RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02419 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. Any and all references to his demotion action to the grade of Senior Master Sergeant (SMSgt), to include all referral Enlisted Performance Reports (EPRs), denial of reenlistment and any unsubstantiated allegations that formed their bases be removed. 2. His promotion to the grade of Chief Master Sergeant (CMSgt) be fully restored with the original Date of Rank (DOR) and effective date of 1 Sep 05. ________________________________________________________________ THE APPLICANT CONTENDS THAT: The demotion action taken by the 22nd Air Force Commander (22nd AF/CC) was erroneous, deficient and unjust. The demotion authority improperly used the demotion process to address allegations of misconduct, incorrectly cited the wrong Air Force directive, and did not contain all of the specific reasons for the proposed action or a complete summary of all supporting facts, as required under Air Force Instruction. The 22nd AF/CC did not have the legal authority to demote a CMSgt. No documentation was provided to establish delegation of authority from the Air Force Reserve Command, Vice Commander (AFRC/CV) to the Numbered Air Force Commander. The demotion action was an arbitrary and capricious command action and subject to unlawful command influence as in United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006). He requested a personal appearance during the demotion process in accordance with Air Force policy; however, he did not receive one. He was never given a copy of the full administrative record. The bases for his denial of reenlistment were substantially identical to those cited in support of the demotion action; both are false and took place between 2005 and 2008. In support of his appeal, the applicant provides a brief from counsel, copies of a Letter of Counseling (LOC), dated 8 May 07, with rebuttal; Letter of Admonishment (LOA), dated 11 Sep 07, with attachments; Letter of Reprimand (LOR), dated 5 Dec 07 and 31 May 08, with rebuttals; the Notification of Demotion, dated 9 Jun 09; appeal of the demotion action sent to the AFRC Commander (AFRC/CC); demotion action, dated 6 Jan 10, acknowledged on 18 May 10; award certificates; Enlisted Performance Reports (EPRs); civilian appraisals; two Commander Directed Investigations (CDIs), Air Force Office of Special Investigation (AFOSI) report; congressional inquiry; character reference letters, and various other documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 17 May 04, the applicant reenlisted for a period of six years in the grade of SMSgt. On 1 Sep 05, he was promoted to the grade of CMSgt. According to the AFRC/IG report, dated 1 Dec 08, the IG conducted an investigation into allegations that the applicant had reprised against other members of his unit. The following allegations were filed: On 12 Jun 08, the applicant restricted the Senior Noncommissioned Officer’s (SNCO’s) access to the squadron flying schedule in reprisal for making a protected communication, in violation 10 U.S.C. § 1034, as implemented by AFI 90-301, Inspector General Complaints Resolution. Finding: NOT SUBSTANTIATED. On 28 Aug 08, the applicant issued a downgraded EPR to a SNCO in reprisal for making protected communication in violation of 10 U.S.C. § 1034, as implemented by AFI 90-301, Inspector General Complaints Resolution. Finding: SUBSTANTIATED. According to an AFRC/JA letter, dated 18 Feb 09, a CDI was initiated after a second congressional inquiry raised allegations of wrongdoing against the applicant. A list of allegations reflects the applicant (1) altered civilian time cards and military pay cards between Dec 06 – Aug 07; (2) engaged in unprofessional conduct and inappropriate behavior by engaging in inappropriate personal conduct in his office; (3) engaged in unprofessional conduct and inappropriate behavior as the Flight Engineer Supervisor after a subordinate witnessed inappropriate personal conduct; (4) engaged in unprofessional conduct and inappropriate behavior by making inappropriate disclosure of a member’s private medical information from Sep – Oct 06; (5) engaged in unprofessional conduct and inappropriate behavior by inappropriately recording conversations with unit members without their knowledge or consent. All allegations were substantiated. JA stated that the investigation complied with all applicable legal and administrative requirements and there were no errors or legal irregularities. In a letter, dated 9 Jun 09, the 514th Operations Group Commander (514thOG/CC) notified the applicant that he was recommending to the AFRC Commander (AFRC/CC) that he be demoted . The basis for the demotion action was his failure to fulfill NCO responsibilities. According to his EPR, closing 9 Jul 09, the applicant received a referral EPR; with a performance assessment of “Does Not Meet Standards” in Section III, Item 6. There were also comments pertaining to the applicant’s failure to assemble and lead a cohesive section which severely impacted squadron morale. In a letter, dated 5 Oct 09, the 22nd Assistant Staff Judge Advocate (SJA) found that a legal basis existed to authorize the proposed demotion action. The basis for this demotion action was a violation of AFI 36-2503, paragraph 17.2 (dated 20 Jul 94), Failure to Fulfill NCO Responsibilities. The Assistant SJA noted that the actions substantiated in the IG Record of Investigation (ROI) and AFRC/CV CDI on the part of the applicant did not meet the standards expected of NCOs and opined that the proposed demotion action was authorized under the facts of the case. According to Special Order AA-003, dated 26 Mar 10, the applicant was demoted to the grade of SMSgt, with an effective date and DOR of 6 Jan 10, in accordance with AFI 36-2503, para 17.2. According to an AF Form 418, Selective Reenlistment Program Consideration, on 30 Apr 10, the applicant’s commander non- selected him for reenlistment based on a pattern of disciplinary infractions, substandard attitude, performance and leadership which were inconsistent with the standards expected of an NCO. On 18 May 10, the applicant acknowledged receipt of the demotion action. On 17 Aug 10, the applicant submitted an appeal to the AFRC/CC. According to a letter, dated 7 Aug 10, the applicant submitted an Article 138 complaint alleging that his demotion to the grade of SMSgt was arbitrary and capricious. The 514th OG/CC responded, by letter, dated 22 Oct 10, stating his complaint was untimely because it was not submitted within 180 days of the demotion action. The commander advised the applicant that his complaint was denied because there was another complaint channel available to challenge any wrongs the commander may have committed during his demotion action. The letter also advised that such complaints were not normally reviewed under Article 138. He was further advised that he had fully and vigorously exercised his procedural rights to challenge the commander’s decision to demote him and the decision was fully reviewed and upheld through the procedures and appellate process of AFI 36- 2503. According to a 514th Force Support Squadron (514th FSS) letter, dated 13 Aug 10, the applicant met a reenlistment appeal board and the board recommended the applicant be allowed to reenlist. On 24 Sep 10, the 514th Air Mobility Wing Commander (514th AMW/CC) denied his appeal. In a letter, dated 11 Jul 11, the Secretary of the Air Force Personnel Council (SAFPC) found the applicant did not serve satisfactorily in any higher grade than SMSgt and stated he would not be advanced on the Retired Reserve List under the provisions of Air Force Instruction 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, para 5.14.8. According to Reserve Order EK-5771, dated 31 Aug 11, on 5 Jan 12, the applicant was retired in the grade of SMSgt and was transferred to the Air Force Reserve Retired List, awaiting pay at age 60. ________________________________________________________________ THE AIR FORCE EVALUATION: AFRC/JA recommends denial. Prior to his last Air Force Reserve assignment the applicant had an exemplary record; however, he failed to fulfill his NCO responsibilities in this last assignment. After being provided with numerous opportunities to correct his behavior and supervisory skills, a demotion action was taken. This action was taken by the 22nd AF/CC who had been legally delegated this ability. The applicant’s entire military record was reviewed by both the demotion authority and the demotion appellate authority (AFRC/CC). The demotion action is appropriate under the circumstances. The following allegations were substantiated during a HQ AFRC/IGD reprisal investigation and a CDI directed by the AFRC/CV. The investigations substantiated allegations that, “on 28 Aug 08, you issued a downgraded EPR … in reprisal for making a protected communication. You engaged in inappropriate personal conduct in your office on 26 Apr 07, when discovered in a compromising position with a female employee, not your wife, who works on base, drinking alcohol in your office in front of subordinates on duty. You publicly communicated a veiled threat regarding the promotion opportunity of the witness who discovered and reported your indiscretions described above, an enlisted member of your unit junior in rank. You improperly disclosed medical information that had been provided to you. The applicant claims that the demotion action taken by the 22nd AF/CC was erroneous, deficient and unjust in that the demotion authority improperly used this administrative process to address allegations of misconduct. There is valid basis for the demotion action. The numerous written counselings provided the applicant with ample opportunities to change his behavior and improve his management skills. The demotion action was not used in lieu of other more appropriate discipline; it was the appropriate tool to address this culmination of supervisory failures on the part of the applicant. Although the applicant was brought in to correct deficiencies in the unit, his actions made the situation worse. He inflamed the fires of mistrust and disrespect by secretly recording conversations, divulging private medical information in violation of the Privacy Act and acting inappropriately in his office. An example of the applicant's failure to fulfill his NCO responsibilities was his disrespectful response to his 8 May 07 LOC. He claims the 22nd AF/CC did not have the authority to act on a demotion action for a CMSgt. However, the applicable AFI is AFI 36-2503, Administrative Demotion of Airmen, dated 20 Jul 94, which was in effect at the time of demotion initiation. The AFI has been superseded by AFI 36-2502, Airmen Promotion/Demotion Programs, dated 31 Dec 09, but that AFI does not apply to Reserve personnel. Therefore, AFPD 36-25, Military Promotion and Demotion, is the authority to demote in the Reserve, and AFI 36-2503 is used for administrative guidance. He also claims that the demotion action was an arbitrary and capricious command action and was subject to unlawful command influence. The applicant states that the unlawful command action complaint is based on "an overreaction to a Congressman's communication with the Air Force. To his credit, the CDI Investigation Officer (IO) did document those communications and revealed that pressure from the Congressman caused headquarters to order reinvestigation of allegations previously found to be unsubstantiated." However, there is nothing in the application (or alleged in the application) that shows the findings of the CDI were based on pressure from the Congressman. Finally, the applicant claims that he requested a personal appearance during the demotion process and was denied a personal appearance. This is simply untrue. When the 22nd AF/CC reviewed the demotion appeal he asked whether a personal hearing was held and asked for a Memorandum for the Record (MFR) summarizing the meeting. The 22nd AF/CC felt the applicant should have been provided the opportunity. The OG/CC provided an MFR that summarized his meeting with the applicant on 15 Apr 10. He discussed the circumstances surrounding the demotion and the applicant explained why each allegation was inaccurate. However, as with the application to the Board, the applicant did not present any new evidence. Accordingly, there was no procedural deficiency because he did have a personal hearing. The evidence provided by the applicant does not show the demotion and appellate authorities did not review his prior outstanding military record. In fact, it shows the opposite. During his demotion response and appeal, the applicant provided all of his EPRs, awards, training certificates, and numerous character statements. All of this information provided by the applicant was reviewed by both the demotion authority and the demotion appellate authority in making the final decision to demote. The complete AFRC/JA evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Counsel noted several facts in the advisory opinion related to the administrative record were inaccurate. First, it incorrectly asserts that the applicant was demoted on 26 May 10. However, the demotion was effective on 6 Jan 10. Second, the opinion incorrectly asserts the applicant’s End Of Service (ETS) [sic] was 16 Apr 11; however, his Extension of Enlistment, dated 16 Aug 11, correctly reports his Expiration Term of Service (ETS) as 16 Aug 11. Third, the advisory opinion incorrectly reports that the applicant retired from the Air Force Reserve on 27 Jul 11, when he was actually transferred to the Retired Reserve on 5 Jan 12. In addition to these inaccuracies, the advisory opinion incorrectly summarizes the applicant's claims by omitting his allegations of error and injustice relating to the claims raised during the demotion appeal action. The advisory opinion falsely claims that the IG substantiated an allegation that the applicant “was drinking alcohol in his office with subordinates.” No such allegation was ever made or investigated and no such finding was ever made. Rather than recapitulating the information and arguments contained within the demotion action appeal, the applicant respectfully requests the Board consider the actual merits of the allegations as discussed at length therein. The advisory opinion fails to address the underlying truth or falsity of the disputed facts it asserts as “background.” Its analysis is thus both superficial and lazy in condemning the applicant without meeting his arguments or addressing his evidence. The Board has "an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief." Caddington v. United States, 178 F Supp. 604,607 (Ct.Cl.1959). The advisory opinion fails to assist the Board in this most basic task. With respect to the applicant's claim of error and injustice relating to the misuse of the demotion action to address allegations of misconduct, the advisory opinion grossly mischaracterizes the record. The demotion action was not initiated to address "supervisory failures" or lack of improvement in “management skills.” There is no discussion of the applicant's job performance or mission accomplishment in the Notification of Demotion Action, dated 9 Jun 09. Instead, the notification addresses itself exclusively to CDIs, "allegations of personal and professional misconduct," and the listing of four specific allegations of misconduct. Counsel highlights the applicant’s outstanding performance, kudos, accolades and awards. He notes the additional rater’s comments in the applicant’s EPR that the applicant had "superior abilities" and was an "extremely valuable Senior NCO [who] helps squadron leadership manage multiple high-visibility issues daily." He also noted that the additional rater who made these comments was the officer who initiated the demotion action. The advisory opinion selectively quotes from a Board’s opinion, which is not precedential. The assertion that AFI 36-2502, which does not apply to Reserve personnel, superseded the authority of AFI 36-2503 regarding the demotion of Reserve CMSgts is unsupported in law. AFI 36-2502 is dated 6 Aug 02, so the claim that it both superseded AFI 36-2503 and that AFI 36- 2503 was the governing AFI in effect at the time of demotion initiation in this case is incomprehensible. Similarly, the language quoted from BC-2012-02002 indicates the Board determined AFI 36-2503 would continue to be used as procedural guidance when implementing demotions. Thus, this is not a situation where military commanders lacked guidance from the Secretary. Moreover, the advisory opinion provides no document or other proof that "the commander" issued verbal instructions unlawfully modifying the expressed directive of the Secretary of the Air Force contained in paragraph 16.1.3 of AFI 36-2503 that the demotion authority for CMSgts is the HQ AFRC Vice Commander (AFRC/CV). Interestingly, the legal review of 5 Oct 09, indicates in paragraph 2.b that the designation of the 22nd AF/CC was made by the AFRC/CV, and not “the commander.” Like the other branches of the military, the Air Force is governed by written regulations and instructions, and is required to abide by them. See, e.g., WG. Cosby Transfer & Storage Corp. v. Froehlke, 480 F.2d 498 (4th Cir. 1969) "The Service's regulation itself provides the applicable law for judicial review of the agency action because it carefully defines the limits of the commander's discretion ….” In keeping with its cavalier approach, the advisory opinion dismisses concerns raised about unlawful command influence by writing “There is nothing in the application (or alleged in the application) that shows that the findings of the CDI were based upon pressure from the Congressman.” The application, which specifically enclosed and incorporated the demotion action appeal by reference, shows the existence of such improper influence in detail in paragraphs 29 - 40 and 79 - 81. The applicant has never been provided with the official response to the first congressional inquiry of 28 May 08. However, at Tab Q of the demotion action appeal is a copy of a document that purports to contain suggested responses. Critically, the suggested responses exonerated the applicant of virtually all wrongdoing. The ROI clearly documents that the congressman contacted the Air Force the day after receiving a second inquiry from a former member of the applicant’s unit and complained of discrepancies in the response his office received. The congressman requested a new investigation be conducted by new investigator(s) and communicated that "I am sure you'll agree that this is not a good situation." The IO was informed in "veiled" language by AFRC/CV and the congressman’s office that the Air Force's first response to the complaint did not reach the desired conclusions, which led to searching out facts and circumstances of alleged unprofessional conduct/inappropriate behavior from on or about 2005 until 2008." First, by virtue of the IO’s assignment to review the findings and conclusions of the Wing/CC's response to the former SNCO’s first congressional inquiry, the not-too-subtle implication was the IO was assigned to reverse them. Secondly, the bar was lowered from the investigation of "misconduct" and "violations of the UCMJ" to now merely looking into "unprofessional" or "inappropriate" behavior. Thirdly, the investigation was widened from one examining discreet specific allegations into a witch-hunt involving all possible inappropriate behavior between 2005 and 2008, thus allowing reexamination of matters previously addressed and found unsubstantiated. Lastly, the advisory opinion attempts to paper over the applicant's allegation that he was not afforded a personal hearing in accordance with paragraphs 19.2 and 19.3 of AFI 36- 2503. The advisory opinion asserts about a summarized meeting between the applicant and the commander, on 15 Apr 10. This statement is simply unbelievable. No such MFR has ever been provided to the applicant. The 22nd AF/CC approved the applicant's demotion on 6 Jan 10, wherein he indicated that he "considered all materials presented by the applicant, including a rebuttal dated 21 Aug 09." Special Order AA-003 dated 26 Mar 10, confirmed the verbal orders of the commander demoting the applicant effective 6 Jan 10. Thus, this 15 Apr 10 "meeting," which did not constitute a personal hearing, reportedly took place well after the demotion had already been approved and confirmed by the Special Order. Paragraph 19.3 of AFI 36- 2503 requires the initiating commander to write a summary of the personal hearing that must be included as part of the case file and considered as part of the SJA legal review. No such summary has ever been provided to the applicant and there is no reference to any personal hearing. Moreover, on 7 Aug 10, the applicant submitted a Complaint of Wrongs under Article 138, UCMJ against the commander, specifically, for his failure to afford the applicant a personal hearing and his failure to adequately and personally investigate and address the allegations. In further support of his appeal, the applicant provides counsel’s statement; copies of letters of support; demotion notification/appeal actions and various other documents associated with his requests. 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. After a careful review of the available evidence of record and the applicant's complete submission, we do not find evidentiary documentation that warrants restoring his grade to CMSgt or to remove any references to his demotion to the grade of SMSgt, his denial of reenlistment or the unsubstantiated allegations that formed their bases. In this respect, we note, there are four main arguments the applicant’s submits that are paramount to his case. a) the demotion action is erroneous, deficient, and unjust; b) the 22nd AF/CC did not have demotion authority; c) he did not receive a personal hearing IAW the governing Air Force authority; d) his demotion action was arbitrary and capricious. However, AFRC/JA has conducted an exhaustive review of the applicant’s issues and we are in agreement with their recommendation that relief is not warranted. Also pointed out in rebuttal, counsel notes that there were a few misstatements in the advisory opinion as to the applicant’s effective date of promotion, his ETS and retirement date, and misplaced allegations noted in the CDIs and the IG report that falsely claimed that the IG substantiated an allegation that the applicant “was drinking alcohol in his office with subordinates.” We did not find any such allegation in the IG report. In our view, the IO investigation determined that the applicant admitted to drinking in his office; however, there was no such allegation substantiated in the CDI or the IG report. Counsel’s mention of these comments is noteworthy. Further, we reviewed the applicant’s complete record, including the evidence provided by the applicant himself, and these inconsistencies noted in the advisory opinion had no bearing on our understanding or the facts which led us to our determination in this case. As a matter of clarity we provide the following: a. Regarding counsel’s argument that the demotion action was erroneous, deficient and unjust and that procedurally it was more appropriate to handle allegations of misconduct through the UCMJ. While we agree that Air Force policy requires that commanders not use administrative demotions when it is more appropriate to take actions specified by the UCMJ, the applicant was demoted based on his failure to fulfill his NCO responsibilities. The Air Force gives commanders considerable deference in such matters, and we are not convinced by the evidence provided that the administrative actions taken by his commanders were inappropriate or beyond their scope of authority, or that the actions taken were precipitated by anything other than the applicant's own conduct. Prior to the applicant’s demotion several actions were used, including a LOC, two LORs, and a LOA, in an attempt to rehabilitate the applicant, prior to demoting him for failure to fulfill his NCO responsibilities. Further, we note in response to the LOC, after explaining his position, the applicant told his commanding officer, “So you have my signed LOC and to be quite frank I don’t care what you do with it.” Accepting counsel’s argument regarding the applicant’s record of outstanding performance and the applicant’s promotion to CMSgt as a result thereof, we find the commander’s decision to pursue demotion on the basis of the applicant’s conduct, which essentially is a failure to fulfill his NCO responsibilities, a reasonable action under the circumstances. While the applicant and counsel may disagree with the commander’s decision, they have not provided evidence that convinces this Board the action was arbitrary or capricious. b. In respect to counsel’s argument that 22nd AF/CC did not have demotion authority for CMSgts, we note that at the time the demotion action was initiated the governing AFI 36-2503, dated 20 Jul 94, was the authority; however, on 31 Dec 09, AFI 36-2502 was revised which superseded AFI 36-2503, but it did not apply to the Air Force Reserve members. So, while we can understand why counsel may be confounded by the Air Force’s governing authority in this matter, we do not find that counsel’s argument has merit. In our view, this new AFI negated the authority delegated to AFRC/CV to demote a CMSgt and the verbal order of the commander as well. Therefore, AFPD 36-25 became the governing guidance which gives the AFRC/CC the authority to demote an Air Force Reserve member. In addition, as noted in the advisory, JA opined that while AFPD 36-25 was the governing authority, AFI 36-2503 was used as guidance. JA further notes that the applicant’s demotion action was reviewed by AFRC/CC on appeal, which in our view afforded the applicant full administrative due process in the demotion action. Additionally, we note that counsel makes reference that JA’s opinion that AFI 36-2502 superseded AFI 36-2503 is incomprehensible, we would like to note that counsel is referencing the AFI 36-2502, dated 6 Aug 02; however, AFI 36- 2502 was revised on 31 Dec 09, which is the authority that superseded AFI 36-2503. c. Counsel argues that the applicant did not receive a personal hearing IAW the governing AFI in effect at the time. As noted above, AFI 36-2503, the governing directive in effect when the demotion action was initiated, was superseded prior to the demotion action being completed. Hence, it could be argued that a personal hearing was no longer necessary; nonetheless, the applicant was still afforded a personal hearing under the previous guidance. In this respect, as previously noted in JA’s opinion, while considering the demotion action under appeal, the 22nd AF/CC discovered that the record did not have a summary of a personal hearing and requested a MFR summarizing the hearing. The 22nd AF/CC was advised that a hearing was held on 15 Apr 10 and the initiating commander, 514th OG/CC, provided him a summary of the hearing. The applicant acknowledged receipt of the demotion action and elected to appeal this action. The 22nd AF/CC considered the available evidence and the applicant’s appeal was forwarded to the AFRC/CC, who was the approval authority, for final action. While clearly the personal hearing in this case did not occur as normally required in the original policy, the question for this Board was whether the applicant received the benefit of the personal hearing albeit not in the normal order. We believe so as we note there was still a clear opportunity for the demotion action to be stopped had the promotion authority found merit in the applicant’s arguments. In the applicant’s submission, he provides a copy of the appeal addressed to the AFRC/CC that was submitted by counsel, and his demotion action was upheld. d. Counsel argues that the demotion action was the result of arbitrary and capricious action by the demotion authority that contravened the governing service regulations. In support of this contention, counsel notes a military justice court case (United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006) where the court ruled that the applicant was demoted under the UCMJ based on pressure from outside influences. Even though counsel makes the argument that the CDI(s) were the result of pressure from a Member of Congress, we do not find the circumstances under the reference case more than superficially similar to the circumstances which led to the applicant’s demotion. The applicant was administratively demoted based on a failure of his NCO responsibilities and as noted above, we did not find the evidence sufficient to establish that the commander improperly used his discretionary command authority. In our view, the involvement of the Member of Congress was at the behest of another military member assigned to the unit. Thus, we find it reasonable for the unit to respond to the expressed concerns. Based on our review of the CDI(s), it appears that those incidents of misconduct substantiated by the investigating officer were supported by sufficient evidence. Consequently, it follows that the commander had justification for the action taken. Based on the evidence presented, the applicant has not presented evidence that the demotion action was influenced by the Congressman or that the CDI(s) was conducted with a preconceived outcome. Therefore, while counsel believes the CDI(s) was the result of outside influence, we did not come to this conclusion. In our view, the commander’s determination to demote the applicant was a result of the substantiated allegations, not any outside influence. 5. On balance, we concede that there were administrative errors, misstatements and confusion surrounding the demotion action at the center of this case. However, we find no basis to substitute our judgment for that of the commanders involved in this case. In our view the issue is not whether or not we believe the applicant should have been demoted, rather does the evidence support there has been an error on the part of the Air Force that raises the action to the level of an injustice. We do not think so. Based on a preponderance of evidence, we do not find the applicant has been deprived of due process and do find that, although not administratively perfect, the process was sufficient to provide him fair and equitable consideration. Therefore, in view of the above, we find no basis to recommend granting the relief sought in this application. 6. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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-2013-02419 in Executive Session on 26 Jun 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 May 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/JA, dated 16 Jul 13. Exhibit D. Letter, SAF/MRBR, dated 5 Aug 13. Exhibit E. Letter, Counsel, dated 2 Sep 13, w/atchs.