RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-02307
		
XXXXXXXXXX				COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His promotion to the grade of staff sergeant (E-5) be reinstated with a date of rank of 1 November 2012, and he receive the associated back-pay.

APPLICANT CONTENDS THAT:

He erroneously lost his line number to the grade of E-5 due to a criminal investigation and subsequent court-martial.  However, because the charges that stemmed from the investigation were ultimately dismissed and he was found “not guilty” his promotion should have been reinstated with back-pay to his original promotion date of 1 November 2012.

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

STATEMENT OF FACTS:

On 15 May 2007, the applicant entered the Regular Air Force.

The applicant’s performance reports for the period from 1 May 2016 to 14 January 2014 do not reflect any referral reports.
According to General Court-Martial Order (GCMO) No. 6 dated 5 March 2015, the applicant pled and was found not guilty of four specifications of Article 128, Uniform Code of Military Justice (UCMJ) and one specification of Article 108, UCMJ.  The sentence of “No punishment” was adjudged by officer members on 8 November 2014, and all court-martial charges against the applicant were dismissed.

On 14 November 2014, the applicant received an honorable discharge, and was credited with 7 years and 6 months of active service.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C through E.

AIR FORCE EVALUATION:

AFPC/DPSOE recommends denial.  The applicant became ineligible for promotion when he failed to progress in upgrade training.  The applicant was considered and tentatively selected for promotion to the grade of E-5 during cycle 12E5.  He received promotion sequence number (PSN) 2740, which incremented on 1 November 2012.  On 20 September 2012, in accordance with AFI 36-2502, Airman Promotion/Demotion Programs, the applicant’s promotion was withheld pending the outcome of an investigation and subsequent court-martial.  However, when promotion eligibility status (PES) code 1 (failure to progress in upgrade training) and grade status reason (GSR) 3C (removed by commander/delete erroneous projection) [sic] was updated on 1 September 2013, his line number was removed in accordance with AFI 36-2502.

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

AFLOA/JAJM recommends the email traffic and its enclosures, to include the applicant’s EPRs from 2007-2014, and a summary of his training status provided by the applicant’s former first sergeant be reviewed.  It appears the removal of the applicant’s line number for failure to progress in training and for receipt of a referral evaluation was in error and that the applicant should have been eligible to promote when the court-martial charges against him were dismissed in March 2015.  AFLOA/JAJM defers to an evaluation of the appropriateness of promotion based on the totality of the circumstances, a corresponding date of rank, and back-pay to those agencies better suited to advising on the provisions of 36-series Air Force instructions.

On 20 September 2012, in accordance with AFI 36-2502, Table 1.2, the applicant’s promotion to the grade of E-5 was withheld pending the outcome of an investigation and subsequent court-martial.  The applicant was tried by General Court-Martial in November 2014 for three specifications of intentional infliction of bodily harm upon a child, one specification of assault consummated by a battery upon a child, and one specification of willful destruction of government property.  The applicant was found not guilty of all specifications, except the willful destruction of government property offense.  In clemency, the applicant requested that the finding of guilty for damage to government property be disapproved as a federal conviction for an offense that would typically result in administrative or nonjudicial punishment because it was unduly severe.  The convening authority concurred and disapproved the finding of guilty for willful damage of government property, and dismissed the charges pursuant to his powers under Article 60, UCMJ.  This dismissal disapproved the finding of guilty by members at court-martial and effectively ended the judicial proceedings pending against the applicant, without any type of conviction.

On 1 September 2013, while the applicant was still under investigation and pending court-martial, his line number was removed in accordance with AFI 36-2502.  The basis for the removal of his line number was the inputting of PES code 1 (failure to progress in upgrade training) and GSR 3C (receipt of referral report).  The applicant contends that his command, which would have been responsible for monitoring his training progress and issuing any referral evaluations, has confirmed that the entry of these codes on 1 September 2013, which resulted in the loss of his line number, were errors.  As can be seen in the provided email traffic, AFLOA/JAJM reached out to the base legal office.  In response, AFLOA/JAJM received the applicant’s EPRs for the period 2007-2014 and a confirmation from his former first sergeant that he never failed to progress in his training.

As the promotion withhold in this case resulted from a 36-series AFI on procedural grounds (the applicant being under investigation and pending court-martial) and was not the result of a military justice action punishment, it is beyond the purview of AFLOA/JAJM to opine on the merits of promotion (promotion date) and back-pay for the applicant.  That said, the rationale detailed in the AFPC/DPSOE advisory to the AFBCMR on this case appears to be in error.  By the account of his unit, the applicant did not fail to progress in training, nor did he receive any type of referral evaluation in September 2013.

A complete copy of the AFLOA/JAJM evaluation, with attachments, is at Exhibit D.

AFPC/DP3DW recommends denial.  The applicant was notified in August 2012 that he was selected for promotion to the grade of E-5 with a PSN of 2740.  In September 2012, he was notified that he was being investigated by the Office of Special Investigations and notified in October 2012 that his commander withheld his promotion pending the outcome of the investigation.  The applicant contends that when he questioned his chain of command about the promotion reinstatement after the court found him “not guilty,” they agreed to abide by the original withholding criteria.  Unfortunately, since the applicant did not hold the grade of E-5, he did not meet the minimum eligibility requirements for the award of the 7-skill level and was placed in Training Status Code (TSC) “T.”  In accordance with AFI 36-2201, Air Force Training Program, individuals in TSC “T” are ineligible for reassignment, promotion or reenlistment.  Since the applicant’s promotion was still being held due to the investigation/court martial, his placement in TSC “T” rendered him ineligible for promotion.  This TSC was not removed prior to his discharge.

A complete copy of the AFPC/DP3DW evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 2 March 2016, 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.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  AFPC/DPSOE and AFPC/DP3DW express that relief should be denied because the applicant’s records indicate he failed to progress in upgrade training.  However, we disagree.  In this respect, we note the applicant’s promotion to the grade of E-5 was withheld due to an ongoing investigation. Subsequently his records were updated to reflect that he did not meet the minimum eligibility requirements (grade of E-5) for award of the 7-skill level.  Were it not for the court-martial charges that were dismissed in March 2015, it appears the applicant would have been promoted to the grade of E-5 on 1 November 2012.  Therefore, we find it in the interest of justice to correct the applicant’s record to reinstate his grade to E-5 as requested.  Accordingly, we recommend the applicant’s records be corrected 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 that he was promoted to the grade of staff sergeant (E-5) effective and with a date of rank of 1 November 2012.

The following members of the Board considered AFBCMR Docket Number BC-2015-02307 in Executive Session on 12 May 2016, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02307 was considered:

Exhibit A.  DD Form 149, dated 29 May 2015, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DPSOE, dated 1 September 2015.
Exhibit D.  Memorandum, AFLOA/JAJM, dated 7 December 2015, 
  w/atchs.
Exhibit E.  Memorandum, AFPC/DP3DW, dated 28 January 2016.
Exhibit F.  Letter, AFBCMR, dated 2 March 2016.