RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01092 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His rank of staff sergeant be reinstated with his original date of rank of 1 Mar 07. _________________________________________________________________ APPLICANT CONTENDS THAT: He believes his records are in error and unjust due to the lack of compliance with Air Force instructions by the office of primary responsibility and past and present unit staff. This failure of compliance was a severe inequity to him. He was unaware of the impact that his referral enlisted performance report (EPR) would have on his promotion eligibility. He was allowed to test for promotion and was selected; however, his selection was voided as a result of his EPR. In support of his request, the applicant provides copies of records extracted from his master personnel records, an Achievement Medal Citation, a clemency request, a request for set aside actions with a response, extracts of AFI 36-2110, Assignments, and letters of support. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Regular Air Force on 4 Jun 02. On 20 Jan 09, the applicant’s commander offered him nonjudicial punishment in the form of an Article 15, Record of Nonjudicial Punishment. The applicant was charged with failure to obey an order establishing restricted hours for “Bar Row” in Fussa City, Japan, in violation of Article 19, Uniform Code of Military Justice (UCMJ). On 29 Jan 09, the commander determined the applicant committed the alleged offense and imposed punishment consisting of a reduction in grade from staff sergeant to senior airman, restriction to the base for 30 days, 30 days extra duty, and a reprimand. On 3 Feb 09, the applicant submitted an appeal; however, it was denied. On 9 Apr 09, the applicant submitted a remission request for his reduction to senior airman; however, the request was denied. The applicant was considered and tentatively selected for promotion to staff sergeant during the 09E5 promotion cycle and received the promotion sequence number 15155.0, which incremented on 1 Aug 10. However, the applicant’s referral EPR, which closed-out 1 Mar 09, automatically cancelled his promotion. On 2 Mar 09, the applicant was advised in writing that the referral EPR may affect his promotion eligibility for personnel actions such as promotion. A resume of the applicant’s EPRs follows: CLOSEOUT DATE OVERALL RATING 15 Jan 04 4 15 Jan 05 5 15 Jan 06 5 15 Jan 07 5 15 Jan 08 5 *30 Sep 09 4 *Contested report. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial and states that the applicant has not provided evidence of a clear error or injustice. JAJM states that the applicant does not contest either the basis for his nonjudicial punishment or the commander’s selection of punishment. Rather, he focuses on circumstances subsequent to the imposition of his nonjudicial punishment. None of the circumstances discussed by the applicant establish error or injustice in the Article 15 action or otherwise warrant setting aside the reduction in rank imposed by the applicant’s commander. Further, he was afforded and took advantage of the opportunity to present matters to his commander and to appeal his nonjudicial punishment to the next higher commander. The applicant alleges, and the record reveals, no error or injustice in the processing of his Article 15 action. The complete AFLOA/JAJM evaluation is at Exhibit C. HQ AFPC/DPSOE defers to AFLOA/JAJM. They state that should the Board remove the applicant’s Article 15, the referral report would need to be corrected to reflect the applicant’s rank as staff sergeant rather than senior airman. His original date of rank to staff sergeant was 1 Mar 07. This date of rank alone makes him eligible for promotion consideration to technical sergeant beginning with cycle 09E6; however, since the applicant is not requesting the referral EPR be removed; it would render him ineligible for promotion consideration for cycle 09E6. The applicant would, however, be eligible for promotion consideration for cycle 10E6 since his EPR closing 30 Sep 09 was not a referral report. The complete HQ AFPC/DPSOE evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 30 Jul 10 for review and comment within 30 days (Exhibit E). As of this date, this office has not received a response. _________________________________________________________________ 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 AFLOA/JAJM and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. 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 that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC-2010-01092 in Executive Session on 5 October 2010, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 12 Mar 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 1 Jun 10. Exhibit D. Letter, HQ AFPC/DPSOE, dated 13 Jul 10. Exhibit E. Letter, SAF/MRBR, dated 30 Jul 10. Panel Chair