RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-02582

            COUNSEL:  J. SETH WHIPPER

            HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

1. The Secretary of the Air Force appoint an independent non-bias member  to
   conduct a fact-finding investigation.

2. He be retroactively promoted to the grade of master sergeant (E-7).

3. The Letters of Demotion (LODs), Letters  of  Reprimand  (LORs)  and  oral
   admonishment letters, be removed from his records.


APPLICANT CONTENDS THAT:

The commander acted outside of his scope of authority and  singled  him  out
for demotion.

The applicant states  that  the  Inspector  General  (IG)  investigation  is
flawed, without merit, and fails to stand-up to the scrutiny  of  facts  and
circumstances.  The investigation severely failed to gather facts and point-
out key issues.  The investigation does  not  indicate  the  prognosis,  nor
does it indicate any mitigating factors that would have rendered  sufficient
evidence to show that applicant was not creditable  or  differentiated  from
the doctor’s report.  The investigation indicated  that,  “others  who  have
not complied with these same standards have  been  separated  from  the  Air
Force.”  However, this is false since another member not  of  his  race  who
had  a  profile  “4”  dental  condition  was  not  given  letters  of   oral
admonishment, counseling, or reprimand.  There has been no  one  demoted  in
the history of the organization for a profile “4” dental condition  spanning
over 30 years.  To the contrary, others with the same conditions were  given
an excuse to not report  for  duty.   Furthermore,  during  the  root  canal
operation, a pulp  (swelling)  was  discovered  in  the  gum  area  and  the
physician placed the applicant on  500  milligrams  of  penicillin  and  the
condition  cleared.   Although  he  was  returned  to  duty  by  the  clinic
4 October 1997 and was 100%  ready  reserve  status  cleared  for  worldwide
duty, the commander removed pay and points for this  date  and  proposed  to
demote him while in inactive status.

The applicant’s complete submission is attached at Exhibit A.


STATEMENT OF FACTS:

On 8 February 1997, the applicant filed a complaint with the Social  Actions
Office, alleging discrimination.   On  22  July  1997,  the  Social  Actions
Office  completed  its  investigation  and  found  applicant’s   allegations
unsubstantiated.

The applicant filed an Inspector General (IG)  complaint  on  28  May  1997,
alleging, among other things, reprisal by the commander.  The  investigation
was conducted under the provisions of Title 10, United  States  Code  (USC),
Section  1034,  “Military  Whistleblower  Protection  Act,”  and  found  the
allegations were unsubstantiated in their entirety.

On 30 September 1998, the Secretary  of  the  Air  Force  Inspector  General
(SAF/IG)  reviewed  the  Report  of  Investigation  (ROI)   and   determined
applicant’s allegations were not substantiated.

On 28 January 1999, the Department of  Defense  Inspector  General  (DoD/IG)
reviewed the ROI and concurred that responsible individuals did not  reprise
against the applicant for making protected communications.

The remaining relevant facts pertaining to this application, extracted  from
the applicant's military records, are contained in the letters  prepared  by
the appropriate offices of the Air Force.  Accordingly, there is no need  to
recite these facts in this Record of Proceedings.


AIR FORCE EVALUATION:

The Chief, Military Personnel Division, AFRC/DPM, reviewed  the  application
and states that applicant’s commander  recommended,  and  received  approval
for, the administrative demotion of the applicant, based on his  failure  to
keep or show a  willingness  to  reach  physical  fitness  standards  (e.g.,
dental standards).  The DoD/IG investigation  stated  that  from  July  1996
through September 1997, the applicant was placed in a  “Failure  to  Comply”
status for failing to meet Air  Force  dental  standards  four  times.   The
DoD/IG investigation further stated that  all  of  the  commander’s  actions
(e.g.,  LOA  &  LORs)  were  justified,  given  the  applicant’s   continued
resistance to change his behavior regarding compliance with  legitimate  Air
Force medical requirements.  Therefore, they recommend  the  application  be
denied.

A complete copy of the Air Force evaluation is attached at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluation  and  states  that
the investigation does not meet muster and would not pass any acid  test  in
a legal tribunal.  The LOA and LORs were written during a  period  when  the
applicant was not on any military status.  In addition, the  letter  written
by the first sergeant has nothing to do  with  resistance  to  changing  his
medical condition or behavior.  The key point is a  missing  medical  record
controlled by the clinic, not the applicant’s  resistance  to  changing  his
medical condition or behavior.  Furthermore, the demotion is  without  merit
and was taken after the applicant was cleared by the  clinic  and  was  TDY.
Inconsistency and a unique portrayal of unfound facts  tend  to  demonstrate
further misrepresentation of the facts.  The applicant’s  complete  response
is attached at Exhibit E.


ADDITIONAL AIR FORCE EVALUATION:

The Director, Military Justice, (AFRC/JAJ),  reviewed  the  application  and
states  that  the  LORs  and  demotion  action  complied   with   applicable
regulations and  the  allegations  contained  therein  are  supported  by  a
preponderance of the evidence.  A  dental  profile  of  “4”  disqualifies  a
member from military duty and  precludes  them  from  performing  active  or
inactive military duty  until  the  profile  is  upgraded.   Therefore,  the
applicant was correctly prohibited from participating  in  a  Unit  Training
Assembly (UTA) while he was in dental profile “4.”  Although it  is  unusual
for two LORs to be dated the same day, each LOR addresses different  conduct
by the applicant that  are  totally  unrelated.   In  addition,  involuntary
demotion action can be initiated  for  failing  to  fulfill  Noncommissioned
Officer  (NCO)  responsibilities  and  for  failing  to  keep  or   show   a
willingness to reach physical fitness standards.  The applicant  refused  to
comply with mandatory dental requirements, made false statements  about  his
progress with compliance, was disrespectful to his  supervisor,  and  caused
problems at the clinic.  Therefore, the applicant’s demotion was proper.

A complete copy of the evaluation is at Exhibit G.


APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant’s counsel reviewed the evaluation and  states  that  there  is
not a single  event  that  has,  or  would,  lead  to  the  conclusion  that
applicant has not complied with the requirements of his medical  conditions.
 Comparatively, he has exceeded his requirements in a  timely  manner.   The
scope of the issues and events leading up to the commander’s final  decision
shows a litany  of  double  standards  and  a  battery  of  ill  constructed
reprisal acts to justify the bias disposition taken by the commander.

A complete copy of counsel’s response, with attachments, is at Exhibit I.


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 probable error or injustice.  After  thoroughly  reviewing  the
evidence of record and  noting  the  applicant’s  contentions,  we  are  not
persuaded the commander acted outside of his scope of authority and  singled
the applicant  out  for  demotion.   We  find  no  evidence  that  pertinent
regulations were violated or that applicant was not afforded all the  rights
to which entitled. Applicant’s allegations have been reviewed by DoD/IG  and
SAF/IG and found to be unsubstantiated.  We do  not  believe  the  applicant
has provided sufficient evidence to overcome these findings.  Therefore,  we
agree with the opinions and recommendations  of  the  Air  Force  and  adopt
their rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.  In the  absence  of  evidence  to
the contrary, we find no compelling basis to recommend granting  the  relief
sought in this application.

4.    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(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.


THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 this application in  Executive
Session on 5 October 2000, under the provisions of AFI 36-2603:

                  Mr. Gregory H. Petkoff, Panel Chair
                  Mr. Steven A. Shaw, Member
                  Mr. George E. Franklin, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 2 Oct 99, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFRC/DPM, dated 7 Dec 99.
      Exhibit D.  Letter, SAF/MIBR, dated 7 Jan 00.
      Exhibit E.  Letter, Counsel, undated 21 Jan 00.
      Exhibit F.  Letter, AFBCMR, dated 16 Jun 00.
      Exhibit G.  Letter, AFRC/JAJ, dated 4 Aug 00.
      Exhibit H.  Letter, AFBCMR, dated 25 Aug 00.
      Exhibit I.  Letter, Counsel, dated 15 Sep 00, w/atchs.




             GREGORY H. PETKOFF
                                  Panel Chair