RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04862

XXXX XXXXXXXXX	COUNSEL: NONE
	(MEMBER)
	HEARING REQUESTED: YES 

APPLICANT’S REQUEST

His rank be restored to Master Sergeant/E-7, with the original date of rank.

The administrative demotion action be removed from his records.

APPLICANT’S CONTENTIONS

The sole basis for the demotion action was based on a Letter of Reprimand (LOR), dated 13 Nov 17, which stemmed from an Equal Opportunity complaint and a domestic complaint.  The domestic complaint was dismissed by a civilian court with no finding of wrongdoing.  A legal review conducted by his Area Defense Counsel determined the demotion action was not legally sufficient and should have been withdrawn.  He contends the LOR was not enough to warrant a demotion action, if so, he would have received non-judicial punishment.  Instead, the demotion action was imposed three months after the LOR and appears to be arbitrary and capricious since it was issued a week after he filed a complaint with the Inspector General.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force technical sergeant.

On 1 Feb 18, the applicant was notified that his commander intended to recommend that he be administratively demoted to the grade of technical sergeant for failure to fulfill his responsibilities.  Specifically, on 13 Nov 17, the applicant received an LOR for referring to a civilian member of his unit in a racially insensitive manner.  The LOR also noted the applicant was arrested for harassment and criminal mischief on 26 Sep 17, after a domestic disturbance between him and his wife.  On 6 Feb 18, the applicant responded.

O 26 Feb 18, the demotion authority found demotion was appropriate and demoted the applicant to the grade of technical sergeant with a new date of rank of 26 Feb 18.  The applicant appealed on 2 Mar 18.  The appellate authority denied the appeal on 13 Mar 18.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION

AFPC/DP2SPP recommends denying the application.  The applicant was selected for promotion to master sergeant during promotion cycle 14E7 with an effective date of rank of 1 Aug 14.  On 24 May 18, he was demoted to the grade of technical sergeant with an effective date of rank of 27 Feb 18.  

The complete advisory opinion is at Exhibit C.

AFPC/JA recommends denying the application.  The applicant contends the 13 Nov 17, LOR was not egregious enough to warrant the initiation of administrative demotion.  The LOR notes the applicant “referred to XXX as Juan Valdez” during a staff meeting on 10 Jul 17 and that he was arrested by the local police department after report of a domestic disturbance between him and his wife.  The charges were later dropped; however, the demotion and appellate authorities were aware of that information, as well as other information related to the domestic relationship with his then-wife, that was provided in the applicant’s response.  The applicant also contends the demotion action was initiated a week after he filed a complaint with the Inspector General.  Even if the applicant had filed a complaint with the IG, there is sufficient evidence to support the demotion action.  

In accordance with AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, 6.1.4, if the commander has sufficient reason to initiate demotion action, use the entire military record in deciding whether demotion is appropriate.  In the applicant’s response to the 13 Nov 17, LOR, he stated “Sir, as I read this LOR and the police report, I am left asking myself, and I know that you must certainly be asking yourself, this is not the first time that I have had to report to your office to address alleged actions that are unbecoming of a Senior Non-Commissioned Officer in the United States Air Force.”  

The applicant bears a difficult burden and must overcome the presumption that administrators discharge their duties correctly, lawfully and in good faith.  In this case, the applicant has failed to present evidence of bad faith.  To the contrary, in this case, there was an error with the original notification with the inclusion of a 3 Jan 17, LOR.  This error was brought to the attention of proper officials and removed from consideration. This confirms the intent of the officials to act in good faith and abide by the appropriate regulations.  Accordingly, the applicant’s request should be denied.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Jun 20 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SPP and AFPC/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While the applicant contends the commander’s demotion recommendation appears to be arbitrary and capricious since it was filed a week after he filed a complaint with the Inspector General, there was no evidence presented to substantiate there was a complaint filed.  Nevertheless, the Board, pursuant to Title 10 U.S.C. 1034, reviewed the complete evidence to determine whether reprisal occurred.  Based on its review, the Board does not conclude the applicant has been the victim of reprisal.  Therefore, in the absence of evidence to the contrary, the Board does not find the applicant has been a victim of reprisal pursuant to Title 10 U.S.C. 1034.  Accordingly, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-04862 in Executive Session on 26 Aug 20:

, Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 28 Oct 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SPP, dated 15 May 20.
Exhibit D:	Advisory opinion, AFPC/JA, dated 30 May 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 3 Jun 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.