RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-03854
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Reversal of his demotion action, reinstating his rank of technical sergeant (E-6).  

APPLICANT CONTENDS THAT:

His demotion to the rank of staff sergeant (E-5) effective 4 Jan 12, as a result of the failure of four fitness assessments (FA) between 29 Jan 10 and 28 Oct 11, should have been reversed and his rank of E-6 restored when on 29 Jul 14, the AFBCMR directed that two of his four fitness assessment (FA) failures be removed from his records.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 21 Feb 96. 

On 6 Jan 12, Special Order SO AA – 005, directed the applicant be demoted from the permanent grade of E-6 with a date of rank (DOR) and effective date of 1 Mar 07, to the permanent grade of E-5, with DOR and effective of 4 Jan 12.  

On 29 Jul 14, the AFBCMR directed that FAs dated 29 Oct 10, 28 Oct 11, and 16 Nov 12 be declared void and removed from the Air Force Fitness Management System.  

On 31 Jul 14, the applicant was furnished an honorable discharge, retired effective 1 Aug 14, with a narrative reason for separation of “Voluntary Retirement Temporary Early Retirement,” and was credited with eighteen years, five months, and ten days of active service.

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

AIR FORCE EVALUATION:

AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice.  In accordance with (IAW) AFI 36-2905, Fitness Program, 1 Jul 10, Chapter 9, Paragraph 9.1.2., Unit Commanders or equivalent may take adverse administrative action upon a member’s unsatisfactory fitness score on an official FA.  Attachment 19 provides commanders guidance when selecting the appropriate administrative and personnel actions for members who fail to attain physical fitness standards.  This table recommends demotion and separation on the fourth failure; however, that is not binding and a commander could still seek administrative demotion even on the first failure.  Unit CCs exercise complete discretion in selecting responsive action(s). Commanders may use more than one action per failure.  A review of the applicant’s record reflects that he received three referral EPRs between 14 Mar 08 and 13 Mar 11 for failure to meet fitness standards prior to his demotion on 4 Jan 12.  He received a referral EPR for the period 14 Mar 11 – 13 Mar 12 for the demotion statement based on his FA failures, and another referral for the period 14 Mar 12 – 13 Mar 13 for failure to meet fitness standards.  

On 29 Jul 14, the AFBCMR directed two of the four FAs within that timeframe be removed from the applicant’s record.  They also directed a third FA, dated 16 Nov 12, be removed.  The directive did not mention the demotion action as the applicant did not specifically request restoration of rank.  The applicant retired 1 Aug 14 in the grade of E-5 after serving 18 years, 5 months, and 10 days on active duty.  They opined that the demotion action taken against the applicant was procedurally correct based on the information available to the commander at the time.  The commander acted within his authority to demote the applicant from E-6 to E-5 for his failure to maintain fitness standards.  Although the applicant’s new commander supported the removal of the contested FAs, he did not make a promotion (restoration of rank) recommendation.  They therefore recommend denial of applicant’s request to remove the demotion action and restore his rank to E-6.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes the validity of the conclusion of the advisory opinion calling attention to the OPR’s remarks “Unit CCs exercise complete discretion in selecting responsive actions” after saying “a commander could still seek administrative demotion even on the first failure.”  In further support of his request he includes a signed memorandum, dated 4 May 16, from the squadron commander who presided over his demotion action.  The commander stated that he understands the guidelines set forth in AFI 36-2905, Attachment 19, are not binding nor absolute and he could have pushed for demotion even after one fitness assessment failure.  However, that was never his intent.  With two failures on record, as it stands now, he would not have recommended demotion for the applicant.  For that reason, he supports the applicant’s request and believes the demotion action should be reversed with full reinstatement of his rank to E-6.

A complete copy of the applicant’s response is at Exhibit E.

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 an injustice.  After a thorough review of the evidence of record and the applicant’s complete submission we believe the applicant is the victim of an injustice.  While we note the comments of AFPC/DPSOE indicating that relief should be denied because the applicant’s new commander supported the removal of the contested FAs, but did not make a promotion recommendation, we believe a preponderance of the evidence substantiates that corrective action is warranted.  In this respect, we note that a previous Board determined the applicant met his burden of establishing that his contested FAs that resulted in his demotion should be declared void.  That corrective action coupled with the favorable, 4 May 16, memorandum from the squadron commander who presided over the demotion action convinces us to recommend granting the requested relief.  Therefore, 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:

a. Special Order SO AA-005, dated 6 January 2012, is rescinded.

	b. His rank of technical sergeant (E-6) is restored with a date of rank (DOR) and effective date of 1 March 2007.  

The following members of the Board considered AFBCMR Docket Number BC-2015-03854 in Executive Session on 21 Jul 16, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 31 Aug 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOE, dated 4 Feb 16.
	Exhibit D.  Letter, SAF/MRBR, dated 13 Apr 16.
	Exhibit E.  Letter, Applicant, dated 5 May 16, w/atch.

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.