RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-03339 

   						COUNSEL:  NO

HEARING DESIRED:  NO

APPLICANT REQUESTS:

As amended in his rebuttal (Exhibit G):

	1.  Void and remove Special Order D-007, dated 19 Apr 16, from his records, including the demotion package demoting the applicant to the grade of technical sergeant (TSgt) with a date of rank (DOR) and effective date of 2 Mar 16.

	2.  Reinstate him to the grade of master sergeant (MSgt) with a DOR and effective date of 1 Oct 15, with all retroactive back pay to include entitlements.

3.  Strike his EPR's covering the period 1 Oct 15 through the present from his record and replace it with a AF Form 77, Letter of Evaluation, stating “No evaluation available for the period 1 Oct 15 through" the date of record correction "for administrative reasons which were not the fault of the member."

4.  Grant him supplemental promotion consideration to the grade of senior master sergeant (SMSgt) for all appropriate cycles beginning with Cycle 18E8.

5.  Manually enter a promotion consideration board score of 450 due to the lack of performance reports in the grade of MSgt, and his not being given the opportunity to fill assignments to match what should have been the rank of MSgt.

6.  Grant him sufficient time to complete course 14 Senior Noncommissioned Officer Distance Learning as well as any other requirements for testing for Cycle 18E8.  

7.  Remove the police report of the incident from his record.  

APPLICANT CONTENDS:

1.  His squadron commander’s “unjust accusation” he had a substance abuse problem was both unfounded and without merit.  He is neither qualified to make that assessment, nor was it in his rights to initiate the demotion.  

2.  The squadron commander who initiated his demotion (Commander of the 901st Special Operations Aircraft Maintenance Squadron, or “901st SOAMXS”) was not his commander since he was assigned to the 1st Special Operations Maintenance Group (“1st SOMXG”).  Thus, the 901st SOAMXS squadron commander had no right to initiate the demotion under AFI 36-2502, Airman Promotion/Demotion Programs. 

3.  Since he was not convicted of the accusation, and had not been evaluated by the Alcohol and Drug Abuse Prevention Treatment (ADAPT) Program to determine if he was able to perform his job safely or successfully, his demotion was unwarranted.  His squadron commander’s initiation of administrative demotion was frivolous because the commander had not received an ADAPT assessment on him as required by AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program.  The fact he was turned away from ADAPT after receiving a referral nullifies the concern of substance abuse. 

4.  He did not fail to meet his Senior NCO responsibilities under AFI 36-2618, The Enlisted Force Structure, because he completed an off-base substance abuse course and evaluation on his own accord, prior to the initiation of demotion.

5.  In a summary report of hearings by the Subcommittee on Constitutional rights of the Committee on the Judiciary United States Senate, it states “to the extent that the armed services use administrative action to circumvent protections provided by the Uniform Code, the intent of Congress is thwarted and the constitutional rights of service personnel are jeopardized,” and “The subcommittee’s premise is that adequate protection of the accused serviceman’s rights demands that he not suffer serious punishment at the hands of a tribunal which lacks a ‘judge’.”

6.  His demotion was not performed constitutionally or in compliance with the Air Force Instruction (AFI).  His constitutional due process rights under the Fifth Amendment were violated because he had the right to remain silent on the matter, he was not able to face his accuser regarding the administrative demotion, he was not able to adequately defend himself for the administrative demotion process because his attorney advised him not to talk about his pending criminal case, and the demotion action resulted in his losing a “large portion” of his pay that was required to maintain the assistance of his attorneys.

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

STATEMENT OF FACTS:

On 25 Oct 15, the applicant was arrested in Florida under suspicion of Driving Under the Influence (DUI), and his breath alcohol tests of .262 and .256 percent were in excess of the legal limit of .08 percent to operate a motor vehicle in Florida.  (Exhibit C) 

On 19 Jan 16, the applicant’s commander initiated demotion action to reduce the applicant in grade from MSgt to TSgt.  The applicant consulted legal counsel, requested a personal hearing before the commander, and submitted written material on his own behalf.  

On 4 Feb 16, the commander determined demotion was appropriate.  The entire case was subsequently reviewed and determined to be legally sufficient.  The applicant appealed the demotion decision to the appellate authority.  

On 30 Mar 16, the appellate authority reviewed the demotion package, and denied the applicant’s request to be reinstated in the grade of MSgt.  

Under Special Order D-007, dated 19 Apr 16, the applicant was demoted to the grade of TSgt with a DOR of 2 Mar 16.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits D, E, and H.    

AIR FORCE EVALUATIONS:

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  

1.  The administrative demotion action is based on the applicant’s failure to fulfill his noncommissioned officer (NCO) responsibilities (i.e., operating a vehicle while intoxicated with a blood/breath alcohol concentration in excess of the legal limit in Florida) and appears supported in both law and fact.  While the evidence indicates the applicant was administratively demoted from the grade of MSgt to TSgt prior to final adjudication of the suspected DUI offense by the civilian authorities, the applicant does not provide evidence to refute the initial law enforcement report showing he was, in fact, operating a motor vehicle with a blood/breath alcohol level well above the legal limit in Florida.  Such conduct falls far below what is expected of any NCO, and administrative demotion under these circumstances is common practice throughout the Air Force.

2.  The applicant’s assertion the 901st SOAMXS Commander had no right to initiate demotion under AFI 36-2502 is deficient.  Although the case file indicates the applicant was assigned to the 1st SOMXG at the time of the DUI incident through completion of the administrative demotion action, the applicant’s record indicates a commander-subordinate relationship existed between himself and Major “G” (the 901st SOAMXS Commander).  The applicant fell under the administrative control (ADCON) of the SOAMXS commander and, regardless, the applicant was under the command of the demotion authority.

3.  The applicant’s reliance on AFI 44-121 ADAPT program assessment procedures to assert the demotion action was unauthorized is unfounded.  We also disagree with his assertion he did not fail to meet his SNCO responsibilities under AFI 36-2618 because he completed a substance abuse course and evaluation on his own accord, prior to the initiation of demotion.  The case file clearly shows the administrative demotion was based on the applicant having operated a motor vehicle on 25 Oct 15 with a blood/breath alcohol level well above the legal limit in Florida – such behavior amounted to excessive or irresponsible consumption of alcohol, as well as a failure to fulfill the responsibilities of a SNCO.  The demotion authority had a sufficient factual and legal basis to demote the applicant to the grade of TSgt.

4.  The applicant also failed to provide sufficient evidence of material error or injustice to support the claim his Constitutional due process rights were violated during the administrative demotion process.  The case file indicates the demotion action was processed properly in accordance with the governing instructions and was not an abuse of discretionary authority.

5.  The applicant did not sufficiently demonstrate any material error or injustice which exists that would warrant granting his request.

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

AFPC/DP2SPP recommends denial, indicating there is no evidence of an error or injustice.  The demotion action was procedurally correct and there is no evidence there were any irregularities or the case was mishandled in any way.  The commander acted within his demotion authority for the applicant’s failure to fulfill his SNCO responsibilities.  Furthermore, AFPC/JA determined the administrative demotion action was legally sufficient.  Recommend denial.  

A complete copy of the AFPC/DP2SPP evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In further support of his requests the applicant, through counsel, submitted a rebuttal to the Air Force evaluations in which he takes exception to the recommendations to deny.  He states he was cleared of all misconduct related to his arrest pursuant to Florida law; no UIF, LOC, or LOR existed at the time of the demotion: there were no signs of driving under the influence, and it was proven the arresting office manipulated the breathalyzer test to generate false readings; cites multiple laws, regulations, and Federal Rules of Evidence (FRE); and, highlights four prior AFBCMR cases which he contends are precedent setting for his case.  The four cited cases are:

a)	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.

b)	In BC-2014-04230, the board recognized the adverse impact the LOR, UIF and administrative demotion has had on the applicant and were persuaded particularly that the applicant was arrested for DUI without probable cause and that the case was dismissed and his record expunged of the arrest.

c)	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.

d)	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."

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.

Finally, he reiterates the multiple contentions from his original application, and states he could find no reference to an authorization to administratively demote an enlisted member for an off-base DUI offense.  (Exhibit G) 

ADDITIONAL AIR FORCE EVALUATION:

After reviewing the applicant’s rebuttal, AFPC/JA again recommends denial indicating there is no evidence of an error or an injustice. After numerous delays in the civilian judicial process, on 7 Sep 16, a motion to suppress was filed by the applicant’s attorney.  On 13 Sep 16, the motion to suppress was granted, and a motion to dismiss the only charge was also granted.  There is no record available of what the motion to suppress was in relation to, or why the civilian charges were dismissed.  

The applicant claims the charges were dismissed “on the grounds that there were no signs of driving under the influence.  Additionally, it was proven that the officer manipulated the breathalyzer test to generate false readings.”  The standard of proof for a civilian criminal trial is “beyond a reasonable doubt.”  This differs from the standard of proof for an administrative demotion, which is the lesser standard of proof of “preponderance of the evidence.”  Below is a list of the information the commander, demotion authority, and appellate authority had before them during the demotion process.  If the Board were to assume it was the breathalyzer test results that were suppressed, then according to the police report, there were still the following indicators (1-7) of driving under the influence:

(1) The applicant was driving so erratically a concerned member of the public followed the applicant and called the police with a description of the vehicle, to include the license plate number; 
 
(2)	The applicant nearly struck a police vehicle while attempting a U-turn on the highway;

(3)	The applicant exhibited slow and slurred speech, as well as bloodshot and watery eyes;

(4)	The applicant admitted to drinking two beers prior to driving;

(5)	The deputy making the traffic stop smelled alcohol coming from the vehicle initially, and then coming from the applicant once he exited the vehicle; 

(6) The applicant swayed and almost fell down multiple times while interacting with the Deputy;

(7) The applicant performed poorly enough on the standard field sobriety tests that he was transported to the county jail in order to provide a breath sample; and,

(8) The applicant provided two breath samples, which measured a breath alcohol concentration of 0.262 and 0.256 grams of alcohol per 210 liters of breath.

This office’s previous advisory explains the appropriate Air Force Instructions, JAA opinions, and court cases that have established the Air Force-wide practice of permitting commanders to demote Air Force non-commissioned officers when there is evidence they failed to fulfill the responsibilities of a Senior NCO.  It is clear from the record, and as has been explained in this office’s prior advisory, the Air Force followed its internal rules when processing the applicant’s demotion.  The applicant’s attorney also expressed an inability to find authorization for a commander to demote a member for an off-base DUI.  We have attached the OpJAGAF 2012-14, dated 22 October 2012, to more thoroughly explain the legal and administrative authorities.

Recommend the Board deny the applicant’s request. 

A complete copy of the AFPC/JA’s additional evaluation is at Exhibit H.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In further support of the applicant’s request he submitted an additional rebuttal, through counsel, taking exception to the additional AF advisory.  He contends all observations made in police reports in criminal cases are considered hearsay and the officer must testify to its contents under oath.  This information cannot be considered factual background as portrayed in the most recent advisory opinion by HQ AFPC/JA.   AFI 36-2603 states the AFBCMR “Is not an investigative body,” however, AFPC/JA conducted an investigation into the reason for off-base dismissal.  During this process, they received and presented documents not included or considered in the demotion package.  The addition of these documents, if allowed, would present the appearance the applicant is currently on trial and not merely a process to correct a wrongdoing.  Please omit these documents from your deliberations.  The applicant is in the process of having this information expunged and has already received the state prosecutor’s eligibility approval to proceed.  Further, AFI 1-1 stated “AFIs do not provide optional guidance, and failure to comply with AFIs can result in disciplinary action.”  It is important to note the most recent 12 Dec 14 version of AFI 36-2502 changed to say “do not use administrative demotion when it is more appropriate to take actions specified by the UCMJ.”  The demotion was directly linked to a UCMJ violation.  The applicant has proven he has not failed to fulfill responsibilities listed in AFI 26-2618, The Enlisted Force Structure, as had been alleged.     

THE BOARD CONCLUDES:

1.  The application was timely filed.

2.  The applicant has exhausted all remedies provided by existing law or regulations.

3.   After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The applicant’s contentions are duly noted; however, the applicant’s case has undergone an exhaustive review by AFPC/JA and the Board did not find the evidence provided, sufficient to overcome their assessment of the case.  Therefore, the Board agrees with the opinions and recommendations of the Air Force offices of primary responsibilities and adopt the rationale expressed as the basis for its conclusion that the applicant has failed to sustain his burden of proof that he has suffered from an error or injustice.  As such, the Board recommends against correcting the applicant’s records.  In view of the above and in the absence of evidence to the contrary, the Board finds no basis to recommend granting the relief sought in this application.
4.  The applicant also asserts, in essence, that relief is warranted based on precedence and cites several AFBCMR cases he believes supports his request. However, the Board disagrees.  Every case before this Board is considered on its own merit since the circumstances of each case are seldom identical.  After a careful review of the cases provided by the applicant the Board finds all of them distinguishable from the applicant’s request as none of the cases are comparable. In this respect, the Board notes in BC-2014-04230, the Board recognized the adverse impact the LOR, UIF, and administrative demotion had on the applicant and were persuaded particularly that the applicant was arrested for DUI without probable cause and the case was dismissed and his record expunged of the arrest.  Additionally, the applicant had a letter from his former squadron commander which stated, in part, he would have seriously considered recommending reinstatement to the higher grade if the charges were dropped. 

In BC-2014-01904, the applicant’s commander recommending the applicant’s grade be restored and it was administratively resolved.  

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

In BC-2002-04099, the Board removed a Promotion Recommendation Form (PRF) from the applicant’s record, stating the PRF was unduly harsh and lacking a basis of justification.  The Board also noted that it was unusual for them to recommend changing a PRF and granting consideration for promotion without the support of the senior rater.  However, other than a direct promotion which they did not support, they recommended the PRF be removed. 

In BC-2014-04230, BC-2014-01904 and BC-1997-00124 the applicant’s superiors, who were in a far better position than the Board to adjudge the facts on the individual situation, made recommendations in support of the applicants.  However, in the instant case, the applicant has not provided such evidence.  BC-2002-04099 pertains to a Performance Recommendation Form (PRF) and the instant case is about administrative demotions.  Therefore, the Board does not find that any of these cases are identical to the applicant’s or that they support his request for relief.  In view of the above and in the absence of evidence to the contrary, the Board finds no basis to recommend granting any of the relief sought in this application.

THE BOARD DETERMINES:

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-2016-03339 in Executive Session on 27 Jun 18 under the provisions of AFI 36-2603:

Chair
Member
Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-03339 was considered:

	Exhibit A.  DD Form 149, dated 12 Aug 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records [Excerpt].
	Exhibit C.  Civilian Arrest Report, dated 25 Oct 15. 
	Exhibit D.  Memorandum, AFPC/JA, dated 12 Sep 17.
	Exhibit E.  Memorandum, AFPC/DP2SPP, dated 12 Sep 17.
	Exhibit F.  Letter, SAF/MRBR, dated 21 Nov 17.
	Exhibit G.  Letter, Applicant, dated 11 Dec 17. 
	Exhibit H.  Memorandum, AFPC/JA, dated 8 Mar 18, w/atch. 
	Exhibit I.  Letter, SAF/MRBR, dated 6 Apr 18.
	Exhibit J.  Letter, Applicant, dated 4 May 18.    

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