RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02142
            INDEX NUMBER:  131.00
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  14 Jan 08


_________________________________________________________________

APPLICANT REQUESTS THAT:

His promotion to staff sergeant be reinstated effective 1 Jan 06.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He met all criteria for promotion under the Air Force core values  and
according to the Air Force enlisted structure.

In support of  his  appeal,  applicant  submits  copies  of  paperwork
related to his nonrecommendation for promotion, a copy of a career job
reservation (CJR) approval, a copy of his enlisted performance  report
(EPR) rendered just prior to the promotion action, and  a  copy  of  a
recommendation for award.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active  duty  in  the  grade  of
senior airman (SrA).   The  applicant  was  tentatively  selected  for
promotion to the grade of  staff  sergeant  during  cycle  05E5.   His
promotion would have normally incremented on 1 Jan 06.  However, on 13
Dec 05, his commander deferred his promotion for  a  period  of  three
months and on 29 Mar  06  extended  the  deferral  for  another  three
months.  On 2 Jun 06, the commander nonrecommended the  applicant  for
promotion based on his observations of the applicant’s  behavior  over
the preceding year.  The commander indicated  he  concurred  with  the
applicant’s supervisors in that the  applicant  did  not  possess  the
necessary management skills and leadership abilities to be an  NCO  at
the time.  In a letter dated 14 Jun 06,  the  applicant  appealed  his
nonrecommendation for promotion to his squadron and group  commanders.
His Area Defense Counsel also submitted a letter in his behalf.  On 20
Jun 06, the squadron commander requested the group  commander  approve
reinstatement of the applicant’ promotion.  The group commander signed
a letter on 20 Jun  06  approving  reinstatement  of  the  applicant’s
promotion.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPWB recommends denial of the  applicant’s  request.   Requests
for reinstatement should not be  approved  solely  because  commanders
reverse decisions that originally rendered an airman ineligible.   The
commander’s request for reinstatement  of  the  applicant’s  promotion
provides no explanation/rationale justifying approval.

The complete evaluation is at Exhibit C.

In a letter, dated  3  Aug  06,  the  applicant’s  squadron  commander
explained his rationale for removing the applicant’s promotion and the
reason he requested it be reinstated.  The commander states his  first
sergeant gave him the incorrect impression the applicant could  appeal
his decision.  As part of his appeal package the applicant submitted a
letter from his Area  Defense  Counsel  (ADC).   The  Group  commander
reviewed the package and decided to grant the  appeal.   The  squadron
commander states he then took steps to get the  applicant’s  promotion
reinstated.  The commander indicates he was  subsequently  advised  by
AFPC/DPPPW he could  not  request  reinstatement  of  the  applicant’s
promotion.  He notified the applicant who then  submitted  his  AFBCMR
application.

The commander states he still believes the applicant does not  possess
the qualities necessary to be a  leader  or  NCO  and  stands  by  his
original nonrecommendation of the applicant for promotion.

The commander’s memorandum is at Exhibit D.

AFPC/JA recommends denial of the applicant’s request.  They agree with
AFPC/DPPPWB’s opinion regarding the conditions under which  promotions
may be reinstated, but state they also recognize  that  the  promotion
regulation permits reinstatement  in  other  generic  situations.   JA
notes  that  an  airman  or  his  immediate  commander   may   request
reinstatement for other reasons than  those  covered  by  AFPC/DPPPWB.
Such requests are forwarded by the Military Personnel Flight (MPF)  to
the individual’s wing commander.  Wing  commanders  or  Major  Command
(MajCOM) DPs may disapprove these  requests  and  discontinue  further
processing.   They  note  that  the  applicant’s  squadron  and  group
commanders sought to get the applicant’s  promotion  reinstated  under
this procedure.   JA  states  that  their  discussion  centers  around
whether the applicant was improperly denied reinstatement  under  this
provision of the regulation.

AFPC/JA states that even if the applicant’s  request  had  been  fully
processed to the approval authority, it would  almost  certainly  have
been denied as there is no compelling reason,  or  authority  in  this
case,  to  effectively  overturn  the   squadron   commander’s   prior
nonrecommendation decision.  AFPC/JA states that the applicant and his
attorney approach this issue as an appeal to a higher commander as  is
available in other types of actions.  However, AFI 36-2502  is  silent
on whether higher authorities may substitute their judgment  for  that
of the squadron commander in the absence of specific errors.  Had  the
Air Force intended  to  offer  those  individuals  nonrecommended  for
promotion the option of appealing their squadron commander’s  decision
to a group, or higher level commander, it most  certainly  could  have
done so.  AFPC/JA opines that the absence of such a procedure could be
construed to suggest the Air Force desires some measure of finality in
promotion nonrecommendation cases once squadron commanders  have  made
their decision.

AFPC/JA states that the squadron commander’s apparent inconsistency in
seeking to reinstate the applicant’s  promotion  only  18  days  after
making the  nonrecommendation  decision  must  be  understood  in  the
context of the influence his commander placed upon him ,  as  well  as
his  general  misunderstanding  of  the  rules  governing  appeals  in
promotion recommendation cases.  JA notes that the  commander  in  his
recent memorandum to  the  AFBCMR  states  “I  still  feel  that  [the
applicant] does not have the qualities necessary to be a leader or NCO
and stand by my original non-recommendation for promotion.”  JA opines
that  the  AFBCMR  should  give  strong  deference  to  the   squadron
commander’s long-standing concerns about the applicant’s  fitness  for
assuming higher rank and responsibility and let that decision stand.

The complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the advisory opinions, the applicant states  he  is
presenting information that has not been addressed.  He notes that  on
3 Nov 05, he completed Airman Leadership School, five  days  later  he
received an EPR with a rating of “promote.”  On   13 Dec  05,  only  a
month after he received his EPR, his  commander  initiated  the  first
promotion deferment action.  He considers  this  troubling  given  the
short time between the two actions.

In the second week of March, he asked his supervisor for feedback  and
if he would be promoted at the end of his  first  deferment.   He  was
told it looked as if he would be based on feedback from the commander.
 However, his previous supervisor had a talk with  his  “command”  and
opted for him to undergo  neuropsychology  tests.   In  a  meeting  he
though would be on  his  promotion  and  retraining  package,  he  was
shocked to learn it was for another deferment.  His commander told him
he would reevaluate his promotion when the results of his  tests  were
received.  He took  and  passed  all  the  tests.   He  states  he  is
performing more additional duties and responsibilities  than  the  new
SSgts in the unit and has successfully passed his seven level CDCs.

His First Sergeant  told  him  about  the  appeal  process,  which  he
forwarded through his ADC to the Group Commander.  The Group Commander
gave him a promotion reinstatement letter.

In further support of his appeal, applicant  provides  copies  of  the
promotion deferment letters and of the Neuropsychology tests.

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

_________________________________________________________________

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 primary basis for our conclusion that the applicant has  not  been
the victim of an error  or  injustice.   Additionally,  we  found  the
letter submitted by the commander that initiated the nonrecommendation
action to be especially compelling and do not find his  action  to  be
either 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-2006-
02142 in Executive Session on 20 September 2006, under the  provisions
of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Mr. Wallace T. Beard, Jr., Member
      Ms. Karen A. Holloman, Member

The following documentary evidence in Docket Number BC-2006-02142  was
considered:

    Exhibit A.  DD Form 149, dated 12 Jul 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPPWB, dated 24 Jul 06.
    Exhibit D.  Memorandum, 1WS/CC, dated 3 Aug 06.
    Exhibit E.  Memorandum, AFPC/JA, dated 10 Aug 06.
    Exhibit F.  Letter, SAF/MRBR, dated 18 Aug 06.
    Exhibit G.  Memorandum, Applicant, dated 22 Aug 06, w/atchs.




                                   MICHAEL J. NOVEL
                                   Panel Chair