DPSIM, dated 2 February 2015.
	Exhibit E.  Memorandum, AFPC/DPSID, dated 10 August 2015.
	Exhibit F.  Memorandum, AFPC/DPSOE, dated 18 August 2015.
	Exhibit G.  Letter, SAF/MRBR, dated 20 August 2015.
	Exhibit H.  Letter, Applicant, dated 16 September 2015, 				  w/atchs. 
	Exhibit I.  Memorandum, SAF/MRBL, dated 15 October 2015.
	Exhibit J.  Letter, SAF/MRBR, dated 28 October 2015.  
	Exhibit K.  Letter, Counsel, undated, w/atchs.  
	Exhibit L.  E-mails, Armed Forces Medical Examiner, dated 
			  19 January 2016.  
	Exhibit M.  Letter, AFBCMR, dated 20 January 2016.
	Exhibit N.  Letter, Counsel, undated, w/atch.
	Exhibit O.  Letter, Applicant, dated 27 April 2016, 
			  w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.