RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-00183
                                       INDEX CODE:  131.00
      XXXXXXXXXXXXXXXXXXX               COUNSEL: NONE

                                             HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  23 July 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

His promotion sequence number (PSN) to the grade of  staff  sergeant  (SSgt)
(E-5), which would have incremented on  1  June  2005  for  cycle  04E5,  be
reinstated.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The punishment he received for violation of a no-contact order was based  on
false statements.

In support of his application, the applicant provides copies of  his  Letter
of Reprimand (LOR); Enlisted Performance Reports;  excerpts  of  transcribed
testimony; his rebuttals to his Unfavorable Information File (UIF) and  non-
recommendation  for  promotion;  request  for  reinstatement  of  PSN;   and
statements of support.

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

_________________________________________________________________

STATEMENT OF FACTS:

In August 2001, the applicant transferred from the Regular Marines Corps  to
the Regular Air Force.

On 5 February 2003, while serving  in  the  grade  of  SSgt,  the  applicant
received an LOR for dereliction of duty.  On 28 July  2003  he  received  an
Article 15 for sleeping on post.  His punishment consisted of  a  reprimand,
reduction in grade to SrA, and forfeiture of $912  pay  per  month  for  two
months.  Both portions of the punishment pertaining to  reduction  in  grade
and forfeiture of pay were suspended through 31 January  2004,  after  which
it would be remitted without further action, unless sooner vacated.

On 29 September 2003, the applicant received a vacation of  his  Article  15
punishment for wrongfully having sexual intercourse with  a  woman  not  his
wife.  His punishment consisted of reduction in grade  to  SrA  with  a  new
date of rank of 1 August 2003, and forfeiture of $250 pay per month for  two
months.

The applicant was selected for promotion to the  grade  of  SSgt  for  cycle
04E5 with a PSN of 10,448.5 which would increment on 1 June 2005.

On 10 May 2005, the applicant received an LOR for violation of a  no-contact
order.  On 26 May 2005, his commander  placed  the  applicant  on  the  Unit
Control Roster, non-recommended him for promotion to SSgt,  and  permanently
removed his PSN.

On 27 June 2005, following the applicant’s visit to the Inspector  General’s
(IG) Office, an investigation was initiated  to  determine  the  applicant’s
allegations that his commander abused his authority by the unreasonable  and
unjust issuance of an LOR to the applicant for  violation  of  a  no-contact
order on 10 May 2005;  that  his  commander  abused  his  authority  by  the
unreasonable and unjust placement of  the  applicant  on  the  Unit  Control
Roster on 26 May 2005; and that his commander abused his  authority  by  the
unreasonable and unjust non-recommendation for promotion to  SSgt  effective
1 June 2005.  The IG investigation  concluded  that  all  three  allegations
were unsubstantiated; however, found the  applicant’s  denial  of  promotion
may be unfair and not in the best interest of the Air Force.

On 16 September 2005, the applicant transferred to  the  Air  Force  Reserve
where he is currently serving in the grade of senior airman (SrA) (E-4).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial of the applicant’s request  to  reinstate  his
promotion  to  SSgt.   DPPPWB  states  the  applicant  was  considered   and
tentatively selected for promotion to SSgt during an October 2004  in-system
supplemental promotion process.  He received PSN 10,488.5 which  would  have
incremented on 1 June 2005; however, in May  2005  a  promotion  eligibility
status (PES) code  “N”  was  updated  in  the  system,  which  automatically
removed his line number.  PES code “N”  indicates  the  applicant  was  non-
recommended for promotion in accordance with AF Instruction  36-2502,  Table
1.1, Rule 9.

DPPPWB states the applicant’s case file reveals he was issued a  LOR,  dated
10  May  2005,  for  failure  to  obey  a  lawful  no-contact   order,   and
subsequently, an Unfavorable Information file (UIF)  was  established.   The
commander acted within his authority when  he  made  the  decision  to  non-
recommend the applicant for promotion.

The DPPPWB evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The Air Force Office of Primary  Responsibility  (OPR)  fails  to  mention
important evidence in this case.  His complaint is not  based  on  whether
the commander has the authority to issue an LOR, but  that  the  commander
issued an LOR when he was aware no evidence was presented to  confirm  the
applicant had violated the no-contact order.  When presented with evidence
to prove the applicant’s innocence, his commander chose not to accept  it.


The applicant’s rebuttal is at Exhibit E.

_________________________________________________________________

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 an error or an injustice.  We note the applicant’s  contentions
that he was treated unfairly and that his commander  abused  his  authority.
We also took note  of  the  IG  investigation  officer’s  opinion  that  the
applicant  suffered  unfair  treatment  resulting  in  a  trend  of   unfair
personnel  actions  to  include  his   non-recommendation   for   promotion.
Although  the  Report  of  Investigation  (ROI)  indicates  the  applicant’s
commander did not abuse his  authority  in  respect  to  any  of  the  three
allegations investigated; we note the applicant’s wing commander  determined
a Commander Directed Investigation (CDI) was warranted for  the  purpose  of
determining  if  the  applicant  should  remain  in  the  Air  Force  or  be
separated.  However, before  the  CDI  could  be  initiated,  the  applicant
indicated he wanted to separate from the Air Force and reunite with his  ex-
wife.  He conceded that if he received his stripe back,  he   would  not  be
able to separate  at  that  time,  nor  would  he  receive  the  substantial
severance/separation pay.  The applicant also made his intentions  known  to
the Inspector General’s office and even wanted to drop his  case.   However,
the wing commander pursued the  case  despite  the  applicant’s  request  in
order to determine what squadron-wide action  might  be  needed  that  could
affect others besides the applicant.  The record of  evidence  indicates  it
was the applicant’s decision to no longer pursue a  positive  resolution  to
his case as this  would  not  allow  him  to  pursue  his  personal  issues.
Subsequently, the applicant chose to separate without pursuing his  case  to
regain his stripe.  Since the applicant has not forward evidence to  dispute
his earlier election, the Board  finds  the  Air  Force  complied  with  the
applicant’s wishes and; therefore, finds he has not been the  victim  of  an
error or  injustice.   Accordingly,  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 issues 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 this application in  Executive
Session on 17 April 2007, under the provisions of AFI 36-2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Mr. Garry G. Sauner, Member
                 Ms. Rita J. Maldonado, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2007-00183:

    Exhibit A.  DD Form 149, dated 16 Jan 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPWB, dated 25 Jan 07.
    Exhibit D.  Letter, SAF/MRBR, dated 16 Feb 07.
    Exhibit E.  Applicant’s Rebuttal, dated 5 Mar 07.




                                  RICHARD A. PETERSON
                                  Panel Chair