RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2022-00501

XXXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

Correct his official military record to restore him to the rank of sergeant (E-4).

APPLICANT’S CONTENTIONS

He entered the Air Force as an airman first class (E-3) on 2 Apr 82, and was promoted to senior airman (E-4).  He then completed the noncommissioned officer (NCO) academy with honors and was promoted to sergeant before he was unfairly demoted following an on-the-job accident and ongoing health problems.  In 1987, he was injured on duty while serving at a military treatment facility, which caused him excessive pain.  Even though he was injured and in pain, a military nurse directing the Neonatal Intensive Care Unit and a civilian nurse combined efforts to claim he was not properly doing his job. He was scheduled for spinal surgery, but these nurses told the surgeons not to do the surgery, and instead, they gave him a rigid torso brace.  In addition, they made him sign an Article 15 without seeking legal assistance and used this mistake to demote him from sergeant to airman first class.  They threatened to submit the Article 15 unless he accepted a disability separation from the Air Force.  Due to his inexperience, he accepted this option and on 24 Nov 87, he received a disability discharge with severance pay.  Prior to his separation, he went to the base legal office and they told him he should have gone to them earlier.  In retrospect, he should not have accepted being demoted before accepting their discharge demand.  He could have been assigned to desk duty, but the nurse supervisor had other ideas about keeping him in the force.  He had a Bachelor of Science degree, and his goal was to become an officer.  He applied to be a pilot and met all the requirements; however, his naturalization documents came a few months too late to meet the 27 years age cutoff.  Perhaps not being able to become an officer was the reason he accepted the disability discharge.  He was not treated fairly because of his on-duty accident; therefore, his lawful rank must be restored.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force airman first class.

On 1 Aug 85, according to AF Form 1599, Certificate of Appointment, the applicant was appointed as an NCO.

On 20 Apr 87, according to documentation provided by the applicant and AFPC/DP2 advisory, dated 28 Oct 22, the applicant was reduced in grade to E-3 as a result of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice.

On 26 May 87, according to AF Form 418, Selective Reenlistment/Noncommissioned Officer Status Consideration, the applicant’s commander concurred with his supervisor’s recommendation that the applicant’s reenlistment be denied.  The reason for the recommendation was the applicant’s numerous counselings for substandard duty performance has not proven successful.  In addition, he failed to assist the professional staff and co-workers, was not attentive to patients’ needs, and did not uphold the standards and principles in accordance with Air Force Regulation 39-6, Enlisted Force Structure. 

On 23 Jun 87, the applicant’s rater informed him he was referring  his Airman Performance Report because it contained comments about his duty performance, bearing, judgment, leadership, and supervision, that made the report a referral.

On 10 Jul 87, the applicant responded to his indorser regarding the referral report and cited the times his rater failed to respond to is medical needs and retained him in a job in spite of his physical limitations. 

On 23 Jul 87, according to AF Form 909, Airman Performance Report (Airman Basic thru Senior Airman), the applicant’s indorser indicated he considered his referral comments and after a careful study of his entire record, he indicated he was concerned with the applicant’s medical problem and it may have an impact on his actual duty performance; however, he did not feel the two were directly related.  He determined retention and future military service was not recommended.

On 20 Aug 87, according to AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, the applicant was found to be unfit because of physical disability for Spondylolisthosis, Grade I L5-S1, with chronic incapacitating low back pain and was recommended for discharge with severance pay with a compensable rating of 10 percent.

On 30 Oct 87,  according to a Secretary of the Air Force Personnel Council memorandum, the Secretary of the Air Force determined the applicant was physically unfit for continued military service and would be entitled to disability severance pay in the grade of E-4.

On 24 Nov 87, according to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant was honorable discharged, in the grade of E-3, with a 20 Apr 87 date of rank.  His Narrative Reason for Separation is “Disability Entitled to Severance Pay” and he was credited with 5 years, 7 months, 23 days active service.

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

AIR FORCE EVALUATION

AFPC/DP2 recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  In 1976, the rank for E-4 was classified as senior airman, then sergeant.  The sergeant rank reflected a blue circle with a white star and three white chevron stripes along its sides.  The senior airman rank held no star.  The applicant was honorably discharged in the rank of airman first class.  He held the rank of sergeant prior to being demoted.  His demotion as a result of Article 15 action was effective 20 Apr 87.  

On 26 Jun 87, the applicant’s Narrative Summary to the Air Force Formal Physical Evaluation Board (FPEB) described significant disability secondary to low back pain.  The applicant met the FPEB on 20 Aug 87, and FPEB members questioned him about his demotion.  The applicant stated he was demoted due to administrative action, and he was unable to perform due to physical limitations, which did not allow him to complete his job tasks.  On 24 Nov 87, the applicant was separated with disability entitlement and severance pay in the amount of $9,341.97.  According to AFR 39-30, Administrative Demotion of Airmen, dated 30 Oct 86, paragraph 3c,  the applicant was demoted for failure to develop or maintain standards and failure to fulfill responsibilities of an NCO.  The applicant failed to provide the demotion package or information other than what was stated on his application and what was stated at the FPEB.  

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 4 Nov 22, for comment (Exhibit D) but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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 applicant claims he was unfairly demoted following an on-the-job accident and ongoing health problems.  He also claims he was unaware he could seek counsel when he was offered NJP under Article 15, Uniform Code of Military Justice.  However, due to the limited records available regarding his NJP and based upon the presumption of regularity in the conduct of governmental affairs, the Board must assume the applicant's NJP process was proper and he was offered the assistance of counsel, in compliance with appropriate directives. In addition, the Board find no evidence of error or injustice regarding the rank on his DD Form 214.  The Secretary of the Air Force determined he applicant would be entitled to disability severance pay in the grade of E-4.  However,  the applicant was demoted to the grade of E-3 prior to his discharge from active duty; therefore, the grade on his DD Form 214 is correct.  Accordingly, without evidence to the contrary, the Board concurs with the rationale and recommendation of AFPC/DP2 and finds a preponderance of the evidence does not substantiate the applicant’s contentions. The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and 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 application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2022-00501 in Executive Session on 19 Jan 23:

, 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 29 Jan 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2, w/atch, dated 28 Oct 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 4 Nov 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.