RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03126 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Administrative Demotion to Senior Airman (E-4) be removed from his record and his Staff Sergeant (E-5) rank instated. His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect a retirement grade of SSgt. APPLICANT CONTENDS THAT: His unit leadership discriminated against him based on the fact he was on medical hold for an ongoing Medical Evaluation Board; which, culminated in his demoted from SSgt to SrA on 12 Mar 13. He injured his knee in Jan 09 and this injury required surgery which later was the primary basis for his 2010 MEB. He was put on medical hold past his date of separation of Oct 11, nearly three years after his initial injury. He believes if his MEB would have been completed in a timely manner, he would have retired as a SSgt. His primary care physician wrote a narrative summary on 7 May 10 that stated: “He feels that this unit has not been supportive of medical guidance relating to his Duty Limiting Condition (DLC). He states that his medical condition seems to be hurting his career and is delaying his advancement.” He believes the physician’s statement further proves his unit treated him unfairly during the MEB process. He served in the grade of SSgt for nearly eight years and was demoted to SrA seven weeks before the final MEB decision to be medically retired. The letter from Secretary of the Air Force Personnel Council stated that he was demoted for failing to attain physical standards. He argues that since the MEB concluded he was unfit for duty based on his medical condition, then it is only fair to conclude the demotion was unjust, as it was directly related to that same medical condition which had existed for the past three years. His appeal is not about getting more money for his disability retirement. His Retiree Account Statement shows as a SrA earns $1,440 per month; whereas, a SSgt earns approximately $1,770 per month. The Department of Veterans Affairs (DVA) awarded him a disability rating of 90 percent; which entitles him to $1,962 a month. Since the DVA amount is larger than either the SrA or SSgt retirement, his retired pay is waived in lieu of the DVA disability amount. This is a matter of principle. He should have retired as a SSgt. In support of his request, the applicant has provided a personal letter detailing his dispute, a copy of his Medical Evaluation Board Narrative Summary, multiple electronic mails which show status inquiries to his MEB, a copy of the final MEB decision, dated 3 May 12, copies of Enlisted Performance Reports, a copy of an awarded Joint Service Commendation Medal, dated 18 May 08, and a copy of his December 2013 Retiree Account Statement. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 14 Nov 00. On 27 Jan 12, the applicant was notified by his commander that he was being recommended for an Administrative Demotion in accordance with AFI 36-2502, Airman Promotion/Demotion Program, Chapter 6, paragraph 6.3.5. for failing to maintain or demonstrate the ability and willingness to attain physical standards according to AFI 36-2905, Fitness Program. The applicant consulted counsel, non-concurred with the proposed demotion, provided a statement on his behalf and requested a personal hearing. On 15 Feb 12, the commander carefully reviewed the matters presented by the applicant and decided to continue processing the demotion action. This action was based on the fact he had failed five Fitness Assessments (FAs) since September 2010. On 29 Feb 12, the Staff Judge Advocate reviewed the demotion package, found it legally sufficient and recommended approval. On 13 Mar 12, the Mission Support Group Commander directed the applicant be demoted to the grade of Senior Airman with a new dated of rank of 13 Mar 12. On 2 Apr 12, the Wing Commander reviewed the demotion file of the applicant, denied his appeal and upheld the demotion action. On 3 May 12, the Secretary of the Air Force Personnel Council directed the applicant be Permanently Retired with a disability rating of 60 percent under the provisions of Title 10, United States Code, Section 1201. They also acknowledged that the applicant was demoted from the rank of SSgt to SrA effective 13 Mar 12 in accordance with AFI 36-2502, Chapter 6, paragraph 6.3.5., for failure to maintain or demonstrate the ability and willingness to attain physical standards, according to AFI 36- 2905. They determined that the applicant did not serve satisfactory in the grade of SSgt and should be separated as a SrA within the meaning of Title 10, U.S.C., Section 1372. On 28 Jul 12, the applicant retired with an Honorable discharge, and was credited with 11 years, 8 months, and 15 days of active service. The applicant’s DD Form 214 reflects a grade of SrA and rank of E-4. 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. AIR FORCE EVALUATION: AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice. The commander acted within his authority to demote the applicant from SSgt to SrA, in accordance with AFI 36-2502, Chapter 6, paragraph 6.3.5. The applicant received no less than 14 poor, marginal or unsatisfactory Fitness Assessments (FAs) throughout his Air Force career. Since 2010, he had received five unsatisfactory FAs. After considering the applicant’s appeal and the Staff Judge Advocate’s legal review, the demotion authority approved the demotion action. On 3 May 12, the Secretary of the Air Force directed the applicant be permanently retired with a disability rating of 60 percent. They further determined the applicant did not serve satisfactorily in the grade of SSgt and therefore should be separated as a SrA. It is their opinion the demotion action taken against the applicant was procedurally correct and there is no evidence there were any irregularities or that the case was mishandled in any way. A legal review was conducted and found the file legally sufficient as the actions taken were permissible administrative actions taken at the discretion of the applicant’s commander. A complete copy of the AFPC/DPSOE evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 30 Jan 15 for review and comment within 30 days (Exhibit D). 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 opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its 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-2014-03126 in Executive Session on 25 Jun 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-03126 was considered: Exhibit A. DD Form 149, dated 30 Jul 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOE, dated 1 Oct 14. Exhibit D. Letter, SAF/MRBR, dated 30 Jan 15.