RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02407
		INDEX CODE:  129.00

		COUNSEL:  XXXXX X XXXXXXX

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His record be changed to restore him to the grade of master sergeant (MSgt) and he be reinstated into his former supervisory position.

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APPLICANT CONTENDS THAT:

The few incidents his commander cites in his recommendation to demote do not support the demotion decision.  Counsel for applicant cites AFBCMR Docket number BC-2000-01271, wherein the Board noted when determining the appropriateness of a demotion, a squadron commander must consider the member’s entire military record and not a few unsatisfactory portions.  Counsel contends applicant has excelled as an Air National Guard (ANG) recruiter and has improved in the alleged questionable areas.  

Regarding the 21 September 1999 Letter of Admonishment (LOA) given to the applicant by his commander, counsel notes his commander spoke only with applicant’s supervisor – and did not speak to the applicant – when determining insubordination; the reason for the LOA.  Counsel questions the commander’s sole reliance on his phone call to the applicant’s supervisor and no other independent objective documentation that concluded the applicant refused to follow an order.  Applicant was told to direct his recruiting staff to visit high schools in their respective zones.  The charge that the applicant made a false statement to his supervisor indicating recruiters had been sent to the school, when they were not sent on that day was misunderstood.  Counsel states the LOA accepts only the supervisor’s account of the telephone calls and discounts the applicant’s statements otherwise.

Counsel argues that a second factor precludes the LOA charging the applicant with insubordination as the applicant was already responsible for sending recruiters to the high schools in question and his supervisor’s inquiry about the recruiters merely restated this duty and did not constitute an order.  Additionally, applicant did not make a false statement to his supervisor because the applicant believed he was being instructed to arrange school visits on future dates – which he did.  Counsel states the applicant’s supervisor never clearly stated his intention that the applicant carry out his order on that specific day.  Applicant believed the order was for a future date and that is a reasonable interpretation as it was highly unusual for recruiters to arrange high school visits for the same day.

On 27 February 2000, the applicant received a Letter of Reprimand (LOR) from his commander wherein he was charged with making false statements about his duties concerning a Recruiting program, even after the applicant had received earlier counseling for the same alleged misrepresentations.  Not only is the evidence for the LOR insufficient, the LOR never describes the false statements or explains why the statements were considered false.  The commander cannot recall the exact details of the false statements but indicated he clearly recalls that the applicant knowingly made a false statement to his supervisor.  

The commander’s basis for demotion action is too vague and lacks the evidence necessary to prove the applicant actually made a false statement.  The commander’s comment that “…a number of incidents” show the applicant did not fulfill his responsibilities as a master sergeant are not based on facts and therefore does not allow the applicant to defend himself.  

Counsel notes that the applicant was removed from his Recruiting Office Supervisor (ROS) position for allegedly failing to perform his assigned duties at an acceptable level.  The commander rebuts applicant’s claim of lack of evidence by stating he spoke with “some supervisors” in applicant’s chain of command, and the “overall consensus” was the applicant’s performance as a supervisor “did not meet the expectations of his superiors and those expected from a senior non-commissioned officer (NCO).”  As in the prior charges, counsel notes the commander never provides specifics such as which supervisors he spoke to leading again to the inability of the applicant to defend himself as he does not know with whom to refute the opinions.  Finally, counsel notes the applicant received an enlisted performance appraisal for the period 1 February 2000 to 7 August 2000, during which time applicant was removed from his ROS duties.  The commander’s attempt to direct the “Satisfactory” rating to the applicant’s ROS duties and not his recruiting skills is invalid.  The ROS duties and recruiting duties are inextricably linked.  Counsel notes applicant’s previous EPR’s as all being either “Superior” or “Excellent.”

In regards to the Letter of Counseling (LOC) the applicant received on 25 July 2002, Counsel states both charges – erroneous enlistment and failure to obtain a signed demotion letter – lack merit.  His commander indicates in the LOC the applicant is responsible for a new member enlisting into a career field he was not eligible to enlist in.  The enlistee joined the DCANG on 29 March 2001 and transferred to the medical squadron on 28 August 2001.  The transfer action was completed via an Air Force Form 2096, Classification On-The-Job-Training Action, which is used as a tool to transfer individuals within the unit at any time after the enlistment process.  The AF Form 2096 is not even signed by the applicant.  Regarding the demotion letter, upon questioning by the commander, the enlistee in question did not remember signing a demotion letter but did remember signing an overgrade letter on transferring to the medical squadron.  Whether or not an erroneous transfer to the medical squadron caused the enlistee to avoid a demotion would not have been a concern for the applicant as he was not in the loop for the transfer action.

The commander points to a problem with another enlistee enlisted by the applicant who thought she was enlisted into the DCANG as an airman first class (E3) for six years.  She was actually enlisted as an airman (E2) for six years.  She performed a whole year of duty before she complained about her grade.  That said, the applicant originally enlisted the enlistee into what was then considered a critical career field that entitled the enlistee to enlist in the grade of A1C.  During the enlistment process, the applicant called to verify the position was still vacant and found it was not.  Applicant told the enlistee there were no other critical career fields she was qualified to enlist in and offered her a position that enabled her to enlist as an airman (Amn).  She accepted the position and signed the enlistment contract to indicate such.  While he was processing the paperwork he noticed the new paperwork she had signed still showed her enlistment grade as A1C and not Amn.  After notifying her of the error, she signed the new paperwork.  Upon investigation of her claim, she stated she did not notice the disparity in pay as her drill pay was considered extra money. She did not know how to read her leave and earnings statements.  Before Basic Training, she had no idea what E1 meant as opposed to other military grades. Her pay was automatically deposited in her account and neither she nor her husband looked at the direct deposit statements.

Counsel states the AFBCMR has established that to prove the impropriety of a demotion, the service member must establish that: (a) the information constituting the basis for the demotion was erroneous; (b) the demotion action was contrary to governing regulations; or (c) there was an abuse of discretionary authority.  Counsel states applicant’s entire record of service defeats the demotion action.

In support of his appeal, the applicant has provided copies of a petition from counsel with several attachments.

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

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STATEMENT OF FACTS:

The applicant, a current member of the DCANG has served as a recruiter with the DCANG since April 1989.  He progressed through the ranks to the grade of master sergeant (E7) and served as the Recruiting Office Supervisor (ROS) for the DCANG from 15 February 1999 to 7 March 2000.

The applicant received an LOA for insubordination following incidents that occurred on 21 September 1999.  He was instructed by his supervisor to have recruiters visit high schools in their respective zones to which he agreed to do, and later that same day told his supervisor he had not followed through with his instructions and had known during the earlier conversation that his recruiters would not be going to the schools that day.  He also allowed a recruiter excessive time off for personal business during the period he was to have sent his recruiters on school visits.

On 27 February 2000, he received a LOR for making false statements regarding the Right Start program.

On 7 March 2000, he was removed from his Recruiting Office Supervisory position.

On 23 February 2001, he was issued and he signed a Change of Reporting Official (CRO) EPR for the rating period 1 February 2000 to 7 Aug 2000, wherein he was rated “Satisfactory”.  On 23 March 2001, he appealed the EPR.  There is no record of the outcome of his appeal.

On 25 July 2002, he received a LOC for making inconsistent statements surrounding an erroneous enlistment.  

In June 2003, he was accused of a recruiting irregularity by which an enlistee was promised an enlistment at one grade and then actually enlisted at a lower grade.

On 16 March 2004, he was demoted to the grade of technical sergeant (E6) effective and with a date of rank (DOR) of 10 March 2004 for failure to fulfill NCO responsibilities.  

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AIR FORCE EVALUATION:

ANG/DPPI states commanders have the responsibility to maintain good order and discipline in order to promote positive behavior within their command.  A Commander’s decision process involves subjective judgment calls that are made based on evidence.  While the member,s counsel states his entire record should be reviewed, one must remember that as a career military member, the level of responsibility increases with each promotion.  DPPI defers evaluation of this case to the AFBCMR.

DPPI’s complete evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant provided a short rebuttal with several letters of support from the applicant’s co-workers and chain of command.

Applicant’s complete evaluation, with attachments, is at Exhibit D.

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case including his assertion his entire career should be taken into account when considering a demotion.  In this regard, we noted a series of events to include recruiting irregularities, a pattern of behaviour and performance that led to administrative disciplinary actions and eventually a recommendation of demotion to the grade of technical sergeant by the applicant’s commander. Further, he appears to have disputed the evidence provided by his commander not so much for it’s inaccuracy but that it did not rise to a level that would support demotion.  We do not agree.  Other than his own assertions, the applicant has provided no evidence which would lead us to believe that the information provided is erroneous, or that his commander abused his discretionary authority. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2004-02407 in Executive Session on 7 July 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Jun 04, w/atchs. 
    Exhibit B.  Letter, ANGI/DPPI, dated 25 Mar 05, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 1 Apr 05.
    Exhibit D.  Letter, Counsel, dated 28 Jun 05, w/atchs.