RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02649 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: His promotion to the grade of technical sergeant be reinstated. ________________________________________________________________ THE APPLICANT CONTENDS THAT: Since the Evaluation Reports Appeals Board (ERAB) removed his referral report (TSgt) his grade of technical sergeant should be reinstated. He has exhausted all unit level resources to no avail. He filed an Article 138 Command complaint and requested supplemental promotion consideration through his chain of command; however, his request for promotion was denied. In support of his appeal, the applicant provides a copy of his Article 138 complaint; a copy of his ERAB appeal, and other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant received an Article 15 for causing unlawful bodily harm to a fellow member and for being drunk and disorderly. His punishment consisted of a suspended reduction in grade to senior airman, suspended through 31 Jan 09; forfeiture of $150.00 pay per month for two months, and 10 days of extra duty. The applicant received a referral report for the period 9 May 08 through 8 May 09. On 30 Mar 10, the applicant petitioned the ERAB to have the referral report removed and, on 27 Apr 10 the ERAB granted his appeal. The applicant was considered and selected for promotion to the grade of TSgt during cycle 10E6 with a pin-on date of 1 Aug 10. The applicant’s EPR profile of the last ten reports follows: PERIOD ENDING OVERALL RATING 15 Aug 00 5 15 Aug 01 5 15 Aug 02 5 15 Aug 03 5 15 Aug 04 5 15 Aug 05 5 15 Aug 06 5 15 Aug 07 5 08 May 08 5 01 Dec 09 5 ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSOE recommends denial, stating, in part that while the referral report was removed, the applicant was not eligible for promotion testing/consideration based on the Article 15 suspended reduction. The applicant was considered and tentatively selected for promotion to the grade of TSgt during cycle 09E6. He received Promotion Sequence Number (PSN) 1421.0, which would have incremented on 1 Oct 09; however, his line number was removed in accordance with (IAW) the governing Air Force instruction. Upon further review, they noted the applicant was ineligible for promotion consideration to TSgt for cycle 09E6 and should have not been allowed to test. This was because the promotion eligibility status (PES) code for the Article 15 was never updated in the system and he was erroneously considered for promotion to TSgt during cycle 09E6. The complete AFPC/DPSOE evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant notes that IAW the governing instruction, airmen are ineligible for promotion, if on or after the promotion eligibility cutoff date they are undergoing a suspended reduction under Article 15, Uniform Code of Military Justice (UCMJ). His Article 15 suspended reduction was removed after the promotion cutoff date (PECD), but prior to the original PAS (sic) code. Subsequently, the Military Personnel Flight (MPF) validated his testing eligibility and allowed him to test. He was led to believe that he was able to progress in his career with no further repercussions from the Article 15. He was allowed to test, received a line number, had a promotion ceremony and allowed to sew on his rank, on 1 Oct 09, and wore the stripes for over two months. He was advised that he had to remove his stripes and was only told it was because of the referral EPR and a paperwork/system update error. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice. We took note of the applicant’s contention that he was led to believe that only the referral EPR rendered him ineligible for promotion. However, the evidence of record clearly shows that he received punishment under Article 15, UCMJ which rendered him ineligible for promotion. While regrettable that the error was made allowing him to test and to assume the grade of technical sergeant, he has not presented sufficient evidence to persuade us that his promotion should be reinstated. His temporary promotion to technical sergeant was erroneous and we do not believe it would be in the interest of justice to allow him to retain a promotion he has not properly earned. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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-2010-02649 in Executive Session on 28 April 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Jul 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOE, dated 25 Aug 10. Exhibit D. Letter, SAF/MRBR, dated 8 Oct 10. Exhibit E. Letter, Applicant, dated 26 Oct 10, w/atchs. Panel Chair