RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-00583

XXXXXXXXXXXX	COUNSEL:  XXXXXXXXXX
	
	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

Correct his military record to:

1.  Remove administrative demotion action to staff sergeant (E-5).
2.  Remove administrative discharge.
3.  Restore his rank to technical sergeant (E-6).
4.  Make whole from all collateral consequences, to include back pay.
5.  Reinstate to active duty status.

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contended the applicant was involuntarily discharged, on his fifteenth anniversary of his enlistment in the Air Force, due to reaching high year of tenure for a staff sergeant (E-5).  The applicant had reached the grade of technical sergeant (E-6), which would have allowed him to continue serving; however, his commander administratively demoted him due to an arrest for Driving Under the Influence (DUI), that was subsequently dismissed by the civilian authorities due to lack of evidence.

On 22 Dec 17, the applicant was placed under arrest for suspicion of DUI.  The charge was pending in the State Court of XXXX and was prosecuted by the Office of Solicitor General for XXXX.  Before any action was taken in his civilian case, the applicant’s commander issued a Letter of Reprimand (LOR), due to the arrest, on 23 Jan 18.  Again, prior to any action being taken by XXXX State Court, the applicant’s commander initiated an Administrative Demotion Action, due to the arrest, on 7 Feb 18.  The applicant submitted a response on 14 Feb 18, and the demotion recommendation was approved, with the applicant being demoted to E-5 on 8 Mar 18.  The applicant then appealed to the appellate authority on 15 Mar 18.  By this time, the Solicitor General’s Office had dismissed the charge of DUI pending against the applicant.  The prosecutor provided an affidavit in which she stated she reviewed the case and “the evidence simply was not there to successfully obtain a conviction” and she “did not even feel [the applicant] was more likely than not to be found guilty.”  She reached this conclusion considering “his low blood alcohol content, the timeline of events, and the standard deviation on the lab report.”  Additionally, the prosecutor noted the officer “did not observe any actual traffic offense that would indicate that he was less safe to drive.”

Despite the dismissed charge, the applicant’s appeal was denied in 2 Apr 18 and the Administrative Demotion of Airmen Memorandum was completed on 9 Apr 18.  The applicant submitted an Informal Complaint pursuant to Article 138, Uniform Code of Military Justice (UCMJ) seeking relief because his demotion constituted an abuse of command discretion.  His chain of command waited until he was discharged before denying relief.  The applicant then submitted a Formal Complaint on 16 Jun 18.  His request for relief was denied on 24 Jul 18 because he was no longer on active duty.

The plain language of the demotion recommendation indicates the sole reason for demotion was the arrest.  An individual can be wrongfully accused and an arrest is not proof of wrongdoing.  The government must show the member failed to fulfill his responsibilities as a noncommissioned officer; however, in this instance, there was no such evidence.  The applicant was demoted despite any meaningful investigation being conducted.  At no point did anyone speak to the arresting officer, interview any witnesses, speak with the prosecutor, view the video of the arrest, or review any documents pertaining to the calibration of the intoxilyzer utilized.  The applicant’s chain of command failed to exercise due diligence with regard to ascertaining the facts regarding this matter.  The demotion of an Air Force member for an offense that had been dismissed by civilian authorities, without any independent investigation, is both arbitrary and unfair.

Additionally, the applicant’s chain of command failed to follow the requirements of Air Force Instruction (AFI) 36-2502, Enlisted Airman Promotion/Demotion Programs.  Pursuant to paragraph 6.1., a commander must not “use administrative demotions when it is more appropriate to take actions specified by the UCMJ.”  On 23 Jan 18, the applicant was issued an LOR alleging he violated Article 11 (sic); thus, disciplinary action had already taken place and demotion was not appropriate.

Pursuant to paragraph 6.3., the reasons for demotion do not mention misconduct as a basis for administrative demotion because misconduct is addressed pursuant to the UCMJ.  Further, pursuant to paragraph 6.1.4., a commander is required to consider “the [member’s] entire military record in deciding whether demotion is appropriate.”  The applicant had an exemplary record and the sole reason for the demotion was the DUI arrest, which was ultimately dismissed.  Finally, pursuant to paragraph 6.1.5., a member should be given “the opportunity to overcome their deficiencies before demotion action is initiated” and “commanders should maintain supporting documentation of all rehabilitation and probationary actions.”  The applicant was not given the opportunity to overcome any deficiency before the demotion was approved.

Additionally, the applicant was unfairly punished because of his status as a Security Forces member.  He was told demotion action was taken because he was “a cop and we are held to a higher standard.”  His demotion to E-5 caused the applicant to reach high year of tenure, and he was consequently discharged from the Air Force.  He had already received an LOR; to end his Air Force career on top of that was clearly an abuse of discretion.  Finally, high year of tenure for E-5 was 15 years at the time of the applicant’s demotion.  In Oct 18, the Air Force extended high year of tenure from 15 years to 20 years for E-5.  Had this policy change occurred sooner, the applicant would have been able to continue serving until he reached 20 years of service and was eligible to retire.

In conclusion, the applicant was not guilty of DUI on 22 Dec 17.  His case was dismissed due to lack of evidence; however, his command decided he was guilty of the offense, while affording him no investigation or due process, and demoted him to E-5 for the arrest alone, and the applicant was discharged.  Not only has this cast a cloud over his otherwise impeccable record, ended his service, and took away his employment, it will cost him an incalculable amount of lost retirement income.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force staff sergeant (E-5).

On 22 Dec 17, according to XXXX Sheriff’s Office Incident Report, the applicant was arrested for Driving Under the Influence.

On 23 Jan 18, the applicant was issued a Letter of Reprimand for, on 22 Dec 17, driving under the influence, in violation of Article 111, Uniform Code of Military Justice.

On 26 Jan 18, the applicant submitted a response to the LOR.

On 7 Feb 18, the XXXX CC initiated administrative demotion action against the applicant.

On 7 Feb 18, according to AF Form 1058, Unfavorable Information File (UIF) Action, a UIF was established and the applicant’s LOR, dated 23 Jan 18, filed within.

On 14 Feb 18, the applicant provided a response to the demotion action.

On 23 Feb 18, XXXX WG/JA found the administrative demotion action legally sufficient.

On 8 Mar 18, under Special Order XXXX, dated 28 Mar 18, the applicant was demoted to the permanent grade of staff sergeant (E-5), effective and with date of rank of 8 Mar 18. 

On 15 Mar 18, the applicant appealed his demotion to E-5.

On 2 Apr 18, XXXX WG/CC denied the applicant’s appeal.

On 3 May 18, according to documentation provided by the applicant, the applicant submitted an Informal Complaint pursuant to Article 138, UCMJ.

On 27 May 18, the applicant was furnished an honorable discharge, with Narrative Reason for Separation:  Reduction in Force, Separation Code LCC (Reduction in Force), Reentry Code 4D (Ineligible), and credited with 15 years, 1 day active service.

On 16 Jun 18, according to documentation provided by the applicant, the applicant submitted a Formal Complaint pursuant to Article 138, UCMJ.

On 24 Jul 18, according to documentation provided by the applicant, due to the applicant’s separated status, XXXX AF/CC referred the applicant’s request for relief to the Air Force Board for Correction of Military Records.

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/DP2SSM recommends denying the applicant’s request to remove his LOR from his record.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  The commander has the authority to issue an LOR and there is no requirement to prove any allegation beyond a reasonable doubt.

In accordance with AFI 36-2907, Adverse Administrative Actions, dated 26 Nov 14:

-	Paragraph 4.1. Who Can Use Counseling, Admonitions, and Reprimands.  “Commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands.” 
-	Paragraph 4.1.3. Standard of Proof.  “While no specific standard of proof applies to administrative action proceedings, commanders should utilize the “preponderance of the evidence” standard when evaluating the evidence and every element of the offenses committed.  A preponderance of the evidence means simply the greater weight of credible evidence.”

The complete advisory opinion is at Exhibit C.

AFPC/JA recommends denying the application.  As the applicant showed a lack of leadership, maturity, and regard for safety by choosing to drive while over the legal limit for alcohol consumption, the demotion action in his case was not a result of any error or injustice.  

On 22 Dec 17, the applicant was arrested for driving under the influence, a violation of Article 111 of the UCMJ.  The applicant admitted to consuming alcohol prior to driving and consented to the breath sample.  At the time of the arrest, the applicant’s Breath Alcohol Content (BRAC) measured 0.099 at 0353 hours and 0.100 at 0358 hours.  The legal limit for alcohol (for persons over 21 years of age) in the state of XXXX is 0.08.  The applicant provided evidence that he attended a DUI class from 1 Mar 18 to 11 Mar 18.  Additionally, he provided evidence that the DUI was dismissed in favor of a reckless driving charge.

AFI 36-2502, paragraph 6.3.4., states “Airmen may be demoted for failing to fulfill Airman, noncommissioned officer, or SNCO responsibilities under Air Force Handbook (AFH) 36-2618, The Enlisted Force Structure.  Moreover, AFH 36-2618 (formerly AFI 36-2618) paragraphs 4.4.1-4.4.3 state that junior enlisted Airmen should “demonstrate a foundational understanding of what it means to be an Airman in the profession of arms”, “place the requirements of official duties and responsibilities ahead of personal desires”, and “detect and correct conduct and behavior that may place themselves or others at risk.”

The applicant rested his request for relief on the fact that his formal charge of DUI was ultimately dismissed.  However, the applicant failed to account for the fact that the demotion was not based on a formal charge of DUI.  Instead, it was based on his decision to drive, after consuming alcohol, with a BRAC over .08.  This behavior showed a lack of leadership and maturity expected of a non-commissioned officer.  Additionally, while the formal DUI charge was dropped, it was done so in favor of a reckless driving charge based on the same underlying conduct.

The applicant was demoted from E-6 to E-5, effective 8 Mar 18.  The applicant entered active duty on 27 May 03.  As a result, he had served approximately 15 years at time of his demotion.  In 2018, the High Year Tenure (HYT) policy required that members who were demoted to E-5, and failed to re-promote to E-6 by their 15th year of active service, would be separated on their HYT date.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 2 Dec 21 for comment (Exhibit E), and the applicant replied on 7 Feb 22.  In his response, counsel, on behalf of the applicant, reiterated the contentions presented in the initial application to the Board.  He further contended the advisory opinions did not address all of the issues.

He contended the AFPC/DP2SSM advisory only provided information regarding when an LOR can be given to a member and what standard of proof is required; the administrative demotion is not addressed.  The AFPC/JA advisory only notes airmen may be demoted for failing to fulfill responsibilities under the Air Force Handbook, and incorrectly notes the applicant (and his counsel) rest their request for relief on the fact that the applicant’s formal charge of DUI was ultimately dismissed.  While the applicant certainly asserts the fact that the DUI was dismissed justifies setting aside the demotion, and ultimate discharge, that was only one of many arguments.  The remaining arguments were simply not addressed and were essentially ignored.

The errors not addressed include failure to exercise due diligence.  The applicant was demoted despite any kind of meaningful investigation being conducted.  Specifically, at no point did anyone speak to the arresting officer, interview any witnesses, speak with the prosecutor who oversaw the case in civilian court, view a video of the arrest, review any documents that pertain to the calibration of the intoxilyzer that was utilized, or interview any law enforcement officer regarding the calibration of the intoxilyzer utilized as part of the police officer’s investigation.  Further, the applicant’s leadership refused to speak with his civilian attorney so these concerns could be discussed.

The demotion violated AFI 36-2502, paragraph 6.1., “…a commander may not use administrative demotions when it is more appropriate to take actions specified by the UCMJ.”  The applicant was issued an LOR, thus disciplinary action had already been taken against him and demotion was not appropriate.  Paragraph 6.1.4. required a commander consider “the member’s entire military record in deciding whether demotion is appropriate.”  In this instance, the applicant had an exemplary record and the sole reason for the demotion was the arrest for DUI, which was dismissed.  Paragraph 6.1.5. states a member should be given “the opportunity to overcome their deficiencies before demotion action is initiated” and “commander should maintain supporting documentation of all rehabilitation and probationary actions.”  The applicant was not given the opportunity to overcome any deficiency before the demotion was approved.  Finally, pursuant to paragraph 6.3., the reasons for demotion enumerated in the AFI pertain to not performing duty properly or meeting training or fitness standards.  The AFI does not mention misconduct as a basis for administrative demotion because misconduct is addressed pursuant to the UCMJ.

Another error was disparate treatment.  The applicant was unfairly punished because of his status as a Security Forces member.  He was told he was “a cop and we are held to a higher standard.”  The Air Force Court of Appeals has repeatedly held that an accused’s duty position cannot be considered as a matter of aggravation to increase a sentence.  United States v. Bobby, 61 M.J. 750 (A.F. Ct. Crim. App. 2005)

Ending the applicant’s career was an abuse of discretion.  After his demotion, the applicant reached HYT and was consequently discharged.  The consequence simply does not appear reasonable as he deployed countless times for the War on Terror and received numerous awards and decorations over his 15-year career.  Especially problematic was he had already received an LOR for the arrest.  Further, the subsequent changes to the HYT policy occurred only five months after his separation.  In May 18, the HYT for staff sergeants was 15 years of service; however, in Oct 18, HYT was extended from 15 to 20 years, effective 1 Feb 19.

In conclusion, the advisory opinions do not address all of the issues, particularly violation of the various provisions for AFI 36-2502.  It is clear the AFI was not complied with and the applicant was wrongly demoted.  As a result, the applicant was no longer allowed to continue serving despite an exemplary record.  

The applicant’s complete response is at Exhibit F.

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, to include the applicant’s rebuttal, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and APFC/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant’s counsel asserts the dismissal of the applicant’s DUI justifies setting aside his demotion action and discharge; however, we note the Solicitor General’s Office made an offer to dismiss the DUI if the applicant pled to a lesser traffic violation which would enable him to expedite his matter before the Air Force.  With regard to further assertions that the applicant was treated with disparagement and punished unfairly due to his status as a Security Forces member, the Board finds no evidence of any improprieties or abuse in the commander’s discretionary punishment.  Moreover, the applicant admitted to consuming alcohol and consented to a breath sample, which resulted in levels above the legal limit for alcohol in the state of XXXX.  The punishment imposed was within the permissible range for the offense committed and within the commander’s authority to issue an LOR and recommend administrative demotion which ultimately led to his separation.  Therefore, 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-2021-00583 in Executive Session on 11 Jan 22 and 1 Mar 22:

, Panel 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 12 Mar 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 24 Jul 21.
Exhibit D:	Advisory Opinion, AFPC/JA, dated 1 Dec 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Counsel, dated 2 Dec 21.
Exhibit F:	Applicant’s Response, dated 7 Feb 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.