RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-02489 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Removal of his administrative demotion, reinstatement to the grade of staff sergeant (E-5) with full back pay and benefits, promotion to technical sergeant (E-6) and opportunity to test for promotion to master sergeant (E-7). APPLICANT CONTENDS THAT: He received a Letter of Reprimand (LOR), Unfavorable Information File (UIF), placement on the control roster and was demoted in grade for failure to fulfill his duties as an NonCommissioned Officer (NCO). He did not want his actions to be perceived as blatant disrespect or disregard of his duties as an NCO. He was following the instructions given to him to regarding processing the Enlisted Performance Report (EPR) in the Evaluation Management System (EMS) EPR tracking system. He was never told the EPR had to be completed and ready to route. He believed his portion of making corrections on the EPR was complete. The administrative demotion action he received was not appropriate, legal or in accordance with the governing Air Force Instructions (AFI). The situation was a result of a misunderstanding and miscommunication among the parties involved. The situation was misconstrued and should have been handled at the lowest level of supervision. According to the governing Air Force Instruction (AFI) a LOR is to be used as a “rehabilitative tool” and there should be “progressive disciplinary actions” for an offense. However, up until this time he had no instances of not performing his duties as an NCO. According to AFI 36-2907, Unfavorable Information File (UIF) Program, if a written LOR is administered it must state what the individual did or failed to do, cite the specific incidents and dates, what improvement is expected, further deviation may result in a more severe action, individual has three (3) duty days to submit a rebuttal response and that all documents provided by the individual will be part of their record. According to AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, an administrative demotion should not be administered if it is more appropriate to take actions by the Uniform Code of Military Justice (UCMJ). Do not demote airman who have separated. Begin administrative demotion for action during the term of enlistment when the reason for the action occurred, except when the commander is not aware of the facts and circumstances until after the enlistment expires. If the commander has sufficient reason to initiate demotion action, use the entire military record in deciding when demotion is appropriate, and when appropriate, give airmen an opportunity to overcome their deficiencies before demotion action is initiated. Commanders should maintain supporting documentation of all rehabilitation and probationary action. This administrative demotion has caused undue financial hardship to him and his family. It has affected his professional, personal and family relationships. He was unable to test for technical sergeant (TSgt) because the administrative punishment took so long and the testing cycle closed. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 21 Feb 96, the applicant commenced his enlistment in the Regular Air Force. On 16 Jun 11, the applicant received a referral Enlisted Performance Report (EPR) for the period 16 Jun 10 thru 15 Jun 11, based on a referral comment related to his being charged with violating Idaho Code 18-8004 and receiving a Letter of Reprimand (LOR)/control roster/Unfavorable Information File (UIF) for driving while intoxicated. According to documentation provided by the applicant, he received an LOR for departing his place of duty without completing his assigned task. The applicant acknowledged receipt of the LOR and that he had three (3) duty days to provide a response. On 2 Feb 12, it was determined the applicant’s LOR would be filed in an Unfavorable Information File and on the same date the applicant acknowledged receipt and understanding on the decision of this issue. According to the applicant’s military personnel record (MPR) he was demoted from staff sergeant (SSgt) to senior airman (SRA) effective and with a date of rank (DOR) of 23 Apr 12. On 15 Jun 12, the applicant received a referral EPR for the period 16 Jun 11 thru 15 Jun 12, based on a referral comment related to his receiving an LOR and an administrative demotion for failures as an NCO by departing work prior to completing assigned tasks. Per Special Order No. AC 002375, on 29 Feb 16, the applicant will be relieved from active duty and retired effective 1 Mar 16. He will be credited with 20 years and 10 days of active service. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPSIM recommends denial indicating there is no evidence of an error or an injustice. In accordance with AFI 36-2907, paragraph 3.5, “Administer a counseling, admonition, or reprimand, verbally or in writing. If written, the letter states: What the member did or failed to do, citing specific incidents and their dates, what improvement is expected, that further deviation may result in more severe action. That the individual has 3 duty days to submit rebuttal documents for consideration by the initiator. The person who initiates the RIC, LOC, LOA, or LOR has 3 duty days to advise the individual of their final decision regarding any comments submitted by the individual. The person who initiates a RIC/LOC, LOA, or LOR may send it to the member's commander or superiors for information, action, or for their approval for file in the Unfavorable Information File (UIF) or Personal Information File. Include the member's written acknowledgment and any documents submitted by the member.” DPSIM is unable to determine whether or not the commander’s actions were just; they can only discuss if proper procedures were followed in the administration of the action. After careful review, they concluded the applicant’s commander was within his/her authority to administer an LOR, file it in his UIF, and initiate Control Roster action. However, without reviewing the completed LOR and AF Form 1058, Unfavorable Information File, they cannot determine if the procedures were followed in accordance with the AFI. The evidence is not sufficient to determine if the applicant unjustly received an LOR, UIF, and Control Roster. In conclusion, they defer to the Enlisted Promotions Branch regarding restoration of his promotion. A complete copy of the AFPC/DPSIM evaluation is at Exhibit C. AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice. The applicant was considered and selected for promotion to SSgt during cycle 03E5. He was considered and nonselected for promotion to TSgt five times (06E6 – 10E6). He became ineligible for promotion consideration during cycle 11E6 when he received a referral EPR for being placed on the Control Roster due to a DUI incident. In Jan 12, he was placed on the Control Roster for failure to fulfill NCO responsibilities and received a referral EPR for the period 16 Jun 11 – 15 Jun 12. On 23 Apr 12, he was demoted to the rank of SrA. Based on his new SrA date of rank (DOR) he became eligible for promotion consideration to SSgt beginning with cycle 14E5. He was considered and nonselected for promotion to SSgt during cycle 14E5 and is currently awaiting results of the 15E5 cycle. The applicant contends that he was unable to test for TSgt due to the lengthy processing of his punishment. However, he was ineligible for promotion consideration from 2011 – 2013 based on two referral EPRs, placement on the Control Roster on two separate occasions and an administrative demotion. They note AFPC/DPSIM has reviewed the case and determined that the applicant’s commander acted within their authority to administer the LOR/UIF and place the applicant on the Control Roster. The applicant did not address the referral EPRs. DPSOE recommends denial to restore the applicant’s rank to SSgt as his commander acted within his authority to demote him. They further recommend denial of the portion of the applicant’s request for promotion to TSgt and promotion consideration to MSgt as current AF policy does not allow for “automatic” promotions. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In support of his request, the applicant states the issues have nothing to do with his being non selected for promotion to TSgt, or becoming ineligible for promotion consideration during cycle 11E6 because of a referral EPR or a driving under the influence (DUI) incident, which was shown to be “driving with an open container”. The issue is with the Administrative Demotion and the affect it has had on his career. According to AFI 36-2907, the action should have stated a specific incident(s), and date(s), it only addressed a specific singular incident and date. There was no mention of what improvement was expected. This shows the demotion action was not processed in accordance with the AFI. He is not looking for or expecting an “automatic promotion”, he is simply asking for promotion based on the procedures of the AFI not being followed. His argument isn’t a question of the commander’s action being just or within their authority. It is as was stated, “If proper procedure was or wasn’t followed in the administration of the action.” Furthermore, he finds it odd that there is no information about his demotion package in his permanent military records. It is also odd that the Freedom of Information Act (FOIA) office was unable to find a record of his demotions package within their network. He believes that if the commander actually had time during his/her busy schedule, he/she would agree with him that procedures had not been followed, the demotion action was unjustified and would remove the administrative actions from his records. He believes the referral EPRs were the result of the “perpetual punishment and treatment” after the fact of being demoted. He has provided copies of the referral reports along with previous and current reports to show how he was not allowed to move on and recover from the incident in question. He believes his Section Chief failed him in his specific duties as an NCO by not clearly communicating to him the requirements needed to complete the EPR in question. He further believes his commander was not provided the proper information to follow the requirements of the AFI regarding standards of proof for his demotion action. The applicant’s complete response, with attachments is at Exhibit F. 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, to include his rebuttal, in judging the merits of the case. After a thorough review of the evidence of records and the applicant’s complete submission, we find no evidence which would persuade us that the administrative demotion action should be removed. His contentions are duly noted; however, we do not find his uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provide by the Air Force offices of primary responsibility (OPRs). Furthermore, there was no evidence that the administrative actions were not properly processed in accordance with the appropriate Air Force instructions, or that the applicant’s substantive rights were violated, he was coerced to waive any of his rights, or the commander abused his discretionary authority. Therefore, we agree with the opinions and recommendations of the Air Force OPRs 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 persuasive 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-2015-02489 in Executive Session on 24 Feb 16, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02489 was considered: Exhibit A. DD Form 149, dated 1 Jun 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSIM, dated 27 Aug 15. Exhibit D. Memorandum, AFPC/DPSOE, dated 28 Aug 15. Exhibit E. Letter, SAF/MRBR, dated 2 Nov 15. Exhibit F. Letter, Applicant, undated, w/atchs. 5