RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-00681 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He be reinstated to the grade of Chief Master Sergeant (CMSgt, E-9), with all associated pay, benefits and privileges retroactive to 20 Nov 12. APPLICANT CONTENDS THAT: The demotion authority’s judgment is questionable as evidenced by his later promotion. The punishment he received was disproportionate to the action and there was a conflict of interest by the investigating officers. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, on 10 Dec 86, he entered the Regular Air Force. According to the applicant’s AF Form 3070B, Record of Nonjudicial Punishment Proceedings (MSgt thru CMSgt), on 20 Nov 12, he received an Article 15 for dereliction in the performance of his duties, in violation of Article 92 of the Uniform Code of Military Justice (UCMJ). His punishment consisted of reduction to the grade of Senior Master Sergeant (SMSgt, E-8), with a new date of rank of 20 Nov 12 and a reprimand. On 21 Nov 12, the applicant acknowledged receipt of the Article 15 punishment and, on 30 Nov 12, elected to appeal the punishment and submit written matters on his behalf. On 14 Dec 12, the appellate authority denied the applicant’s appeal and elected to file the Article 15 in his Senior Noncommissioned Officer Selection Record (SNCOSR). On 18 Dec 12, the Article 15 was reviewed and determined to be legally sufficient. On 20 Mar 13, the Secretary of the Air Force determined the applicant served satisfactorily in the grade of CMSgt and directed he be advanced to that grade on the retired list, effective the date of completion of all required service. On 1 May 13, the applicant retired from active duty in the grade of SMSgt, and was credited with 26 years, 4 months, and 21 days of total active service. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C, D, and E. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice. The applicant’s commander had a Command Directed Investigation (CDI) report that substantiated the allegation of dereliction of duty by violating a technical order. The report included statements from all the parties involved and also analyzed the misconduct. Additionally, the commander was in the best position to hear all factual arguments that the applicant wished to make that may not have been included in the CDI. Punishment decisions are within the discretion of the commander imposing punishment and he exercised his discretion. JAJM found no error or injustice that would warrant reversing the commander’s decision on upholding the NJP. The arguments the applicant advances could have been made near the time of the action. Additionally, the applicant has the burden of proof in this case and he has not supported his claims with sufficient evidence that was not available at the time of the NJP. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE makes no recommendation regarding the applicant’s request to remove the NJP and defers to AFLOA/JAJM’s recommendation. However, the DD Form 214 reflects the rank he held at the time of discharge and is therefore correct. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice. The applicant retired in the grade he currently held due to demotion action. On 19 Dec 12, the applicant submitted a Retirement Eligibility check, requesting a retirement effective date of 1 May 13. The eligibility check identified that the applicant had a higher grade held than his current grade. Documentation was requested to process a Satisfactory Service Determination (SSD), to determine whether he would be advanced to the higher grade on the retired list when his time on active duty and time on the retired list totals 30 years. Title 10, United States code (USC) § 8961 states that enlisted members of the regular or reserve forces retiring for other than disability retire in the regular or reserve grade held on the date of retirement unless entitled to a higher grade under some other provision of law. The applicant was not retired for disability. Title 10 USC § 8964 (Atch 2) states that regular enlisted members may, when their active service plus service on the retired list total 30 years, be advanced (on the retired list) and receive retired pay in the highest grade held on active duty satisfactorily, as determined by the SAF or designee. On 20 Mar 13, the Secretary of the Air Force Personnel Council (SAFPC) determined that the applicant served satisfactorily in the higher grade of CMSgt within the meaning of Title 10 USC § 8964 and directed that he be advanced to the grade of CMSgt on the Retired List. The effective date of the applicant’s advancement will be 10 Dec 16. A complete copy of the AFPC/DPSOR evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 6 Nov 15 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: SAF/MRBP recommends denial. The applicant raises the issue of whether a subsequent finding that he served satisfactorily in the grade of CMSgt within the meaning of Title 10 USC § 8964 and is to be advanced to the grade of CMSgt on the Retired List indicates that the Personnel Council, acting under delegated authority of the Secretary of the Air Force, believes the commander’s demotion decision was somehow improper or unwarranted. Such is not the case. Satisfactory service within the meaning of Title 10 USC § 8964 does not indicate or imply that a demotion, for whatever cause, was improper, unjust, or inequitable. The commander and the Personnel Council are answering two separate questions geared toward two separate purposes. The commander decides what punishment is necessary and proper for the maintenance of good order and discipline, and the Council evaluates whether the member’s entire service in the highest grade was satisfactory within the meaning of Title 10 USC § 8964. A finding of satisfactory service within the meaning of Title 10 USC § 8964 by the Personnel Council, in no way discredits a commander’s punishment decision under Article 15, UCMJ. It is not uncommon that members who received a demotion under Article 15, UCMJ are found to have nevertheless served satisfactory in the grade from which they were demoted and advanced on the retired list. Even so, such advancements do not indicate a vote of no confidence in the commander’s demotion decision. A complete copy of the SAF/MRBP evaluation is at Exhibit G. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 3 Mar 16 for review and comment within 30 days (Exhibit H). 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 opinions and recommendations of the Air Force OPRs and adopt the rationale expressed 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-2015-00681 in Executive Session on 19 Apr 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Feb 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 12 May 15. Exhibit D. Memorandum, AFPC/DPSOE, dated 15 Jun 15. Exhibit E. Memorandum, AFPC/DPSOR, dated 18 Sep 15. Exhibit F. Letter, AFBCMR, dated 6 Nov 15. Exhibit G. Memorandum, SAF/MRBP, dated 1 Mar 16. Exhibit H. Letter, AFBCMR, dated 3 Mar 16.