RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04278 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His demotion to the grade of Senior Master Sergeant (SMSgt/E-8) be declared void and he be restored to the grade of Chief Master Sergeant (CMSgt/E-9). APPLICANT CONTENDS THAT: His demotion was illegal. At the time of the demotion, he was deployed on Title 10 United States Code (USC) orders. The Michigan Air National Guard’s (MI ANG) authority comes from Title 32 United States Code (USC), and they had no jurisdiction under the Uniform Code of Military Justice (UCMJ). Only the Mission Support Squadron (MSS) at Andrews AFB, MD had the authority to take such action, and chose not to pursue the matter. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the ANG on 30 Oct 79. According to the documentation submitted by the applicant: a.  Under Special Order Z651ZK, dated 23 Jun 14, the applicant deployed to Estonia, during the period 31 May 14 through 19 Jun 14. a.  On 17 Jul 14, he received a letter of reprimand (LOR). The reason for this action was that on or about 25 Jun 14, during a deployment to Amari Air Base, Estonia, he consumed a large amount of alcohol prior to and during dinner. Following dinner he violated AFI/ANGI policy for MEO/EEO, UCMJ, and MCMJ by disrespecting a superior commissioned officer, and disorderly conduct. He used profanity and threatened to physically assault a field grade officer. He used racially offensive and derogatory terms repeatedly regarding African Americans to African American subordinate members of his unit. When questioned by African American members of his unit on his actions, he repeated the derogatory items. Upon return from deployment he initially denied his conduct, but later admitted to it. b.  On 17 Jul 14, his commander notified him that he intended to recommend to the MI ANG Adjutant General (TAG) that he be demoted to the grade of SMSgt. Under Special Order ANG AE-1-M1, dated 1 Oct 14, the MI ANG TAG ordered the applicant be demoted, with prejudice, to the permanent grade of SMSgt in the MI ANG and as a Reserve of the Air Force, effective 1 Oct 14 and with a date of rank of 1 Oct 14. 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 F. AIR FORCE EVALUATION: NGB/A1PP recommends denial indicating there is no evidence of an error or an injustice. ANGI 36-2503, Administrative Demotion of Airmen, Paragraph 2 identifies demotion authorities. Paragraph 2.1 states, "TAG will exercise demotion authority for enlisted members serving in the ranks of Master Sergeant (MSgt), Senior Master Sergeant (SMSgt), and Chief Master Sergeant (CMSgt)." The applicant was on Title 10 non-contingency Temporary Duty (TDY) Orders at Amari Air Base, Estonia in support of Operation SABRE STRIKE 14 when the incident in question occurred. However, the demotion action occurred after his return from the TDY. ANGI 36-2503, paragraph 2.3 states, “Depending on an ANG enlisted member's military status, a member reduced in grade by court martial, judicial or non-judicial punishment under the UCMJ or State Military Code, is demoted to the same grade as a Reserve of the Air Force in the Air National Guard of the United States (ANGUS)." The applicant’s demotion was not illegal, as he was demoted with prejudice to SMSgt effective 1 Oct 14 for "Failure to fulfill Airman Responsibilities." While the 201st MSS, Andrews Air Force Base, MD does have administrative control (ADCON) for the period the member was on Title 10 orders, it is the policy of the 201st MSS that when there is not at least 30 continuous active duty days to adjudicate an action, such as short TDY periods, the home unit will assume ADCON after the member redeploys to home station. The Military Personnel Data System (MilPDS) reflecting Point Credit Accounting shows the applicant was on continuous active duty during the period of 31 May 14 to 18 Jun 14. Had the TDY been longer than 30 continuous days with enough time for the 201st MSS to adjudicate, they would have had ADCON for any administrative action. Since the TAG is the final authority and subsequently directed the demotion, there is no evidence to support the member's claim of error or injustice. A complete copy of the NGB/A1PP evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of his request, the applicant, through counsel, submits a rebuttal statement which takes exception to the NGB/A1PP advisory. He argues the NGB/A1PP advisory ignores AFI 33-328, Administrative Orders (16 Jan 07) and ANGI 36-2001, Management Of Training And Operational Support Within The Air National Guard, which both clearly indicate ANG commanders in Title 32 status have no command authority over members deployed in Title 10 status. Further, the advisory argues “had the TDY been longer (than) 30 days continuous with enough time for the 201st to adjudicate, they would have had ADCON for any administrative action.” That statement is meritless because it is not based on military law or regulations. The Michigan ANG never had ADCON while he was on Title 10 orders and thus they had no jurisdiction to impose the demotion in question. NGB/A1PP failed to seek a legal opinion from the Air National Guard JA or the Air Force Judge Advocate (TJAG) as this is a fundamental question of law (Exhibit D). ADDITIONAL AIR FORCE EVALUATION: ANGRC/JA recommends denial indicating there is no evidence of an error or an injustice. While the applicant’s counsel contends the MI ANG had no jurisdiction to impose the demotion in question and it must be reversed as a matter of law because they did not have ADCON, the administrative action of demotion is not the same as, and is wholly independent of, ADCON. The applicant’s demotion was within the authority of The Adjutant General (TAG) in accordance with AFI 36-2502, Enlisted Airman Promotion and Demotion Programs, dated 12 Dec 14, paragraph 11.1.2.1. The temporal analysis of when he was subject to the 201st MSS via ADCON is meaningless. It was appropriate for his unit to take administrative action for his misconduct that occurred while he was in a Title 10 position. His demotion was proper and within the purview of this commander. A complete copy of the ANGRC/JA evaluation is at Exhibit F. APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 4 Feb 16 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, to include his rebuttal, in judging the merits of the case; however, we agree with the opinions and recommendations of offices of primary responsibility (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 evidence to the contrary, we find no basis to recommend granting the requested relief. 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 issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-04278 in Executive Session on 24 Mar 16 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04278 was considered: Exhibit A.  DD Form 149, dated 16 Dec 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, NGB/A1PP, dated 25 Nov 14. Exhibit D.  Letter, SAF/MRBR, dated 18 Sep 15. Exhibit E.  Letter, Applicant, dated 15 Oct 15 w/atchs. Exhibit F.  Memorandum, ANGRC/JA, dated 2 Feb 16. Exhibit G.  Letter, SAF/MRBR, dated 4 Feb 16.