RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-01084

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His administrative demotion from E-6 to E-5 be removed from his record and he be returned to the rank of E-6.

APPLICANT CONTENDS THAT:

He was charged with Driving While Intoxicated (DWI) while off base, but never convicted.  The District Attorney dismissed the charges after police misconduct in relation to the case was exposed.

The applicant asked his commander to delay military action until he had an opportunity to fight the charges.  His request was denied, his commander moved forward with punishment immediately, and is now refusing to reverse the demotion.  The commander cited police reports and blood test results to justify the punishment, despite the fact that the evidence could not be examined or disputed in an unbiased manner.  The demotion, without credible evidence of wrongdoing, has impacted his career progression.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

On 25 Nov 97, the applicant initially entered the Regular Air Force.

On 27 Sep 14, at approximately 2349 hours, the Alamogordo Police Department, New Mexico, conducted a traffic stop involving the applicant, and subsequently arrested the applicant for suspicion of Driving While Intoxicated (DWI).

On 28 Sep 14, at approximately 0100 hours, the applicant consented to a blood test.  Toxicology analysis reflected a blood alcohol level of .08.

On 13 Nov 14, the applicant was issued a Letter of Reprimand (LOR), by his squadron commander, for operating a motor vehicle while under the influence of alcohol.  The applicant was placed on the Control Roster and the LOR filed in an Unfavorable Information File.

On 11 Dec 14, the Commander, 49th Aircraft Maintenance Squadron, recommended administrative demotion of the applicant.

On 19 Dec 14, the Commander, 49th Maintenance Group, administratively demoted the applicant to the grade of E-5 (SSgt).

On 13 Jan 15, the applicant appealed the demotion action to the Appellate Authority.

On 28 Jan 15, the Judge Advocate, 49th Wing, reviewed the applicant’s demotion action and found it legally sufficient.

On 30 Jan 15, the Commander, 49th Maintenance Group, denied the applicant’s appeal and forwarded it to the Appellate Authority for final action.

On 3 Feb 15, the Commander, 49th Wing, denied the applicant’s appeal of the demotion action.

On 16 Nov 15, a Notice of Dismissal was filed in the Otero County Magistrate Court showing the applicant’s civil case was dismissed with prejudice “in the interest of justice.”

The applicant is currently serving on active duty with the Regular Air Force.

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 D.

AIR FORCE EVALUATION:

AFPC/JA recommends denial, indicating there is no evidence of error or injustice.

The applicant has not shown the underlying facts resulting in his administrative demotion did not occur as indicated in the record.

The applicant did not provide evidence to refute the initial police report or laboratory evidence showing he was, in fact, operating a motor vehicle with a blood alcohol level above the legal limit in New Mexico on 27 Sep 14.

Although the civilian criminal case was dismissed, the applicant has not sufficiently demonstrated material error or injustice exists.

A complete copy of the AFPC/JA evaluation is at Exhibit C.

AFPC/Enlisted Promotions recommends denial, indicating there is no evidence of error or injustice.

There is no evidence to refute the initial police report or lab analysis showing the applicant was, in fact, operating a motor vehicle with a blood alcohol level above the legal limit in New Mexico on 27 Sep 14.

Based on this information alone, regardless of the civilian case dismissal, the commander was within his authority to demote the applicant for failure to fulfill his noncommissioned officer responsibilities.

A complete copy of the AFPC/Enlisted Promotions evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 6 Mar 17 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 took notice of the applicant’s complete submission in judging the merits of the case.  In the absence of a detailed explanation for dismissal of the civil case, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or 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-2016-01084 in Executive Session on 11 Jul 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01084 was considered:

	Exhibit A.  DD Form 149, dated 11 Mar 16, w/atchs.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Memorandum, AFPC/JA, dated 11 Oct 16.
	Exhibit D.  Memorandum, AFPC/Enlisted Promotions, dated
  10 Nov 16.
	Exhibit E.  Letter, AFBCMR, dated 6 Mar 17, w/atch.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.