RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-04015

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  He received all pay and allowances in the grade of first lieutenant, effective 28 May 2010 until 9 March 2012.  

2.  He not have to repay the United States government the unearned, pro-rata share of the cost of his United States Air Force Academy (USAFA) education.

3.  His separation program designator (SPD) code “JGB” (failure of selection for permanent promotion) be changed.  

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APPLICANT CONTENDS THAT:

1.  His commander issued him a Letter of Reprimand (LOR), referral Officer Performance Report (OPR), and a promotion propriety action (PPA) for his admitted misconduct.  His commander later terminated the Not Qualified for Promotion (NQP) action because it was not his intent to utilize it for a subsequent discharge action.  

2.  His subsequent NQP action was untimely and not initiated in accordance with Air Force Instruction (AFI) 36-2501, Officer Promotion and selective Continuation.  Specifically, on 22 November 2010, an early termination of his PPA was initiated and he was reinstated to his original date of promotion, 28 May 2010.  However, in August 2011, he was notified that the termination action was not legal and a recommendation was made to the Secretary of the Air Force (SecAF) to determine his NQP and immediate discharge.  He was not informed of this recommendation, verbally or in writing, before his promotion effective date in accordance with Air Force Instruction (AFI) 36-2501, Officer Promotions and Selective Continuation.  

3.  His PPA was administered as punishment and not for its intended purpose.  Specifically, his commander delayed his promotion to first lieutenant for six months to withhold his pay and not for gathering further evidence.  Once its improper use was discovered, the documentation was destroyed and recommendation was made to pursue NQP through the SecAF without any regards to timelines.  

4.  He was improperly discharged early causing him to incur an erroneous unearned, pro-rata share cost of his education at the USAFA.  Although, he does not wish to re-enter the military, he wants his debt to be expunged.  

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

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STATEMENT OF FACTS:

On 28 May 2008, the applicant was commissioned in the Regular Air Force.  

On 17 May 2010, an AF Form 4363, Record of Promotion Propriety Action, was initiated by the applicant’s commander, notifying him of his recommendation to delay the applicant’s 28 May 2010 promotion to first lieutenant (O-2) until 27 November 2010 due to his failure to meet exemplary conduct standards.  Specifically, for providing alcoholic beverages at a party where minors were present and his conduct towards a 16 year-old female.  

On 17 May 2010, the applicant acknowledged receipt of the PPA. 

On 26 May 2010, the applicant received a LOR for conduct in direct violation of Articles 133 and 134 of the Uniform Code of Military Justice (UCMJ).  Specifically, on two separation occasions in March 2010, he provided alcoholic beverages for consumption to several persons under the age of 21 years, in violation of Florida law.  In addition, his behavior towards a 16 year-old girl was in a manner unbecoming of an officer and a gentleman.  In addition, the commander notified the applicant of his intent to place the LOR in an unfavorable information file (UIF).  

On 26 May 2010, the applicant acknowledged receipt of the PPA action and, on 1 June 2010, elected to consult with a legal counsel and to submit a written statement.  

On 1 June 2010, the applicant was issued an AF Form 1058, Unfavorable Information File Action (UIF), indicating the commander’s intent to establish a UIF and attach his 26 May 2010 LOR.

On 1 June 2010, the commander decided to establish the UIF and file the LOR, and placed the applicant’s name on the control roster and prepare an officer performance report (OPR).  

On 3 June 2010, the applicant acknowledged receipt of the LOR and elected to submit the same response he provided for the PPA.  

On 3 June 2010, the applicant’s commander considered the applicant’s response and decided the LOR would remain in effect.  

On 8 June 2010, the PPA was found to be legally sufficient and the wing commander approved the promotion delay until 27 November 2010. 

On 11 June 2010, the applicant acknowledged the final decision of his promotion delay until 27 November 2010.  

On 29 June 2010, the applicant’s commander recommended that the wing commander not file the applicant’s LOR in his Officer Selection Record (OSR).  

On 23 July 2010, the applicant’s group commander concurred with the commander’s recommendation and forwarded it to the wing commander for his consideration.

On 4 November 2010, the applicant was issued a referral Officer Performance Report, indicating he did not meet the standards of professional qualities or of judgment and decisions.  

On 9 November 2010, the applicant responded to his referral OPR wherein he apologized for his indiscretions and accepted the consequences of his behavior.  

On 19 November 2010, an AF Form 4364, was initiated by the applicant’s commander notifying him of his recommendation of early termination of his promotion delay with his original date of promotion reinstated because of his good performance, attitude, and behavior prior to the incident for which he was punished and for the acceptance of responsibility for his actions.  

On 19 November 2010, the applicant acknowledged receipt of the action, elected not to consult with legal counsel and submitted a written statement.  

On 22 November 2010, the wing legal office found the early termination of the applicant’s promotion delay to be legally sufficient.

On 22 November 2010, the applicant’s wing commander recommended approval of the early termination of the applicant’s promotion deferral, which would result in the reinstatement of his promotion to first lieutenant (0-2), effective 28 May 2010.  

On 3 March 2011, USAF/JAA found the applicant’s promotion delay to be legally sufficient.

On 3 October 2011, AETC/CC was given an opportunity to provide a recommendation to the SECAF or to initiate NQP action, since the applicant was not on a promotion list.  

On 24 October 2011, AETC/CV initiated a NQP action based on the applicant’s misconduct.  

On 24 October 2011, the applicant was notified of the AETC/CV recommendation that he be found not qualified for promotion to the grade of first lieutenant and immediately separated from the Air Force.  The specific reasons for this recommendation were that the applicant provided alcoholic beverages on two separate occasions to high school students under the age of 21 years, and he pursued, though did not engage in, sexual intercourse with a 16 year-old girl.  Also, the applicant was advised that his promotion to first lieutenant was delayed pending final determination of the vice commander’s recommendation.  

On 1 November 2011, the applicant acknowledged receipt of the NQP notification and elected to submit matters in his behalf.  

On 4 November 2011, the applicant requested an extension to respond to his NQP action.  

On 15 November 2011, the applicant submitted matters in response to his NQP action.  In his response he asked for reconsideration, indicated his relationship with the 16 year-old girl was not in violation of Florida law, contending the NQP action was untimely, and his separation was not in the best interest of the Air Force because of his contracting skills.  

On 6 December 2011, AETC/CV acknowledged receipt of the matters submitted by the applicant and decided to forward the recommendation for approval or denial by SecAF.  

On 6 December 2011, the applicant acknowledged receipt of the AETC/CV notification.  

On 18 January 2012, AF/JAA found the applicant’s case to be legally sufficient to support the AETC/CV finding that the applicant was not qualified to be promoted to the next higher grade and that he should be administratively separated.  

On 24 February 2012, SecAF determined the applicant was not qualified under AFI 36-2501 for promotion to the grade of first lieutenant and directed that he be immediately discharged in accordance with AFI 36-3207, Separating Commissioned Officers, with an Honorable service characterization.  In addition, he was directed to repay the United States government the unearned, pro-rata share of the costs of his education at the USAFA.

On 9 March 2012, the applicant was honorably discharged, with a narrative reason for separation of “Non-Selection, Permanent Promotion,” and was issued an SPD code of “JGB” and RE code of “Not Applicable.”  He was authorized separation pay and credited with 3 years, 10 months, and 10 days of total active service.  

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AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial, indicating there is no evidence of an error or injustice.  The applicant contends he was improperly discharged early.  However, in accordance with AFI 36-3207, paragraph 3.5, SecAF considered the applicant’s poor decision regarding his involvement with minors and alcohol, as well as an incident involving a sixteen year-old female, and directed he be discharged.  The applicant was appropriately discharged on the basis of him being a threat to good order and discipline.  Therefore, he should not be credited with service for which he did not perform.   

A complete copy of the AFPC/DPSOR evaluation is at Exhibit C.

AFPC/DPSOO recommends denial of the applicant’s request to be reinstated to the grade of first lieutenant.  He contends that the NQP action taken against him was not in accordance with AFI 36-2501 because it took place grossly past the deadline.  However, in accordance with AFI 36-2501, when the preponderance of evidence shows an officer is not mentally, physically, morally, or professionally qualified to perform the duties of a higher grade, it is within the commander’s authority to question their promotion.  Although the applicant’s commander initiated a promotion delay and later decided to terminate the action, per 10 USC § 624, only SecAF can terminate a promotion delay.  The SecAF determines if an officer should be promoted when the requirements for exemplary conduct set forth in sections 3583, 5947, or 8583 of Title 10 have not been met.  An officer remains in a delayed status until the SecAF makes the final determination to promote on the original date of rank (DOR), adjust the DOR, or initiate removal action from a promotion list.  Since the applicant received a letter of reprimand (LOR) for his misconduct, was not on a promotion list, and had been in a delay status since 17 May 2010, the NQP action was properly initiated.  Air Force policy states that formal rules of evidence do not apply to a promotion propriety action.  In addition, there is no time line as to when the action should be initiated as long as it is prior to a promotion pin-on-date.  Since the warranted NQP action was initiated prior to the applicant’s pin-on-date and the termination action was not acted on by the SecAF, it was properly initiated and found to be legally sufficient. 

A complete copy of the AFPC/DPSOO evaluation is at Exhibit D.

AFPC/JA recommends denial, indicating there is no evidence of an error or injustice.  The applicant contends a PPA was used against him solely as a punishment as opposed to utilizing it for it intended purpose of gathering further evidence.  However, in accordance with AFI 36-2501, delaying a promotion to gather further evidence is but one of several bases to delay a promotion.  As a general proposition, promotion delay is proper when there is cause to believe that the officer has not met the requirement for exemplary conduct as set forth in 10 USC § 8583.  In this case, the applicant’s alleged misconduct would suffice as evidence of his failure to meet the requirement for exemplary conduct as required by law and Air Force directive.  Although he viewed the eventual NQP and discharge action as an improper punishment, these actions constituted proper administrative sanctions that were fully supported by the evidence of record.  The applicant further contends the NQP was untimely and without proper authority.  However, the applicant’s promotion was delayed by the initiating commander before the effective date of promotion.  When a reviewing commander initiates a promotion delay, it remains in effect until terminated by proper authority, which in this case is the SeCAF (or designee).  The SecAF’s approval of the NQP was not taken past any “deadline” because promotion delays do not terminate on their own through the mere passage of time.  His promotion was effectively delayed throughout the promotion propriety process.  Also, contrary to the applicant’s belief that the NQP and discharge actions were taken in contravention of his command’s intentions and without authority, AFI 36-2501 makes it clear that notwithstanding a commander’s recommendation, SecAF (or designee) may change or convert a promotion delay to another action.  In this regard, the applicant’s admitted misconduct clearly constituted behavior which fell far short of the exemplary standards of behavior required by law.  The action of SAF/MRB (SecAF’s designee) to find the applicant not qualified for promotion and discharge him immediately was necessary to maintain good order and discipline and was fully supported and proper.  Finally, the applicant’s recoupment action is warranted.  On 1 July 2004, the applicant signed an USAFA Form 0-205, Record of Acceptance, Obligation, Reimbursement, and Oath of Allegiance, indicating he agreed to reimburse the United States government for the percentage of his educational costs equal to the period of active duty that he voluntarily or because of misconduct failed to complete.  As a result, the applicant had active duty service commitment until 27 May 2013, which he did not complete due to his misconduct.

A complete copy of the AFPC/JA evaluation is at Exhibit E.  
  
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 28 May 2013 for review and comment within 30 days (Exhibit F).  As of this date, this office has received no response.  

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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 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 the applicant has not been the victim of an error or injustice.  The separation program designator (SPD) code of “JGB” was appropriate for the applicant’s non-selection for promotion separation and required in accordance with the governing instruction.  While the applicant alleges an IG complaint was submitted, he failed to provide the final IG Report of Investigation (ROI) or any other documentation from a proper investigating authority.  Therefore, in the absence of evidence to the contrary, we find no 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.  

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2012-04015 in Executive Session on 22 October 2013, under the provisions of AFI 36-2603:

	Chair
	Member
	Member




The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-04015 was considered:

     Exhibit A.  DD Form 149, dated 19 August 2012, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPSOR, dated 22 October 2012.
     Exhibit D.  Letter, AFPC/DPSOO, dated 13 December 2012.
     Exhibit E.  Letter, AFPC/JA, dated 9 January 2013, w/atchs.
     Exhibit F.  Letter, SAF/MRBR, dated 28 May 2013.




                                   
                                   Chair

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