RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03246
            INDEX NUMBER:  131.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His promotion to technical sergeant (TSgt), withheld by his  commander
in a notification memorandum dated 22 Jan 03,  for  a  period  of  six
months, be reinstated.

In his rebuttal to the Air Force evaluations  (Exhibit  F),  applicant
clarifies his request to state the following:

        a.  His promotion to TSgt (E-6) be reinstated with a  date  of
rank (DOR) of 1 Feb 03.

        b.  After reinstatement of his promotion to  TSgt,  the  Board
approve a reduction to the grade of staff sergeant (SSgt) (E-5).

        c.  His forfeitures of $500.00 per month for two months be set
aside or the Board provide any other relief they believe is fitting.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His promotion to TSgt was withheld effective 1 Feb 03 and should  have
expired on 31 Jul 03.  Although he had charges referred against him by
special court-martial in Sep 03, since the  withhold  action  was  not
extended, his promotion should have been effective 1 Aug 03.  The  way
the withhold action was processed deprived  him  of  the  right  to  a
presumption of innocence and due process.

In support of his appeal, applicant submits a  two-page  statement,  a
copy of the special order announcing his promotion, and a copy of  the
promotion withhold action served by his commander.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 26  Mar  91  and
was promoted up to the grade of staff sergeant (SSgt) (E-5).   He  was
tentatively selected for promotion to the grade of TSgt  during  cycle
02E6.  However, due to a pending  investigation  for  engaging  in  an
unprofessional relationship, the applicant’s commander notified him on
22 Jan 03 he was nonrecommending him for promotion for a period of six
months.  On 29 Sep 03, the  applicant  was  tried  by  special  court-
martial for failing to obey a lawful general instruction by wrongfully
engaging in a sexual and personal social relationship with  an  airman
basic, technical training student, while he was a member of the staff.
 The applicant pleaded guilty and was sentenced by the  court  members
to a  reprimand,  reduction  to  the  grade  of  airman  (Amn)  (E-2),
forfeiture of $500.00 pay per month for six  months,  and  confinement
for 3  months.   The  approved  sentence  consisted  of  a  reprimand,
reduction to airman, forfeiture of  $500.00  pay  per  month  for  two
months, and confinement for two months.  As a result of his  reduction
to the grade of airman and having at least 12 years  of  total  active
federal military service (TAFMS), the applicant was advised on 22  Dec
03 that he was required to separate from the Air Force no  later  than
22 Jan 04.  The applicant was honorably discharged from the Air  Force
on 22 Jan 04,  and  was  issued  an  RE  Code  of  2C,  “Involuntarily
separated with an honorable discharge.”

A resume of the applicant’s  last  ten  enlisted  performance  reports
(EPRs) while on active duty follows:

        Closeout Date                   Overall Rating

         15 Nov 93                           5
         15 Nov 94                           5
         29 Nov 95                           5
         26 Jun 96                           5
         26 Jun 97                           5
         11 May 98                           4
         11 May 99                           4
         11 May 00                           5
         14 Mar 01                           5
         31 Dec 01                           5
         31 Dec 02                           5

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial of the applicant’s request.  A commander
may withhold an airman’s promotion if he or she is under investigation
or the subject of an inquiry, military or civil law, that  may  result
in  action  under  the  UCMJ  or  prosecution  by  civil  authorities.
Although there is  no  documentation  either  extending  the  withhold
action or nonrecommending promotion, there is  also  no  documentation
recommending the applicant be promoted.  One of the  requirements  for
promotion to any rank is the written recommendation of  the  promotion
authority.

The complete evaluation is at Exhibit C.

AFPC/JA also  recommends  denial  of  the  applicant’s  request.   The
applicant is incorrect in his contention that his  promotion  to  TSgt
should have automatically occurred on 1 Aug 03 (with the original date
of rank of 1 Feb  03).   Commanders  are  required  to  recommend,  in
writing, the promotion of any airman before it  is  effective.   Thus,
notwithstanding the expiration of the withhold period discussed in the
applicant’s commander’s original letter, he  would  have  remained  an
SSgt until he received the court-martial sentence.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation,  the  applicant  outlines
the parts of the action taken against him  he  considers  appropriate.
He  believes  the  actions  to  take  his  promotion  along  with  the
accompanying loss of pay and privileges were not necessary.  As  such,
he opines it was a discretionary action and is subject to review as an
abuse of discretion by the imposing authority.

Applicant points out the advisory prepared by AFPC/JA quotes  AFI  36-
2502 as stating in Table 2.1, Rule 6 that commanders  “will”  withhold
an airman’s promotion if he or she is under  investigation.   However,
applicant notes the rule actually states “may”  withhold  an  airman’s
promotion.  The applicant opines that  since  the  withholding  was  a
discretionary action,  he  believes  it  appropriate  to  discuss  the
necessity of the action  taken  by  his  commander  in  light  of  his
exemplary record up to the time the action was taken.  He  states  the
discretionary  action  was  not   required   by   the   circumstances.
Additionally, the Air Force has multiple avenues to demote individuals
when misconduct is proven.  The applicant again discusses the  set  of
events surrounding the withhold action.   He  also  discusses  how  he
believes the  withholding  action  violated  the  principle  of  being
innocent until proven guilty  in  a  court  of  law.   He  states  the
withholding action resulted in his being fined over $300.00 per  month
based on an allegation.

The applicant discusses his case in light of  actions  recently  taken
against the Air Force Judge Advocate General for his  misconduct.   He
goes on to opine that comparatively speaking,  the  disparate  actions
taken in the  two  cases  “screams”  the  manifest  injustice  of  the
military  justice  system.   The  applicant  also  cites  three  cases
involving Air Force  NCOs  who  were  also  instructors  with  similar
offenses where the punishments received were lighter than his.

The applicant states he is requesting clemency from the Board.  He  is
requesting his promotion to TSgt be reinstated with  a  date  of  rank
(DOR) of 1 Feb 03 and he then be reduced  from  E-6  to  E-5  and  the
forfeitures of $500 per month for two months be set aside.

In support of his requests, applicant cites  his  good  character  and
responsible citizenship.  He reviews his record and actions during and
after his investigation.

The applicant’s complete response, with attachments, is at Exhibit F.

_________________________________________________________________

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 opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of an error or injustice.  While the  initial  withhold  action
may have exceeded the six months indicated in the letter, we  find  it
reasonable to assume the commander  would  not  have  recommended  the
applicant  for  promotion  in  writing  as  required   by   applicable
directives.   Further,  we  note  that  had  circumstances  eventually
dictated the applicant should have been promoted, this could have been
easily done.  In our view,  the  commander’s  determination  that  the
concluded investigation of the applicant warranted preferral of court-
martial charges provides a reasonable basis for his extended promotion
withhold  action.   The  applicant  devotes  much  discussion  to  the
appropriateness of the punishment he received when viewed in light  of
that received by others for similar or greater  offenses.   Given  the
organization of the Air Force  and  the  fact  that  military  justice
resides primarily with individual  commanders,  such  comparisons  are
generally not helpful in making such a  determination.   Although  the
applicant’s punishment may differ from others he is aware of,  he  has
not provided sufficient evidence in this case to show “his”  commander
abused his discretionary authority or that his actions were  arbitrary
or capricious.  Therefore, in the absence of evidence to the contrary,
we find no compelling 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-2004-
03246 in Executive Session on 2 February 2005, under the provisions of
AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Mr. Vance E. Lineberger, Member
      Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Oct 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPPWB, dated 25 Oct 04.
    Exhibit D.  Memorandum, AFPC/JA, dated 6 Dec 04.
    Exhibit E.  Letter, SAF/MRBR, dated 10 Dec 04.
    Exhibit F.  Letter, Applicant, dated 14 Jan 05, w/atchs.




                                   ROSCOE HINTON, JR.
                                   Panel Chair