RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-03737
            INDEX NUMBER:  131.05
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  5 Jun 08


_________________________________________________________________

APPLICANT REQUESTS THAT:

His date of rank to the grade of staff sergeant (SSgt) be changed from
1 Oct 06 to 1 Mar 05.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The two reasons his squadron commander used as a basis to nonrecommend
him for promotion to  SSgt  were  invalidated  by  the  DoD  Inspector
General (IG) after the IG complaint he filed was investigated.   On  5
Jan 05, his squadron commander nonrecommended him for promotion to the
grade of SSgt based on him having  a  failing  score  on  his  fitness
assessment and being involved in an  alcohol  related  incident  while
attending Airman Leadership School.  The IG  investigation  determined
that his marginal fitness score was not failing, per AFI  10-248,  and
that the alcohol related incident was not documented  or  referred  to
the Alcohol and Drug Abuse Prevention and Treatment program.

In support of his appeal the  applicant  submits  a  copy  of  the  IG
response to his complaint indicating  that  his  commander  improperly
nonrecommended him for promotion and a redacted copy of the IG  Report
of Investigation.

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 SSgt
with a DOR and effective date of 1 Oct 06.  The applicant  tested  and
was tentatively selected for promotion to the  grade  of  SSgt  during
promotion cycle 04E5.  He received promotion sequence number 7186  and
would have been promoted effective 1 Mar 05.  However, on, or about, 5
Jan 05, the applicant’s commander  nonrecommended  him  for  promotion
based on his failure to pass the fitness test based on scoring in  the
marginal category and his involvement in an alcohol  related  incident
at a civic event while attending ALS.

On 21 Jan 05, applicant filed a complaint with the Wing IG  consisting
of five allegations with results as indicated:

        a.  That  his  squadron  commander  reprised  against  him  by
maintaining  a  nonrecommendation  for  promotion  on  20  Jan  05  in
violation of Title 10,  U.S.C. 1034 (Not substantiated).

        b.  That his squadron commander improperly nonrecommended  him
for promotion on 5 Jan 05 in violation of AFI 36-2502 (Substantiated).

        c.  That his rater abused her  authority  by  downgrading  the
standards block on the front of his EPR, dated 1 Sep 04, in  violation
of AFI 36-2406 (Not Substantiated).

        d.  That his flight chief abused his  authority  by  endorsing
his EPR, dated 1 Sep 04, as the additional rater in violation  of  AFI
36-2406 (Not Substantiated).

        e.  That the squadron fitness program monitor failed to notify
him of his PT test coming due in Sep 04 in  violation  of  AFI  10-248
(Not Substantiated).

On 4 May  05,  applicant  was  offered  nonjudicial  punishment  under
Article 15 for the following alleged offenses:

        a.  Two instances of being derelict in the performance of  his
duties by willfully failing  to  refrain  from  using  his  government
travel card for personal use in violation of Article 92, Uniform  Code
of Military Justice (UCMJ).

        b.  Two instances of dishonorably  failing  to  pay  debts  in
violation of Article 134, UCMJ.

On 9 May 05, the applicant indicated he had  consulted  a  lawyer  and
accepted nonjudicial punishment proceedings.  The applicant attached a
written presentation.  On 10 May, 05,  the  commander  determined  the
applicant had committed one  or  more  of  the  offenses  alleged  and
imposed punishment consisting of suspended reduction to the  grade  of
airman first class, forfeiture of  $500.00  pay  with  forfeitures  in
excess of $100.00  suspended, 14 days extra  duty,  and  a  reprimand.
The applicant did not appeal.

The applicant was selected for promotion to the grade of  SSgt  during
cycle 06E5 and was promoted effective 1 Oct 06.

A resume of the applicant’s last seven  enlisted  performance  reports
(EPRs_ follows:

      Closeout Date                     Overall Rating

        15 Apr 02                            5
        15 Apr 03                            5
        01 Sep 03                            5
       *01 Sep 04                            3
        11 Sep 05                            4
        11 Sep 06                            5
        15 Jan 07                            5

*EPR subject of IG complaint.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial of the applicant’s request.

Nonrecommendation for  promotion  is  an  ineligibility  condition  in
accordance with AFI 36-2502, Table 1.1, Rule 9.  Commanders  have  the
authority to nonrecommend members for promotion who they feel are  not
ready to assume the duties and responsibilities  of  the  next  higher
rank.  The applicant’s  commander  made  his  decision  based  on  the
incidents cited before the applicant filed his complaint with the  IG;
therefore, it was not reprisal.  Although the IG report  cites  errors
with the administrative portion of the nonrecommendation letter, i.e.,
no specific promotion  cycle,  this  does  not  negate  the  fact  the
commander  felt  the  applicant  was   not   ready   to   assume   the
responsibilities of an NCO.  The IG report does  state  the  commander
was inconsistent with  his  decision  concerning  similar  situations.
However, the report compares the applicant’s situation to  those  with
either an alcohol related incident or PT failure, not both.

The complete evaluation is at Exhibit C.

AFPC/JA also recommends denial of the applicant’s requests.

The  significance  of  not  including  the  promotion  cycle  in   the
applicant’s notification memorandum is negligible.   The  notification
memorandum includes reasons, dates, occurrences, and duration  of  the
action.  Written nonrecommendations are not required unless the Airman
is  unfit  to  perform  the  duties  of  the  grade  due  to  physical
disability.  Nonrecommendations for  those  in  the  grade  of  senior
airman and above are for  a  particular  cycle.   In  this  case,  the
commander addressed concerns triggered by the applicant’s  performance
and conduct when he nonrecommended the applicant for  promotion.   The
applicant was informed in writing and the  notification  included  the
adverse information.  The ultimate finding by the USAFE  IG  was  that
the notification did not cite the promotion cycle date.

Regarding the allegation substantiated by the  IG,  the  investigating
officer concluded  the  commander  nonrecommended  the  applicant  for
“unsubstantiated reasons” and violated AFI 36-2502,  Table  1.1.   The
findings were reviewed by the USAFE IG.  According  to  the  USAFE  IG
addendum to the  case  file,  the  “evidence  and  testimony  gathered
clearly showed”  the  commander  had  “ample  adverse  information  to
document in the letter” and that AFI 36-2502, Table 1.1  was  properly
applied.  In other words, the  IO’s  finding  was  wrong  because  the
nonrecommendation was supported by ample adverse information.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, applicant states he feels that the recommendation  by
AFPC/DPPPWB “does not sufficiently address  a  couple  of  the  issues
observed in the IG report.”

The applicant states that the two reasons cited by his  commander  for
denying his promotion were not  mentioned  in  DPPPWB’s  letter.   The
applicant states that his marginal score on  file  was  cited  as  not
meeting Air  force  standards.   However,  according  to  AFI  10-248,
Paragraph 3.1, a composite score of 70 percent represents the  minimum
accepted health, fitness, and readiness levels.  The applicant  states
he had  a  passing  score  of  71.50  on  file  at  the  time  of  the
nonrecommendation.   Additionally,  the  applicant  states  that   the
“mandatory fitness program” referred to in the letter was non-existent
as it was for personnel identified in the poor fitness category.

The applicant discusses the incident where he was asked to  leave  the
Harlem Globetrotters event  because  of  smelling  like  alcohol.   He
states the incident occurred nine days prior to his squadron  and  ALS
instructors  being  notified.   Further  the  ALS  instructor   openly
admitted he had never briefed  the  class  about  alcohol  consumption
prior to a volunteer event.  The ALS instructor stated he would  brief
all future classes to prevent such an occurrence.  The ALS  instructor
advised him that his initial reaction was  to  release  the  applicant
from training, but after evaluating the situation and event,  and  his
not having briefed the class, it would be unfair to hold him liable or
responsible.  The applicant states that with there being no  standards
established, verbally or written, considering his alcohol  consumption
as “poor judgment” can only be based on personal  opinion  instead  of
his having blatant disregard of standards.  The  applicant  states  he
still cannot understand how nine days passed before any mention of the
event surfaced.  He states the severity of the actions taken  are  not
justified due to the lack of urgency in notification procedures.

The applicant states that the Article 15 he received in May 05 has  no
bearing on the evidence presented and is in  no  way  related  to  the
nonrecommendation for promotion.  The nonjudicial  punishment  was  an
isolated incident which occurred well after the nonrecommendation  for
promotion.  His date of rank would have been 1 Mar  05  had  the  non-
recommendation  not  been  presented.   The  applicant  states  it  is
confusing and irresponsible for the Article 15 to be referred to  when
the events discussed in the IG investigation  occurred  four  to  five
months  prior.   The  applicant  states  that  at  the  time  of   the
nonrecommendation, his personal information file did not  contain  any
documented adverse information.  His record was impeccable with  three
consistent “5” EPRs.

The applicant’s complete response 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.   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-
03737 in Executive Session on 4 April 2007 under the provisions of AFI
36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Renee M. Collier, Member
      Ms. Judith B. Oliva, Member

The following documentary evidence was considered for Docket Number BC-
2006-03737:

    Exhibit A.  DD Form 149, dated 19 Oct 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPPWB, dated 18 Dec 06.
    Exhibit D.  Memorandum, AFPC/JA, dated 9 Feb 07, w/atch.
    Exhibit E.  Letter, SAF/MRBR, dated 9 Feb 07.
    Exhibit F.  Memorandum, Applicant, dated 27 Feb 07




                                   THOMAS S. MARKIEWICZ
                                   Chair