RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04955 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. Removal or correction of his referral Enlisted Performance Report (EPR) for the period of 6 Mar 11 through 5 Mar 12. 2. His administrative demotion be removed and his rank of Technical Sergeant (TSgt) be restored and he receive back pay to correct this injustice. APPLICANT CONTENDS THAT: On 21 Sep 12, he was wrongfully demoted to Staff Sergeant (SSgt) by the 49th Vice Wing Commander, who was not the proper demotion authority per AFI 36-2502, Airman Promotion/Demotion Programs, Chapter 6, paragraph 6.2.1 and who was not a commander on G-series orders. Furthermore, the commander acting as the appellate authority in his case was the 49th Wing Commander, was not the proper appellate authority per AFI 36-2502, Chapter 6, paragraph 2.3.3. In fact, the Wing Commander should have been the demotion authority, given that the applicant was assigned as part of the Wing Staff Agency and there was no Group Commander equivalent assigned to the Wing Staff Agency. The appellate authority in his case should have been the 12th Air Force Commander; as such he was denied a proper appeal process. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of Staff Sergeant. On 3 Jan 11, the applicant failed his Fitness Assessment (FA) with a score of 71. On 16 Nov 11, the applicant failed his FA with a score of 63.22. On 12 Mar 12, the applicant failed his FA with a score of 66.80. On 27 Jun 12, the applicant failed his FA with a score of 74. On 12 Jul 12, the applicant’s rater, referred his EPR rendered for the period of 6 Mar 11 thru 5 Mar 12. The applicant elected not to provide comments to the referral memorandum. On 16 Jul 12, the applicant was notified by his commander that he intended to recommend to the 49th Vice Wing Commander he be demoted in accordance with AFI 36-2502, Chapter 6, paragraph 6.3.5., for failure to keep fit. On 19 Jul 12, the applicant non-concurred with the proposed demotion action, advised he planned on submitting a statement on his behalf, requested a personal hearing before the initiating commander, and had consulted legal counsel. On 23 Jul 12, the applicant’s additional rater concurred with the rater’s assessment related to the EPR rendered for the period of 6 Mar 11 thru 5 Mar 12. On 31 Jul 12, the initiating commander decided to proceed with this recommendation to the 49th Vice Wing Commander to demote the applicant to the rank of Staff Sergeant for failing to keep fit. On 7 Aug 12, the 49th Vice Wing Commander approved the applicant’s demotion. On 19 Sep 12, the Vice Wing Commander, denied the applicant’s appeal and forwarded the case to the appellate authority for final action. On the same date, the 49th Wing Commander, carefully considered the administrative demotion of the applicant and denied his appeal. 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. In Accordance With (IAW) AFI 36-2502, paragraph 6.2.1, the group commander, or equivalent level commander, may demote Master Sergeants (MSgt) and below. Equivalent level commander is defined as a senior Air Force officer in the grade of colonel. EXAMPLE: An Air Force officer in charge of an Air Force Element or a commander above the squadron level. Note: Higher levels of command may also demote, but group commander is the lowest level of authority. Since the applicant worked at the Wing level, there was no group level involvement. Therefore, his Wing Vice Commander was the demotion authority. The applicant further contends that the 49th WG/CC was not the proper appellate authority. However, IAW AFI 36-2502, paragraph 6.2.3, the appellate authority is the next higher level commander and handles demotion appeals. Since the WG/CV was the demotion authority in this case, the WG/CC was the next higher level commander and, therefore, the appellate authority. Legal reviews of the proposed administrative demotion and appellate review were conducted on 6 Aug 12 and 6 Sep 12. They were both found to be legally sufficient. 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. IAW AFI 36-2502, paragraph 6.3.5., Airmen may be demoted for failing to maintain or demonstrate the ability and willingness to attain physical standards. IAW AFI 36-2905, Fitness Program, Chapter l0, Paragraph 10.1.2., Unit Commanders or equivalent may take adverse administrative action upon a member's unsatisfactory fitness score on an official FA. Attachment 14 provides commanders guidance when selecting the appropriate administrative and personnel actions for members who fail to attain physical fitness standards. Unit CCs shall make a discharge or retention recommendation to the Installation CC (or special/general court-martial convening authority in the member's chain of command) when an individual remains in the Unsatisfactory fitness category for a continuous 12-month period or receives four Unsatisfactory FA scores in a 24-month period. In this case, the commander could have recommended administrative separation due to the applicant's four failures within a 24-month period. Instead, he elected administrative demotion. A complete copy of the AFPC/DPSOE evaluation is at Exhibit C. AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice. The applicant has not provided sufficient substantiating documentation or evidence to prove his assertions that the contested evaluation was rendered unfairly or unjustly. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. It is determined that the report was accomplished in direct accordance with all applicable Air Force policies and procedures. We contend that once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual's record. The burden of proof is on the applicant. The applicant has not substantiated that the contested report was not rendered accurately and in good faith by all evaluators based on knowledge available at the time. The applicant contends that the contested referral EPR should be removed due to a wrongful demotion. In this case, the applicant was demoted for failing to maintain or demonstrated the ability and willingness to attain physical fitness standards for a total of four times within a twenty-four month period. In Section III, Block 3, of the referral EPR the applicant has a rating of "Does Not Meet" for the failure of a fitness test. IAW AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 1.4.10.1.4. "Does Not Meet Standards" is defined as having less than a passing fitness score, or noncurrent as defined IAW AFI 36-2905. A score of less than passing, or an expired fitness test without a valid exemption, requires the evaluation to be referred. Evaluators must comment (Section IV, OPR and Section III, EPR) on a ratee who does not meet standards. Only in this case is the evaluator authorized to comment on the ratee's fitness score and progress in the Fitness Improvement Program. It was ultimately the applicant's responsibility to be ready to successfully pass the required fitness evaluation in the applicable component and to contact the medical community to resolve any medical issues prior to the applicants FA. Lastly, AFPC/DPSOE provided an advisory recommending denial of the applicants request to amend the demotion action taken against the applicant. Since the fitness failure remains valid, a removal of the contested evaluation should be denied and recommend the AFBCMR conclude the same. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disagrees with the advisory’s opinion, recommendation, and conclusion that his demotion was legally sufficient and with the opinion that his demotion action was procedurally correct. He also argues that it is further incorrect that the commanders acted within their authority to demote. He bases this disagreement on the following evidence: a. The commander on G-series orders during the timeframe of his demotion was the Wing Commander. Nonetheless, his demotion was ordered by the Vice Wing Commander. Although the advisory opinion correction points out that AFI 36-2502, paragraph 6.2.1 states that “the group commander, or equivalent level commander, may demote MSgts and below,” it fails to address the fact that the Vice Wing Commander, the person who ordered his demotion, was not authorized to act as a “group commander” at the time he ordered his demotion. At the time of his demotion, the “group commander” or person authorized per the AFI to order his demotion was the Wing Commander on G-series orders. b. In support information above, the applicant has included the G-series order for the Wing and Vice Wing Commanders during the relevant timeframe. As the Board will note, the Vice Wing Commander was only on G-series orders “during the temporary absence of the Wing Commander.” For further verification, he has included documentation of the dates when the Wing Commander was on leave or on temporary duty during the relevant timeframe to confirm that the Vice Wing Commander was not “the group commander” when he ordered his demotion. c. Additionally, in mid-2013, the legal office was visited by their headquarters as part of an inspection. They reviewed his case, to include conducting a legal review that the advisory opinion relied on and HQ USAF/JAI concluded that the legal review and analysis done by the legal office that handled his demotion was incorrect and that his demotion was not legally sufficient. He understands that the drafters/reviewers of the advisory opinions did not have access to the HQ USAF/JAI review of the handling of his case, which is why he is providing it along with his comments. With regards to the removal of his referral EPR with the wrongful demotion, he understands the advisory opinion and agrees that he failed to exhaust administrative avenues. He will pursue the removal of the referral EPR through the Evaluation Report Appeals Board (ERAB). The applicant’s complete rebuttal, with attachments, is at Exhibit F. ADDITIONAL AIR FORCE EVALUATION: AFPC/JA recommends partially granting the requested relief by striking the appeal decision memorandum. They recommend, though, leaving the demotion decision memorandum intact and providing a new appeal of the demotion decision by the appropriate appellate authority. While the Board has the authority to set aside the entire demotion action, they view the underlying basis for the demotion as appropriate, and the demotion action processed properly except for the appeal. They therefore recommend the demotion stay intact, while offering the applicant a new appeal to the correct appellate authority. The applicant does not challenge the underlying basis for his administrative demotion. Administrative demotion is a recommended option for four fitness failures within twenty-four months. They agree with AFPC/DPSOE that the vice wing commander was an appropriate demotion authority in this action. The evidence in the case supports a finding the demotion action was appropriate and that the demotion decision memorandum should stand. As stated above, though, they do not believe the applicant’s appeal was decided by the appropriate appellate authority. They therefore, recommend striking the appeal decision memorandum. The applicant, of course, still entitled to appeal the demotion decision. They recommend that the applicant not be limited to his original appeal, but be allowed to tailor his appeal to the new appellate authority. (1) In accordance with AFI 36-2502, paragraph 6.4.5.4., members are typically given three duty days to appeal. Given the demotion was some time ago, they recommend the applicant be given more time to prepare his appeal; up to 30 calendar days. (2) The servicing legal office should be notified to ensure the appeal is rapidly routed to the correct appellate authority, and that action is swiftly taken to restore the applicant’s rank if that authority grants his appeal. A complete copy of the AFPC/JA evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response to the AFPC/JA Advisory, dated 11 Dec 15, the applicant agrees with the findings that he was not permitted an appeal at the appropriate level; however, he does not agree that the demotion was ordered by a person acting (or appointed) as a commander. AFPC/JA’s findings were based on the interpretation of “equivalent” in paragraph two of their opinion. The facts of the case remain unchanged; the 49th Vice Wing Commander was not serving on “G”-series orders at the time of the demotion action. If allowed to pursue an appellate review at the appropriate level, he feels that based on the medical evidence available now, he would be granted relief and reinstated to the permanent grade of TSgt. He, as well as members of his chain of command are prepared to offer any additional evidence or testimony required for the Board to make a decision. The applicant’s complete rebuttal, with attachments, is at Exhibit I. 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 comments, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR) and adopt their rationale that the applicant’s demotion action was properly processed except for the appeal as was the contested evaluation. Therefore, they conclude the demotion stay intact while offering the applicant a new appeal. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice with regards to the above mentioned appeal request. The Board agrees with the opinion and recommendation of AFPC/JA that while the demotion decision by the applicant’s Vice Wing Commander was properly adjudicated, the appeal should have been conducted at the next higher level commander. In this particular case, the appeal should have been decided on by the 12th Air Force Commander. Therefore, we recommend the applicant's records be corrected as indicated below. 5. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. The decision on his appeal for the demotion action initiated and directed under the provisions of Air Force Instruction 36-2502, Airman Promotion/Demotion Programs, dated 17 June 2010, which demoted him from the permanent grade of Technical Sergeant to the permanent grade of Staff Sergeant, effective 7 August 2012, be declared void and expunged from his records, and; b. That new appellate documentation in accordance with the aforesaid Air Force Instruction be prepared by all relevant parties so as to continue proper processing of the appeal of the demotion action. The following members of the Board considered AFBCMR Docket Number BC-2014-04955 in Executive Session on 2 Feb 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 5 Dec 14, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Memorandum, AFPC/DPSOE, dated 10 Feb 15. Exhibit D. Memorandum, AFPC/DPSID, dated 22 Sep 15. Exhibit E. Letter, SAF/MRBR, dated 15 Oct 15. Exhibit F. Letter, Applicant, dated 9 Nov 15. Exhibit G. Memorandum, AFPC/JA, dated 11 Dec 15. Exhibit H. Letter, AFBCMR, dated 16 Dec 15. Exhibit I. Letter, Applicant, dated 12 Jan 16. 3 4