RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00872
            INDEX CODE:  112.02
            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY COMPLETION DATE:  22 OCTOBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

His administrative demotion to Staff Sergeant (SSgt) be revoked and that  he
be retired in the grade of Technical Sergeant (TSgt).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was demoted to staff sergeant (SSgt)  less  than  two  years  before  his
retirement.  He was a “Whistleblower.”   He  worked  through  his  chain  of
command for several years attempting to correct unsafe aircraft  maintenance
practices.  He wrote a letter  to  his  flight  chief  that  was  degrading,
insubordinate and disrespectful.  He  received  an  administrative  demotion
which gave him no legal avenues to challenge.   If  he  were  demoted  under
Article 15 action, he would have asked for a court-martial and the  contents
of his “Whistleblower” complaint would have  been  revealed.   The  contents
would have been embarrassing to his wing because of his attempts to  resolve
the issue at the lower level.  After his  demotion,  his  continued  devoted
service resulted in his section receiving a zero defect during their ORI.

While preparing for retirement, he formally requested to be retired  in  the
grade of technical sergeant (TSgt).   His  request  was  accepted;  however,
with a reinstatement date of  May  13,  2013.   His  demotion  was  a  great
embarrassment during his retirement and he has  lost  thousands  of  dollars
over the past five years.  He gave his heart and soul to his service and  is
now a disabled veteran.

In support of the application, the applicant submits his personal  statement
and a copy of his grade determination notice.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 27 Nov 01, the applicant was notified by his commander of his  intent  to
recommend he be administratively demoted  IAW  AFI  36-2503,  Administrative
Demotion of Airmen, paragraphs 3.3, 7.1, and 7.4 for Failure to Fulfill  NCO
Responsibilities.  His reasons for this action were as follows:

      a.  On 14 Oct 99, the applicant transmitted pornographic  material  to
a government electronic mail account.  For  this  incident,  he  received  a
letter of reprimand (LOR) and an  unfavorable  information  file  (UIF)  was
established.  He  also  received  a  referral  Enlisted  Performance  Report
(EPR).

       b.  On  12  Feb  01,  he  submitted  a  letter   concerning   various
maintenance discrepancies without using his chain of  command.   His  claims
were  not  substantiated;  nevertheless,   he   submitted   another   letter
disagreeing with the findings; again, without using his  chain  of  command.
In addition,  he  threatened  to  forward  his  complaint  to  the  National
Transportation Safety Board, The Washington Post, and the New York Times.

      c.  On 19 Mar 01, he delivered a letter which claimed he would not  be
reporting “any problems of any nature” to his flight level supervisor.   For
this offense, he received a Letter of Counseling (LOC).  In response to  the
LOC, among  other  things,  he  threatened  to  take  his  concerns  to  the
Department of Defense and Department of the Air Force headquarters and  file
charges against anyone who issued him an unlawful order.

      d.  On 20 Mar 01, he wrote a  letter  to  a  senior  officer  alleging
instances of maintenance malpractice bypassing his chain of command.

      e.  On 2 May 01, he attempted to circumvent his chain of command  when
he improperly called a senior officer  to  report  a  perceived  maintenance
malpractice.  For this incident, he received an LOR.   In  his  response  to
the LOR, he stated that he “would do exactly the same things.”

      f.  On 10 May 01, he wrote a memo alleging his supervisor  had  issued
him an unlawful order when he ordered him to use his chain of command.

      g.  On 29  Oct  01,  he  sent  a  memorandum  to  a  CMSgt  containing
disparaging comments concerning his integrity and character.

On 17 Dec 01, the staff judge advocate reviewed the case file and  found  it
legally sufficient to support the applicant’s demotion.  On 4  Jan  02,  the
convening authority directed the applicant be demoted to the rank of SSgt.

The applicant was demoted to the grade of SSgt with  an  effective  date  of
rank of 4 Jan 02.
On 1 June 2003, the applicant was honorably retired in the  grade  of  SSgt.
His narrative reason for separation is listed as Maximum Service or Time  in
Grade.  He served 20 years and 13 days on active duty.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate offices of the Air Force at Exhibits C and D.
_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRRP recommends denial.  DPPRRP states in a Special Order dated  9
Jan 02, the applicant was demoted from the permanent grade of  TSgt  to  the
permanent grade of SSgt effective and with a date of rank  of  4  Jan  2002,
for “failure to keep fit [sic].”  On 23 Jan 02, the applicant was  permitted
to extend his enlistment from 1 Mar 03 to  1  Jun  03  to  qualify  him  for
retirement in the grade of SSgt.  His High Year Tenure  (HYT)  date  in  the
grade of SSgt was 18 May 03.  In accordance with Air Force policy,  HYT  for
SSgt is 20 years.  DPPRRP affirms there is no provision in law to  allow  an
enlisted member to be retired in any higher grade than that which  he  holds
on the date of his retirement.

DPPRRP states the reason given for demotion on Special  Order  (SO)  AA-001,
“failure to keep fit,” differs from that of the rater on  the  EPR  for  the
period 11 Mar 01 thru 10 Mar 02,”  repeated  disobedience.”   The  rater,  a
MSgt, and the additional rater, a SMSgt, may have not known that the  reason
for the applicant’s demotion was “failure to keep fit”  because,  under  AFI
36-2503, para 2.1, only  a  group  commander  or  equivalent  commander  may
demote members in the grade of MSgt and  below.   DPPRRP  concludes  in  the
absence of any other evidence, the reason for the demotion given on  the  SO
takes precedence and because EPRs  also  indicate  that  the  applicant  was
having difficulty meeting fitness standards.

The complete DPPRRP evaluation, with attachments, is at Exhibit C.

HQ AFPC/JA recommends denial.  JA states the  Whistleblower  Protection  Act
and implementing regulations go further in  safeguarding  those  individuals
who make “protected  communications”  to  certain  officials.   A  protected
communication is one in which a  member  communicates  information  that  he
reasonably believes evidences a violation of law  or  regulation,  including
mismanagement, an abuse of authority, or a substantial and  specific  danger
to public health or safety.  Reprisal is prohibited against  an  Airman  who
makes a protected communication to his commander.  After a  thorough  review
of the applicant’s  personnel  records  and  the  information  submitted  in
support  of  his  application,  there  is  no  evidence   of   a   protected
communication made by the applicant.   Until  now,  the  applicant  did  not
assert any sort of justification to  his  misconduct  or  concern  regarding
aircraft maintenance practices.

JA notes the procedural due process afforded under the  demotion  regulation
includes notice, an opportunity to consult legal counsel, an opportunity  to
respond and appellate review.  In this case, the  basis  used  for  demotion
was failure to keep fit based on his progress  in  October  2001.   Although
the applicant  now  alleges  the  demotion  was  wrongful,  he  presents  no
evidence that the basis for demotion was erroneous or unjust.  Based on  his
disciplinary history, specifically the use of government resources  to  send
pornographic  materials,  a  demotion  would  be  measured  and   reasonable
response  to  continued  disciplinary  infractions  or   failure   to   meet
standards.

The complete JA evaluation is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response dated 19 May  07,  the  applicant  reiterates  many  of  his
earlier  comments  and  states  he  has  copies  of  all   the   surrounding
documentation.  He was told if he contested his referral EPR that  he  would
receive another demotion.  He was on the Weight  Management  Program  (WMP),
but was taken off after he made progress.  His weight  gain  was  caused  by
medication.  His doctor wrote and explained this to  his  commander  and  he
was waived from the program.  After  he  became  a  “Whistleblower”  he  was
placed back on the WMP.  He was eventually removed from the program  and  he
never failed a fitness test.

He used his chain of command but when it became  obvious  that  no  one  was
going to correct the problems, he  went  up  the  chain.   He  notified  his
supervisors in writing that he was going over their  heads.   He  was  given
orders to falsify aircraft documents which he  refused.   He  requested  and
received character reference letters from everyone in his squadron.

The applicant’s complete submission 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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice.  We note the applicant's allegations  of
reprisal activity were investigated by his Major Command  Inspector  General
(IG), but not substantiated, and was concurred with by  both  the  Secretary
of the Air Force IG and Department of Defense IG.  After our review  of  the
complete evidence of record, we also agree the applicant has  not  been  the
victim of reprisal.  Consequently, we find no  error  or  injustice  in  the
applicant’s  demotion   from   technical   sergeant   to   staff   sergeant.
Additionally, we are not persuaded the applicant should be restored  to  his
former grade prior to his advancement  on  the  retired  list  in  2013,  as
determined by the Secretary of the Air Force Personnel Council.   Therefore,
based on the aforementioned, we  find  no  basis  upon  which  to  favorably
consider 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  AFBCMR  BC-2007-00872  in
Executive Session on 13 Sep 07, under the provisions of AFI 36-2603:

      Ms. Patricia J. Zarodkiewicz, Vice Chair
            Ms. Patricia R. Collins, Member
      Mr. Mark J. Novitski, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 14 Mar 07, w/atch.
      Exhibit B.  Applicant’s Master Personnel Records.
      Exhibit C.  Letter, HQ AFPC/DPPRRP dated 5 Apr 07 w/atchs.
      Exhibit D.  Letter, HQ AFPC/JA, dated 27 Apr 07
      Exhibit E.  Letter, SAF/MRBR, dated 4 May 07.
      Exhibit F.  Letter, Applicant, dated 19 May 07



                                   PATRICIA J. ZARODKIEWICZ
                                   Vice Chair