RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03474

XXXXXXXXX	COUNSEL: XXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His record be corrected to reflect that he was promoted to technical sergeant (E-6) with a date of rank (DOR) and effective date of 1 Aug 20.  

APPLICANT’S CONTENTIONS

On 17 Aug 20, the applicant was administratively demoted from staff sergeant (E-5) to senior airman (E-4); however, he appealed the decision, his appeal was granted on 3 Sep 20, and he was reinstated to staff sergeant (E-5). While the administrative demotion actions were being processed, he was selected for promotion to technical sergeant (E-6) with a projected DOR of 1 Aug 20, but on 20 Nov 20, he was presented with a “Notification of Promotion Selection Removal” memorandum by his Squadron Director of Operations (DO).  The memorandum claims that his DO made the verbal notification of withholding his promotion, but does not state the date on which such notification occurred.  As such, the applicant claims, that he never received verbal notification and therefore refused to sign the letter.  In addition, on 22 Dec 20 after he refused to sign, a master sergeant from his unit signed the memorandum in his place.      

Pursuant to AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, Chapter 4, Paragraph 4.2, if a commander intends to nonrecommend, defer or withhold a promotion, he must notify the Airman of the adverse action in writing or verbally before the promotion effective date.  If the notification is made verbally, the verbal notification must be confirmed in writing within 5 duty days.  

By failing to properly notify him of the withholding, he was denied his right to due process under the 5th Amendment to the United States constitution [sic]. The withholding of his promotion should be reversed and he should immediately be promoted to the rank of technical sergeant 
(E-6).

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force staff sergeant (E-5) with a current date of rank of 1 Feb 11.   

On 23 Jul 20, according to Administrative Demotion of Airmen Memorandum, the applicant’s DO recommended that the applicant be administratively demoted to senior airman (E-4) in accordance with AFI 36-2502, paragraph 6.3.4.  Specifically, on 14 March 20, he was arrested for being drunk in public, resisting arrest and simple assault, for which he received a Letter of Reprimand (LOR) and Unfavorable Information File (UIF).  Additionally on or about 16 May 20, he was arrested for driving under the influence of alcohol and received a LOR. 
On 1 Aug 20, according to the Military Personnel Database System (MilPDS) Promotion History Report, the applicant was promoted to the grade of technical sergeant (E6).  

On 7 Aug 20, the applicant responded to the demotion action, did not concur with the demotion, submitted written materials on his behalf and requested a personal hearing with the DO.  

On 9 Aug 20, after reviewing all submitted written and/or oral matters, the applicant’s DO found his demotion to the grade of senior airman (E-4) appropriate and forwarded all submitted matters to the demotion authority.

On 17 Aug 20, the applicant’s group commander (the demotion authority), found the applicant’s demotion appropriate and demoted the applicant to the grade of senior airman (E-4) with a date of rank of 17 Aug 20 and an effective date of rank of 18 Aug 20.    

On 21 Aug 20, the applicant submitted an appeal to the demotion authority.  In a statement from the applicant’s counsel, the counsel states, that the applicant should not be reduced in rank to senior airman (E-4), because of the second and third order effects such a reduction would have on his career and retirement eligibility and that the weight of these repercussions far exceeds the level of punishment appropriate.  His counsel goes onto explain that the demotion could cause the applicant to have to separate under High Year of Tenure.   

On 28 Aug 20, the applicant’s group commander, reviewed the appeal and forwarded the case to the wing commander (the appellate authority).

On 3 Sep 20, the applicant’s wing commander granted the applicants appeal, terminated the demotion proceeding and restored the applicant’s rank to staff sergeant (E-5) with his original date of rank.   

On 19 Nov 20, according to a Notification of Promotion Selection Removal, provided by the applicant, he was selected for promotion to the grade of technical sergeant (E-6) during the 20E6 cycle, received a line number of #246 and a projected promotion of 1 Aug 20. However, the purpose of the letter was to inform the applicant in writing that the applicant would not be allowed to promote and assume the rank of technical sergeant (E-6).  The letter was digitally signed by the applicant’s DO, but in the member's acknowledgment section, it was signed not by the applicant, but by a master sergeant from his unit.    

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

APPLICABLE AUTHORITY

AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, date 25 Oct 19:

4.2. Nonrecommending, Deferring, and Withholding Promotions. The action may be initiated and approved by the unit commander or director of civilian led units for Airman in the grades AB - TSgt. The nonrecommendation, deferral, or withhold can be initiated by the unit commander, but is approved by the promotion authority for Airmen in grades MSgt and SMSgt (see paragraph 1.5.).

4.2.1.1. Inform Airmen of adverse actions in writing or verbally before promotion effective date (confirm verbal notification in writing within 5 duty days). The notification memorandum must include reasons, dates, occurrences, and duration of the action. If the Airman is notified verbally prior to effective date, and written notification is followed up after effective date of promotion, include a statement confirming the Airman was verbally notified not to assume the higher grade prior to the effective date of promotion. 

4.2.1.2. Obtain the Airmen’s written acknowledgment.

4.2.1.3. Forward the written notification to the MPS to send for file in the Airman’s ARMS record and updates MilPDS.

4.2.2.1. Separate written nonrecommendations are not required for Airmen otherwise ineligible according to Table 1.1. (except for Rule 8, where the ineligibility condition is specifically “nonrecommendation for promotion”).

Table 1.1. Determining Ineligibility For Promotion.  If on or after the promotion eligibility cutoff date, and the Airman is serving in grade SrA through SSgt then the Airman is ineligible for promotion during a particular cycle when he or she: 

Rule 8 is not recommended for promotion consideration, or the promotion authority removes the individual from a select list. PES code N. (See paragraph 4.2.)

Rule 16:  is pending administrative demotion action under Chapter 5. PES code H (see note 2). 

6.3. Reasons to Demote.

6.3.4. Failure to fulfill Responsibilities. Airmen may be demoted for failing to fulfill Airman, noncommissioned officer (NCO), or senior noncommissioned officer (SNCO) responsibilities under AFI 36-2618, The Enlisted Force Structure, Chapters 3 through 5.

AIR FORCE EVALUATION

AFPC/DP2SSP, recommends granting the application.  On 23 Jul 20, the applicant’s unit commander initiated steps to administratively demote the applicant from staff sergeant (E-5) to senior airman (E-4) after the applicant received two LORs and a UIF.  During the demotion proceedings, HQ AFPC Enlisted Promotions announced the delay of the 2020 E-6 cycle promotion release, and all selectees with line numbers to be incremented in the month of Aug 2020 were to be retroactively corrected to reflect 1 Aug 20.  The applicant was one of the individuals selected for promotion and fell under this guidance.  On 24 Aug 20, the technical sergeant (E-6) promotion selects list was posted and the applicant was selected for promotion to technical sergeant with a date of rank and effective date of 1 Aug 20.  

On 3 Sep 20 the applicant’s wing commander granted the applicant’s appeal request to overturn the applicant’s demotion to senior airman (E-4).  However, the applicant’s unit commander wished to still non-recommend the applicant for the promotion to technical sergeant (E-6).  On 19 Nov 20, the applicant’s unit commander generated a notification memo for the removal of the applicant’s promotion to technical sergeant (E-6), but the memo did not have the applicant’s signature of acknowledgement nor a statement of his refusal to sign, but instead another individual signed in his place. 

Per AFI 36-2502 (Published: 25 Oct 2019), Para. 4.2.1, unit Commanders are to "inform Airmen of adverse actions in writing or verbally before promotion effective date (confirm verbal notification in writing within 5 duty days)." As such, the applicant was not notified of non-recommendation for promotion to technical sergeant (E-6) prior to the effective date of promotion and due to processing errors that were made, the notification letter is not valid.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 21 Jun 22 for comment (Exhibit D), 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 the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSP and finds a preponderance of the evidence substantiates the applicant’s contentions.  The Board notes that the applicant was promoted to technical sergeant (E-6) retroactively on 1 Aug 2020.  This was prior to the applicant’s initial demotion from staff sergeant (E-5) to senior airman (E-4), which the appellate authority revoked by granting his appeal on 3 Sep 20.  Furthermore, when the applicant’s Director of Operations tried to later remove the applicant from the technical sergeant (E-6) promotion list, he failed to follow the proper notification procedures as outlined in AFI 36-2502.  In this regard, the Board finds that the applicant was not properly notified of a 
non-recommendation for promotion to technical sergeant (E-6) prior to the effective date of promotion and due to lack of documentation in the applicant’s official military human resource records and processing errors with the action, the notification letter is not valid.  While the Board does not condone the conduct that may have led up to the reason the Director of Operations wanted to remove the applicant from the promotion list; it appears he did not properly document the adverse actions and provide the applicant due process.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

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 pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he be retroactively promoted to the rank of technical sergeant (E-6) with a date of rank and effective date of 1 August 2020.  

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-2021-03474 in Executive Session on 9 Aug 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 15 Oct 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSP, dated 21 Mar 22.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 21 Jun 22.

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.