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AF | BCMR | CY2007 | BC-2007-01013
Original file (BC-2007-01013.doc) Auto-classification: Approved

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01013
            INDEX CODE:  102.07

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His promotion to  technical  sergeant  (TSgt)  be  reinstated  and  be
effective on the date of the injustice along with any applicable  back
pay, both active and retired.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His promotion to TSgt was held in abeyance beyond  12  months  without
the concurrence of the wing commander (WG/CC) which was  in  violation
of Air Force Instruction (AFI) 36-2502.

In support of his  appeal,  the  applicant  provided  a  copy  of  the
findings of an Inspector General (IG) investigation initiated  by  the
applicant.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was  tentatively  selected  for  promotion  to  TSgt  during
promotion cycle 04E5.  He received a promotion sequence number of  60,
which would have incremented 1 August 2004.  The promotion was held in
abeyance however, effective  30  November  2003  for  his  failure  to
maintain weight standards.  On  10  February  2006,  he  filed  an  IG
complaint concerning allegations of abuse of authority and allegations
that his promotion was mishandled.  Of the four allegations,  one  was
substantiated by  the  IG  findings.   Specifically,  the  applicant’s
commander did not obtain WG/CC approval to withhold his promotion past
12 months in accordance with AFI 36-2502.  At the 12 month point,  his
commander had three options: Obtain WG/CC concurrence  to  extend  the
promotion withhold, recommend promotion, or  non-recommend  promotion.
Applicant was ineligible for promotion consideration during the  three
previous promotion cycles of 01E6 – 03E6 because  of  his  failure  to
maintain weight standards.   He  also  received  a  referral  Enlisted
Performance Report (EPR) for the period 2 July  2001  through  1  July
2002  for  not  maintaining  weight  standards,  which  is   also   an
eligibility condition.  He was honorably  retired  effective  1  April
2006 in the grade of Staff Sergeant (SSgt).

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPWB recommends denial.  DPPPWB obtained an AFPC/JA  opinion
regarding the IG’s substantiated allegation of abuse of authority  and
whether or not it constituted  an  error  or  injustice.   JA  states,
compared to a non-recommendation action, withholding a promotion is  a
more advantageous promotion propriety action for  an  airman.   Airmen
whose promotions are withheld and then  are  subsequently  recommended
for promotion receive their original  date  of  rank  (DOR).   A  non-
recommend voids the selection for promotion and requires the airman to
be selected again.  Therefore,  by  extending  the  withhold  to  over
12 months it appears the commander acted in the best interest  of  the
applicant by potentially preserving his eligibility to  his  promotion
and associated back pay.  While  commanders  are  provided  reasonable
time to gather facts, they cannot delay airman’s promotions by placing
them in withhold status pending improved behavior  or  performance  by
the airmen.  If the applicant did not meet standards and was not ready
for promotion, the  commander  should  have  non-recommended  him  for
promotion.  There is no evidence the commander  ever  recommended  the
applicant for promotion.  According to  AFPC/JA,  the  nature  of  the
abuse of authority is  not  one  that  merits  the  relief  requested.
DPPPWB states an airman is eligible for promotion if  recommended,  in
writing, by the promotion authority.  Since he retired in the grade of
SSgt, DPPPWB assumes he was never recommended for promotion.

DPPPWB’s complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
27 July 2007 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.   An  Air  Force  IG  investigation
substantiated an allegation that the  applicant’s  commander  withheld
his promotion to TSgt beyond the 12 months  allowed  without  approval
from the wing commander.  We note his referral EPR for not meeting  or
maintaining weight standards; however, virtually every  other  EPR  in
his records, particularly those written during the period in question,
indicate he was meeting Air Force standards and he  was  either  ready
for or recommended for immediate promotion.  By allowing his promotion
withhold to languish without apparent action being taken otherwise the
Air Force failed to adhere to its  own  promotion  directives  as  set
forth in AFI 36-2502.  As a result, an error was created that we  feel
must be corrected in favor of the applicant.  Therefore, we  recommend
that the records be corrected as indicated below.

______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that he was promoted to the
grade of technical sergeant effective and with a date  of  rank  of  1
December 2004.

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2007-01013 in  Executive  Session  on  5  September  2007,  under  the
provisions of AFI 36-2603:

      Mr. James W. Russell III, Panel Chair
      Ms. Jan Mulligan, Member
      Ms. Glenda H. Scheiner, Member

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

    Exhibit A.  DD Form 149, dated 16 Mar 07, w/atch.
    Exhibit B.  Letter, AFPC/DPPPWB, dated 19 Jul 07.
    Exhibit C.  Letter, SAF/MRBR, dated 27 Jul 07.




                                   JAMES W. RUSSELL III
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


[pic]
Office Of The Assistant Secretary

AFBCMR BC-2007-01013




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 APPLICANT, be corrected to show that he was promoted
to the grade of technical sergeant effective and with a date of rank
of 1 December 2004.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency


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