RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04381 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His original date of rank (DOR) to the grade of Airman First Class (A1C, E-3) be restored. APPLICANT CONTENDS THAT: On 10 November 2011, a motor vehicle accident caused him to sustain moderate to severe Traumatic Brain Injury (TBI), which resulted in the behavior that caused him to lose his rank. In support of his request, the applicant provides a letter from his father stating in part that all of his son’s problems came about after his near fatal motor vehicle accident and up until that point, he was rated a stellar exemplary Airman. The applicant also provides copies of AFPC/DPFDD’s letter dated 5 June 2014, his EPRs covering the period from 1 November 2010 thru 28 May 2014, AF Form 3070a, Record of Nonjudicial Punishment (AB – TSgt) and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 November 2010, the applicant enlisted in the Regular Air Force. According to a narrative summary dated 21 August 2013, the applicant sustained a TBI and other injuries from a serious motor vehicle accident on 11 November 2011. According to AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 18 April 2014, the Informal Physical Evaluation Board (IPEB) found the applicant unfit and recommended his placement on the Temporary Disability Retired List (TDRL). The IPEB stated the applicant did not have any occupational, discipline, or legal problems until after the head injury. Via Special Order ACD-02345 dated 13 June 2014, the Secretary of the Air Force Personnel Council (SAFPC) directed the applicant be placed on the TDRL effective 29 August 2014, in the grade of A1C, with a compensable percentage for physical disability of 100 percent. He was credited with 3 years, 9 months and 28 days active service for retirement. 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 Exhibit C and D. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or injustice. On 7 January 2013, the applicant was offered Nonjudicial Punishment (NJP) for having an unauthorized guest in his dorm room, in violation of Article 92, Uniform Code of Military Justice (UCMJ) and wrongfully using Adderall, a controlled substance, in violation of Article 112a, UCMJ. After consulting with an attorney, the applicant accepted the NJP, submitted written statements and requested a personal appearance before his commander. On 10 January 2013, the applicant’s commander found that he committed both offenses and punished him with a reduction from the grade of A1C to airman basic (E-1) with the reduction below airman (E-2) suspended, forfeitures of $758.00 pay per month for two months, suspended, restriction to the limits of the base for 30 days, 15 days extra duties, and a reprimand. On 15 January 2013, the applicant decided not to appeal his commander's decision. The action was placed in his unfavorable information file and underwent a legal review on 15 January 2013. On 5 June 2014, in a completely separate action, SAFPC determined that the applicant would be placed on the TDRL and retired in the grade of A1C. This action had no bearing on the NJP given the separate processes, evidence considered and standards of proof, and it does not entitle him to get his stripe back with a new DOR. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE recommends denial. A legal review was conducted and the NJP action was found to be legally sufficient. The commander acted within his authority in accordance with policies and procedures when he directed the applicant be demoted. A review of the applicant’s record reveals he received a referral EPR for the period 2 July 2012 – 28 May 2013. In accordance with AFI 36-2502, Airman Promotion/Demotion Programs, this is a promotion ineligibility condition. On 5 June 2014, the Director, SAFPC, determined that the highest grade the applicant satisfactorily served on active duty was A1C and directed the he be placed on the TDRL in the grade of A1C effective 29 August 2014. The highest grade determination is for retirement purposes only. Therefore, the DD Form 214 correctly reflects the grade (E-2) he held at the time of discharge. As AFLOA/JAJM stated in their advisory opinion, the applicant is not entitled to restoration of rank or any back pay as a result of SAFPC’s determination on retirement eligibility for medical purposes. The applicant did receive a nonreferral EPR for the period 29 May 2013 – 28 May 2014, rendering him eligible for promotion to A1C with a DOR and effective date equal to the close out date of the report, provided he had his commander’s recommendation. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 31 July 2015, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days (Exhibit E). 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 note that AFPC/DPSOE states the applicant was eligible for promotion consideration to the grade of A1C with a DOR and effective date equal to the close out date of the report ending 28 May 2014, provided he had his commander’s recommendation. However, after a thorough review of the available evidence and the applicant’s complete submission, we find no evidence which would persuade us that his DOR to the grade of A1C should be changed. Therefore, we agree with the recommendations of the Air Force OPRs and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. 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-2014-04381 in Executive Session on 29 September 2015, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to was considered: Exhibit A. DD Form 149, dated 23 October 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 9 June 2015. Exhibit D. Memorandum, AFPC/DPSOE, dated 2 July 2015. Exhibit E. Letter, SAF/MRBR, dated 31 July 2015.