RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02392

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His date of rank (DOR) as staff sergeant (E-5) be reinstated to reflect 1 June 2009 and he receive any back pay associated with the correction.  

2.  His AF Form 910, Enlisted Performance Report (EPR)) (AB thru TSgt), rendered for the period 26 January 2013 thru 7 May 2013, be declared void and removed from his records.  

APPLICANT CONTENDS THAT:

He was demoted to senior airman (E-4) for being charged with driving under the influence of alcohol although there was no evidence to support the charge.  He was not given a test to accurately determine if there was any level of intoxication.  He is requesting his original date of rank on the grounds of misuse and exploitation of Air Force Instruction (AFI) 36-502, Airman Promotion/Demotion Program.  

His demotion action was executed based upon the belief of his commanding officers that he was driving under the influence.  However, all charges were later dismissed through the civilian court.  

He requested of leadership for the restoration of his original grade to E-5; however, his request was denied.  Therefore, he initiated an Inspector General (IG) complaint, but was referred to submit his matters before the Air Force Board for Correction of Military Records (AFBCMR).  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 25 May 2004.  

On 13 February 2013, the applicant’s commander notified him that she was recommending his demotion to the grade of senior airman (E-4_ for failure to fulfill responsibilities.  Specifically, the reason for the actions was on or about 2 February 2013, the applicant drove while under the influence of alcohol.  

On 21 February 2013, the applicant acknowledged receipt of the action and, after consulting with legal counsel, submitted a statement in his own behalf.  His commander upheld her decision to demote him.  The applicant’s wing commander approved the demotion action and the applicant was demoted to the grade of E-4, effective 4 March 2013.  

On 6 March 2013, the applicant appealed the wing commander’s decision for the demotion action.

On 21 March 2013, the appellate authority denied the applicant’s appeal of his demotion action.  

On 11 June 2013, the contested EPR was referred upon the applicant, for a rating of “Does Not Meet” standards in section III, Item 2.  Standards, Conduct, Character & Military Bearing, and a comment related to his administrative demotion to the rank of senior airman.  

On 20 December 2013, the applicant initiated an AF Form 102, Inspector General Personal and Fraud, Waste & Abuse Complaint Registration, because he felt he was unjustly demoted and was seeking restoration of his original rank of staff sergeant (E-5), with the date of rank (DOR), effective 1 June 2009.  

On 7 January 2014, the 97 AW/IG notified the applicant that the Inspector General (IG) Complaint Resolution Program (CRP) should not be used for matters normally addressed through other established grievance or appeal channels, unless there is evidence those channels mishandled the matter or process.  The 97 AMW/IG indicated that the applicant’s appeals were not mishandled, nor did the applicant provide any evidence of such.  Therefore, this was not a matter for the IG and he was referred to the AFBCMR for pursuing restoration of his rank.  

On 15 July 2015, the applicant’s commander notified him that he was recommending his discharge from the Air Force with an Under Other than Honorable Conditions (UOTHC) service characterization for his misconduct, specifically for commission of a serious offense.  The reasons for the action were as follows:

	a)  On 29 June 2015, the applicant received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for physically controlling a vehicle while drunk. 

	b)  On 29 June 2015, the applicant received NJP under Article 15 of the UCMJ for wrongfully and recklessly engaging in conduct likely to cause death or grievous bodily harm to another.  Specifically, by driving a vehicle with the headlights off.  

 	c)  On 29 June 2015, the applicant received NJP under Article 15 of the UCMJ for wrongfully failing to yield to an emergency vehicle.  

	d)  On 13 February 2013, the applicant received an administrative demotion.  

On 24 July 2015, the applicant acknowledged receipt of the action and, after consulting with legal counsel, he requested a conditional waiver of the rights associated with an administrative discharge board hearing.  The waiver was contingent on his receipt of no less than an Under Honorable Conditions (General) service characterization.  

On 28 July 2015, the wing commander recommended the applicant be discharged from the Air Force with an UOTHC without probation and rehabilitation (P&R).  

On 17 August 2015, the special court-martial convening authority rejected the applicant’s conditional waiver.  

On 15 September 2015, an administrative discharge board was convened to review the applicant’s case.  The board found that a basis for discharge existed for two of the four serious offenses and recommended an Under Honorable Conditions (General) service characterization without P&R.  Specifically, the Board found that the applicant, on or about 15 June 2015, did physically control a passenger vehicle while drunk and recklessly operated his vehicle with the headlights off.  However, the applicant did not wrongfully fail to yield to an emergency vehicle and on 2 February 2013, did not drive while under the influence of alcohol.  

On 8 October 2015, the case was found to be legally sufficient.

On 19 October 2015, the discharge authority directed the applicant be furnished a general discharge, without P&R.  

On 27 October 2015, the applicant was furnished a general (under honorable conditions) discharge, with a narrative reason for separation of “Misconduct (Serious Offense)”.  He was credited with 11 years, 5 months, and 3 days of active service.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C and D.  

AIR FORCE EVALUATION:

AFPC/DPSID recommends denial in regards to the applicant’s request for the removal of his referral Enlisted Performance Report (EPR).  Based on insufficient corroborating evidence provided by the applicant and the presumed legitimacy of the original crafting of the EPR, the report should not be voided from the applicant’s permanent record.  The applicant has not provided compelling evidence to show that the report is unjust or inaccurate as written.  To void the applicant’s referral EPR, would remove the accountability of his offense.  

The applicant received a referral EPR based on his administrative demotion, due to his failure to maintain standards.  The applicant contends that the demotion was executed based on the belief of his commanding officer that he had a DUI.  However, 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 insufficient 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 demotion action as served to the applicant, its mentioning on the contested report was proper and in accordance with all applicable Air Force policies and procedures.  

Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  Additionally, it is considered to represent the rating chain’s best judgment at the time it is rendered.  To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain—not only for support but, also for clarification/explanation.  Statements from the evaluators during the contested period are conspicuously absent.  The applicant has failed to provide the necessary information/support from any rating official on the contested EPR. Without the benefit of these statements, the only conclusion is that the EPR is accurate as written.  It is determined that the EPR was accomplished in direct accordance with all applicable Air Force policies and procedures.  Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record.  The burden of proof is on the applicant.  

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

AFPC/DPSOE recommends denial in regards to the applicant’s request to restore his rank to staff sergeant (E-5), with an original date of rank (DOR) of 1 June 2009.  While serving in the rank of staff sergeant, the applicant was administratively demoted to senior airman (E-4), effective 4 March 2013, for failure to fulfill responsibilities.  The applicant’s commander was in the best position to evaluate his situation and the circumstances involved.  Also, the applicant’s commander acted within his authority when he decided to administer the demotion action.  Furthermore, the demotion was deemed legally sufficient, as all administrative demotion actions require a legal review.  The applicant was subsequently considered and selected for promotion to staff sergeant during cycle 14E5 and received a DOR of 1 May 2015.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 20 April 2016 for review and comment within 30 days (Exhibit E).  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 (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2015-02392 in Executive Session on 7 July 2016 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 27 May 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSID, dated 27 February 2016.
Exhibit D.  Memorandum, AFPC/DPSOE, dated 4 March 2016.
	Exhibit E.  Letter, AFBCMR, dated 20 April 2016.