RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02552
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED: YES


MANDATORY CASE COMPLETION DATE:  12 Feb 2007



_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be changed to reflect a date of  rank  to  master  sergeant
(MSgt) as 23 October 2000 rather than 4 April 2005.

_________________________________________________________________

APPLICANT CONTENDS THAT:

During March  2005,  he  was  the  subject  of  an  investigation  for
allegedly gaining access to another unit  member’s  government  e-mail
account for his personal use.  On 13 March 2005. he attended a meeting
where his Wing Commander offered him an administrative  demotion  from
MSgt to technical sergeant (TSgt).  He was told he was eligible for  a
board hearing of his peers, but that if he  would  sign  the  demotion
paperwork, he  would  be  demoted  with  the  understanding  the  Wing
Commander could reinstate his grade to MSgt at any time.

He waived his rights and signed off on the  demotion  paperwork.   The
Budget officer then told him that the Wing Commander had indicated  he
would get his stripe back between six months and a  year  later.   His
demotion effective date was 4 April 2005.

As he was demoted under the auspices of  ANG  Instruction  (ANGI)  36-
2502, Administrative Demotion of Airmen, he took it  upon  himself  to
check into the demotion process.  He found that  his  DOR  was  to  be
changed to the effective date of the demotion order and that there was
a time in grade  (TIG)  requirement  of  two  years.   Based  on  that
information he felt he would not be  eligible  for  promotion  to  his
former grade of MSgt until 4 April 2007 and not the six  months  to  a
year he was initially told he  would  have  to  wait.   He  took  this
information to his squadron commander who told  him  his  DOR  was  23
October 2000 and that he was therefore eligible for promotion to  MSgt
at any time thereafter.

He contends while all parties involved used ANGI 36-2502 with which to
demote him with the promise he would get his stripe back within a  few
months to a year, they found that the initial ANGI was  dated  January
2004 but had been replaced by a newer version of  ANGI  36-2502  dated
March  2004.   The  newer  version  included  the  TIG  and  new   DOR
requirement  for  those  airmen  administratively  demoted  under  its
auspices.

On 12 June 2005, he contends he was  told  to  generate  a  letter  of
reinstatement of rank back  to  MSgt.   His  Squadron  Commander  then
attached a letter of concurrence and the package was sent  to  the  NJ
State Headquarters.  On 13 July 2005, his squadron commander  notified
him his request had been denied by the NJANG/HQ.

He contends his DOR should be changed back to 23 October 2000,  as  he
waived his rights to have a board hear his case based on the  word  of
his Wing Commander.  Had the Wing Commander not told him he  would  be
promoted back to MSgt if he signed the demotion package, he would have
opted to meet a board of his peers.  He  notes  the  Wing  Commander’s
letter attached to his application wherein the commander  confirms  it
was not his intent to demote the applicant and change his DOR.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, a statement from the Wing Commander, copies of his demotion
package, applicant’s letter asking  for  reinstatement  to  MSgt  with
endorsements from the Squadron and Wing commanders, and a copy of  the
NJANG/HQ letter of denial.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a current member of the New  Jersey  ANG  (NJANG),  was
demoted from MSgt to TSgt effective  21  March  2005  for  Failure  to
Fulfill Noncommissioned Office responsibilities.   The  authority  for
the  demotion  action  was  found  in  ANGI  36-2503  and  Air   Force
Instruction (AFI) 36-2618, The Enlisted Force Structure.  On 13  March
2005,  he  received  a  letter  of  reprimand  (LOR)  for  making   an
unauthorized request to change a person’s login under false  pretenses
and using his position as a supervisor to have the login changed.  The
person whose email was to be accessed had  an  ongoing  EEO  complaint
underway.  He signed the LOR and indicated he did not desire to make a
statement in his behalf.  On 11 June 2005, he wrote to  the  HQ  NJANG
commander, through  his  Wing  Commander,  asking  that  his  rank  be
reinstated to MSgt.  His Squadron Commander provided an endorsement to
his  request  and  the  Wing  Commander  provided   a   statement   of
concurrence.  On 11 June  2005,  the  Chief  of  Staff  (COS),  NJANG,
returned the applicant’s request  for  reinstatement  without  action.
The COS noted the applicant’s new DOR as being 4 April 2005  and  also
noted the two-year TIG requirement levied  against  the  applicant  as
requirements stipulated in ANGI 36-2503.  Further, the COS noted there
was no authority to  merely  reinstate  rank  subsequent  to  demotion
action.

AIR FORCE EVALUATION:

In regards to the applicant’s claim he would have  requested  a  board
hearing had he known his DOR would have changed, DPFOC  contends  ANGI
36-2503 does not offer the opportunity for  those  demoted  to  appear
before a board.  The ANGI gives him a right to counsel and  the  right
to present his case to his commander,  both  of  which  were  offered.
Considering the fact that the actions he took that led to his demotion
are not in dispute and  the  penalty  is  not  inappropriate  for  the
offence, DPFOC recommends denial.

DPFOC’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
28 October 2005 for review and comment within 30  days.   As  of  this
date, no response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice.  After  careful  review  of  all  the
documentation  and  evidence  provided  we  are  of  the  opinion  the
applicant’s commander’s intended disciplinary action was to demote the
applicant to TSgt for a specific  time  period.   When  the  applicant
accepted the demotion as punishment, he did so  under  the  impression
from his commander that he would be reinstated  to  his  higher  grade
between six  months  and  a  year  later.   However,  it  appears  the
commander  was  not  aware  at  the  time  that  demotion  action,  by
regulation, levied a two-year Time in Service (TIS) and Time in  Grade
(TIG) requirement against the applicant.  It is apparent  to  us  from
the evidence of record that the commander had been misinformed on  the
demotion process and believed he had more flexibility than he actually
did.  In view of the above findings, we  recommend  the  applicant  be
promoted to the grade of master sergeant on the date, 4 October  2005,
six months from the effective date of his demotion.

4. Insufficient relevant evidence has been  presented  to  demonstrate
the existence of an error or injustice warranting favorable action  on
applicant’s request to have  his  date  of  rank  of  master  sergeant
restored to 23 October  2000.   Since  we  have  determined  that  the
agreement between he and his  commander  should  be  honored  and  the
applicant waived his right to a board hearing based on this agreement,
we find no basis to conclude that his original date of rank should  be
restored.  Therefore, this portion of his  request  is  not  favorable
considered.

5.  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 RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to  show  that  the  applicant  was
promoted to the Reserve grade of master sergeant with an  effective  a
date of rank of 4 October 2005.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 1 December 2005, under the provisions of AFI  36-
2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. James W. Russell, III, Member
      Mr. Joseph D. Yount, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Jul 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPFOC, dated 18 Oct 05.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Oct 05.




                                   RICHARD A. PETERSON
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC

[pic]
Office Of The Assistant Secretary



AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB MD 20762-7002



Dear Sergeant

      Your application to the Air Force Board for Correction of
Military Records, AFBCMR BC-2005-02552, has been finalized.

      The Board determined that the military records should be
corrected as set forth in the attached copy of a Memorandum for the
Chief of Staff, United States Air Force.  The office responsible for
making the correction will inform you when your records have been
changed.

      After correction, the records will be reviewed to determine if
you are entitled to any monetary benefits as a result of the
correction of records.  This determination is made by the Defense
Finance and Accounting Service (DFAS-DE), Denver, Colorado, and
involves the assembly and careful checking of finance records.  It may
also be necessary for the DFAS-DE to communicate directly with you to
obtain additional information to ensure the proper settlement of your
claim.  Because of the number and complexity of claims workload, you
should expect some delay.  We assure you, however, that every effort
will be made to conclude this matter at the earliest practical date.

                                   Sincerely



                                   RALPH J. PRETE
                                   Chief Examiner
                                   Air Force Board for Correction
                                   of Military Records

Attachment:
Record of Board Proceedings
                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC

[pic]
Office Of The Assistant Secretary



AFBCMR BC-2005-02552




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to, be corrected to show that the applicant was
promoted to the Reserve grade of master sergeant with an effective a
date of rank of 4 October 2005.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency