RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02407
            INDEX CODE:  129.00

            COUNSEL:  JAMES R. KLIMASKI

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be changed to restore him to the grade of  master  sergeant
(MSgt) and he be reinstated into his former supervisory position.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The few incidents his commander cites in his recommendation to  demote
do not support the demotion decision.   Counsel  for  applicant  cites
AFBCMR Docket number  BC-2000-01271,  wherein  the  Board  noted  when
determining the appropriateness of a demotion,  a  squadron  commander
must consider the member’s  entire  military  record  and  not  a  few
unsatisfactory portions.  Counsel contends applicant has  excelled  as
an Air National Guard (ANG) recruiter and has improved in the  alleged
questionable areas.

Regarding the 21 September 1999 Letter of Admonishment (LOA) given  to
the applicant by his commander, counsel notes his commander spoke only
with applicant’s supervisor – and did not speak  to  the  applicant  –
when determining insubordination; the reason  for  the  LOA.   Counsel
questions the commander’s sole reliance  on  his  phone  call  to  the
applicant’s   supervisor   and   no   other   independent    objective
documentation that concluded the applicant refused to follow an order.
 Applicant was told to direct  his  recruiting  staff  to  visit  high
schools in their respective zones.  The charge that the applicant made
a false statement to his supervisor  indicating  recruiters  had  been
sent to  the  school,  when  they  were  not  sent  on  that  day  was
misunderstood.  Counsel states the LOA accepts only  the  supervisor’s
account  of  the  telephone  calls  and  discounts   the   applicant’s
statements otherwise.

Counsel argues that a second factor precludes  the  LOA  charging  the
applicant  with  insubordination  as   the   applicant   was   already
responsible for sending recruiters to the high schools in question and
his supervisor’s inquiry about the  recruiters  merely  restated  this
duty and did not constitute an order.  Additionally, applicant did not
make a  false  statement  to  his  supervisor  because  the  applicant
believed he was being instructed to arrange school  visits  on  future
dates – which he did.  Counsel states the applicant’s supervisor never
clearly stated his intention that the applicant carry out his order on
that specific day.  Applicant believed the order was for a future date
and that is a reasonable interpretation as it was highly  unusual  for
recruiters to arrange high school visits for the same day.

On 27 February 2000, the applicant  received  a  Letter  of  Reprimand
(LOR) from his commander wherein he  was  charged  with  making  false
statements about his duties  concerning  a  Recruiting  program,  even
after the applicant had  received  earlier  counseling  for  the  same
alleged misrepresentations.  Not only is  the  evidence  for  the  LOR
insufficient, the LOR never describes the false statements or explains
why the statements were considered false.  The commander cannot recall
the exact details of the false statements  but  indicated  he  clearly
recalls that the applicant knowingly made a  false  statement  to  his
supervisor.

The commander’s basis for demotion action is too vague and  lacks  the
evidence necessary to  prove  the  applicant  actually  made  a  false
statement.  The commander’s comment that “…a number of incidents” show
the applicant  did  not  fulfill  his  responsibilities  as  a  master
sergeant are not based on facts  and  therefore  does  not  allow  the
applicant to defend himself.

Counsel notes that the  applicant  was  removed  from  his  Recruiting
Office Supervisor (ROS) position for allegedly failing to perform  his
assigned  duties  at  an  acceptable  level.   The  commander   rebuts
applicant’s claim of lack of evidence by stating he spoke  with  “some
supervisors”  in  applicant’s  chain  of  command,  and  the  “overall
consensus” was the applicant’s performance as a  supervisor  “did  not
meet the expectations of his  superiors  and  those  expected  from  a
senior non-commissioned officer (NCO).”   As  in  the  prior  charges,
counsel notes the commander never provides  specifics  such  as  which
supervisors he  spoke  to  leading  again  to  the  inability  of  the
applicant to defend himself as he does not know with  whom  to  refute
the opinions.   Finally,  counsel  notes  the  applicant  received  an
enlisted performance appraisal for the period 1  February  2000  to  7
August 2000, during which time applicant  was  removed  from  his  ROS
duties.  The commander’s attempt to direct the  “Satisfactory”  rating
to the applicant’s  ROS  duties  and  not  his  recruiting  skills  is
invalid.  The  ROS  duties  and  recruiting  duties  are  inextricably
linked.  Counsel notes applicant’s previous EPR’s as all being  either
“Superior” or “Excellent.”

In regards to the Letter of Counseling (LOC) the applicant received on
25 July 2002, Counsel states both charges – erroneous  enlistment  and
failure to  obtain  a  signed  demotion  letter  –  lack  merit.   His
commander indicates in the LOC the applicant is responsible for a  new
member enlisting into a career field he was not eligible to enlist in.
 The enlistee joined the DCANG on 29 March 2001 and transferred to the
medical squadron on 28 August 2001.  The transfer action was completed
via an Air Force Form 2096, Classification On-The-Job-Training Action,
which is used as a tool to transfer individuals within the unit at any
time after the enlistment process.  The  AF  Form  2096  is  not  even
signed  by  the  applicant.   Regarding  the  demotion  letter,   upon
questioning by  the  commander,  the  enlistee  in  question  did  not
remember signing  a  demotion  letter  but  did  remember  signing  an
overgrade letter on transferring to the medical squadron.  Whether  or
not an erroneous transfer to the medical squadron caused the  enlistee
to avoid a demotion would not have been a concern for the applicant as
he was not in the loop for the transfer action.

The commander points to a problem with another  enlistee  enlisted  by
the applicant who thought she was enlisted into the DCANG as an airman
first class (E3) for six years.   She  was  actually  enlisted  as  an
airman (E2) for six years.  She performed a whole year of duty  before
she complained about her grade.  That said, the  applicant  originally
enlisted the enlistee into what was then considered a critical  career
field that entitled the enlistee  to  enlist  in  the  grade  of  A1C.
During the enlistment process, the  applicant  called  to  verify  the
position was still vacant and found it was not.   Applicant  told  the
enlistee there were no other critical career fields she was  qualified
to enlist in and offered her a position that enabled her to enlist  as
an airman (Amn).  She accepted the position and signed the  enlistment
contract to indicate such.  While he was processing the  paperwork  he
noticed the new paperwork she had signed still showed  her  enlistment
grade as A1C and not Amn.  After  notifying  her  of  the  error,  she
signed the new paperwork.  Upon investigation of her claim, she stated
she did not  notice  the  disparity  in  pay  as  her  drill  pay  was
considered extra money. She did not know how to  read  her  leave  and
earnings statements.  Before Basic Training, she had no idea  what  E1
meant as opposed to other military grades. Her pay  was  automatically
deposited in her account and neither she nor her husband looked at the
direct deposit statements.

Counsel  states  the  AFBCMR  has  established  that  to   prove   the
impropriety of a demotion, the service member must establish that: (a)
the information constituting the basis for the demotion was erroneous;
(b) the demotion action was contrary to governing regulations; or  (c)
there  was  an  abuse  of  discretionary  authority.   Counsel  states
applicant’s entire record of service defeats the demotion action.

In support of his appeal, the  applicant  has  provided  copies  of  a
petition from counsel with several attachments.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a current member of the DCANG has served as a recruiter
with the DCANG since April 1989.  He progressed through the  ranks  to
the grade of master sergeant (E7) and served as the Recruiting  Office
Supervisor (ROS) for the DCANG from 15 February 1999 to 7 March 2000.

The applicant received an LOA for insubordination following  incidents
that occurred  on  21  September  1999.   He  was  instructed  by  his
supervisor to have recruiters visit high schools in  their  respective
zones to which he agreed to do, and  later  that  same  day  told  his
supervisor he had not followed through with his instructions  and  had
known during the earlier conversation that his recruiters would not be
going to the schools that day.  He also allowed a recruiter  excessive
time off for personal business during the period he was to  have  sent
his recruiters on school visits.

On 27 February 2000, he received a LOR  for  making  false  statements
regarding the Right Start program.

On 7 March 2000, he was removed from his Recruiting Office Supervisory
position.

On 23 February 2001, he was issued and he signed a Change of Reporting
Official (CRO) EPR for the rating period 1  February  2000  to  7  Aug
2000, wherein he was  rated  “Satisfactory”.   On  23 March  2001,  he
appealed the EPR.  There is no record of the outcome of his appeal.

On 25 July 2002, he received a LOC for making inconsistent  statements
surrounding an erroneous enlistment.

In June 2003, he was accused of a recruiting irregularity by which  an
enlistee was promised an enlistment at one  grade  and  then  actually
enlisted at a lower grade.

On 16 March 2004, he was demoted to the grade  of  technical  sergeant
(E6) effective and with a date of rank (DOR)  of  10  March  2004  for
failure to fulfill NCO responsibilities.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI states commanders have the responsibility  to  maintain  good
order and discipline in order  to  promote  positive  behavior  within
their command.  A Commander’s  decision  process  involves  subjective
judgment calls that are made based on evidence.   While  the  member,s
counsel states his entire record should be reviewed, one must remember
that  as  a  career  military  member,  the  level  of  responsibility
increases with each promotion.  DPPI defers evaluation of this case to
the AFBCMR.

DPPI’s complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant  provided  a  short  rebuttal  with  several
letters of support  from  the  applicant’s  co-workers  and  chain  of
command.

Applicant’s complete evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

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
including his assertion his entire career should be taken into account
when considering a demotion.  In this regard, we  noted  a  series  of
events to include recruiting irregularities, a  pattern  of  behaviour
and performance that led to administrative  disciplinary  actions  and
eventually a recommendation of demotion  to  the  grade  of  technical
sergeant by the applicant’s commander. Further,  he  appears  to  have
disputed the evidence provided by his commander not so much  for  it’s
inaccuracy but that it did not rise to  a  level  that  would  support
demotion.  We do not  agree.   Other  than  his  own  assertions,  the
applicant has provided no evidence which would lead us to believe that
the information provided is erroneous, or that  his  commander  abused
his discretionary authority. Therefore, 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 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 AFBCMR Docket Number BC-
2004-02407 in Executive Session on 7 July 2005, under  the  provisions
of AFI 36-2603:


      Mr. Richard A. Peterson, Panel Chair
      Ms. Sue A. Lumpkins, Member
      Mr. James W. Russell, III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Jun 04, w/atchs.
    Exhibit B.  Letter, ANGI/DPPI, dated 25 Mar 05, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 1 Apr 05.
    Exhibit D.  Letter, Counsel, dated 28 Jun 05, w/atchs.



                                   RICHARD A. PETERSON
                                   Panel Chair