RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-02419
		COUNSEL:  
		HEARING DESIRED:  YES

________________________________________________________________

THE APPLICANT REQUESTS THAT:

1.  Any and all references to his demotion action to the grade 
of Senior Master Sergeant (SMSgt), to include all referral 
Enlisted Performance Reports (EPRs), denial of reenlistment and 
any unsubstantiated allegations that formed their bases be 
removed.

2.  His promotion to the grade of Chief Master Sergeant (CMSgt) 
be fully restored with the original Date of Rank (DOR) and 
effective date of 1 Sep 05.

________________________________________________________________

THE APPLICANT CONTENDS THAT:

The demotion action taken by the 22nd Air Force Commander 
(22nd AF/CC) was erroneous, deficient and unjust.

The demotion authority improperly used the demotion process to 
address allegations of misconduct, incorrectly cited the wrong 
Air Force directive, and did not contain all of the specific 
reasons for the proposed action or a complete summary of all 
supporting facts, as required under Air Force Instruction.

The 22nd AF/CC did not have the legal authority to demote a 
CMSgt.  No documentation was provided to establish delegation of 
authority from the Air Force Reserve Command, Vice Commander 
(AFRC/CV) to the Numbered Air Force Commander.

The demotion action was an arbitrary and capricious command 
action and subject to unlawful command influence as in United 
States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006).

He requested a personal appearance during the demotion process 
in accordance with Air Force policy; however, he did not receive 
one. He was never given a copy of the full administrative 
record.

The bases for his denial of reenlistment were substantially 
identical to those cited in support of the demotion action; both 
are false and took place between 2005 and 2008. 

In support of his appeal, the applicant provides a brief from 
counsel, copies of a Letter of Counseling (LOC), dated 8 May 07, 
with rebuttal; Letter of Admonishment (LOA), dated 11 Sep 07, 
with attachments; Letter of Reprimand (LOR), dated 5 Dec 07 and 
31 May 08, with rebuttals; the Notification of Demotion, dated 
9 Jun 09; appeal of the demotion action sent to the AFRC 
Commander (AFRC/CC); demotion action, dated 6 Jan 10, 
acknowledged on 18 May 10; award certificates; Enlisted 
Performance Reports (EPRs); civilian appraisals; two Commander 
Directed Investigations (CDIs), Air Force Office of Special 
Investigation (AFOSI) report; congressional inquiry; character 
reference letters, and various other documents associated with 
his requests.

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

________________________________________________________________

STATEMENT OF FACTS:

On 17 May 04, the applicant reenlisted for a period of six years 
in the grade of SMSgt.  On 1 Sep 05, he was promoted to the 
grade of CMSgt.

According to the AFRC/IG report, dated 1 Dec 08, the IG 
conducted an investigation into allegations that the applicant 
had reprised against other members of his unit.  The following 
allegations were filed:  

        On 12 Jun 08, the applicant restricted the Senior 
Noncommissioned Officer’s (SNCO’s) access to the squadron flying 
schedule in reprisal for making a protected communication, in 
violation 10 U.S.C. § 1034, as implemented by AFI 90-301, 
Inspector General Complaints Resolution.  Finding:  NOT 
SUBSTANTIATED.

	  On 28 Aug 08, the applicant issued a downgraded EPR to a 
SNCO in reprisal for making protected communication in violation 
of 10 U.S.C. § 1034, as implemented by AFI 90-301, Inspector 
General Complaints Resolution.  Finding:  SUBSTANTIATED.

According to an AFRC/JA letter, dated 18 Feb 09, a CDI was 
initiated after a second congressional inquiry raised 
allegations of wrongdoing against the applicant.  A list of 
allegations reflects the applicant (1) altered civilian time 
cards and military pay cards between Dec 06 – Aug 07; (2) 
engaged in unprofessional conduct and inappropriate behavior by 
engaging in inappropriate personal conduct in his office; (3) 
engaged in unprofessional conduct and inappropriate behavior as 
the Flight Engineer Supervisor after a subordinate witnessed 
inappropriate personal conduct; (4) engaged in unprofessional 
conduct and inappropriate behavior by making inappropriate 
disclosure of a member’s private medical information from Sep – 
Oct 06; (5) engaged in unprofessional conduct and inappropriate 
behavior by inappropriately recording conversations with unit 
members without their knowledge or consent.  All allegations 
were substantiated.  JA stated that the investigation complied 
with all applicable legal and administrative requirements and 
there were no errors or legal irregularities.  

In a letter, dated 9 Jun 09, the 514th Operations Group Commander 
(514thOG/CC) notified the applicant that he was recommending to 
the AFRC Commander (AFRC/CC) that he be demoted .  The basis for 
the demotion action was his failure to fulfill NCO 
responsibilities.  

According to his EPR, closing 9 Jul 09, the applicant received a 
referral EPR; with a performance assessment of “Does Not Meet 
Standards” in Section III, Item 6.  There were also comments 
pertaining to the applicant’s failure to assemble and lead a 
cohesive section which severely impacted squadron morale.

In a letter, dated 5 Oct 09, the 22nd Assistant Staff Judge 
Advocate (SJA) found that a legal basis existed to authorize the 
proposed demotion action.  The basis for this demotion action 
was a violation of AFI 36-2503, paragraph 17.2 (dated 20 Jul 
94), Failure to Fulfill NCO Responsibilities.  The Assistant SJA 
noted that the actions substantiated in the IG Record of 
Investigation (ROI) and AFRC/CV CDI on the part of the applicant 
did not meet the standards expected of NCOs and opined that the 
proposed demotion action was authorized under the facts of the 
case.

According to Special Order AA-003, dated 26 Mar 10, the 
applicant was demoted to the grade of SMSgt, with an effective 
date and DOR of 6 Jan 10, in accordance with AFI 36-2503, para 
17.2.  

According to an AF Form 418, Selective Reenlistment Program 
Consideration, on 30 Apr 10, the applicant’s commander non-
selected him for reenlistment based on a pattern of disciplinary 
infractions, substandard attitude, performance and leadership 
which were inconsistent with the standards expected of an NCO.  

On 18 May 10, the applicant acknowledged receipt of the demotion 
action.  On 17 Aug 10, the applicant submitted an appeal to the 
AFRC/CC.  

According to a letter, dated 7 Aug 10, the applicant submitted 
an Article 138 complaint alleging that his demotion to the grade 
of SMSgt was arbitrary and capricious.  The 514th OG/CC 
responded, by letter, dated 22 Oct 10, stating his complaint was 
untimely because it was not submitted within 180 days of the 
demotion action.  The commander advised the applicant that his 
complaint was denied because there was another complaint channel 
available to challenge any wrongs the commander may have 
committed during his demotion action.  The letter also advised 
that such complaints were not normally reviewed under Article 
138.  He was further advised that he had fully and vigorously 
exercised his procedural rights to challenge the commander’s 
decision to demote him and the decision was fully reviewed and 
upheld through the procedures and appellate process of AFI 36-
2503.

According to a 514th Force Support Squadron (514th FSS) letter, 
dated 13 Aug 10, the applicant met a reenlistment appeal board 
and the board recommended the applicant be allowed to reenlist.  
On 24 Sep 10, the 514th Air Mobility Wing Commander (514th AMW/CC) 
denied his appeal.

In a letter, dated 11 Jul 11, the Secretary of the Air Force 
Personnel Council (SAFPC) found the applicant did not serve 
satisfactorily in any higher grade than SMSgt and stated he 
would not be advanced on the Retired Reserve List under the 
provisions of Air Force Instruction 36-3209, Separation and 
Retirement Procedures for Air National Guard and Air Force 
Reserve Members, para 5.14.8.

According to Reserve Order EK-5771, dated 31 Aug 11, on 5 Jan 
12, the applicant was retired in the grade of SMSgt and was 
transferred to the Air Force Reserve Retired List, awaiting pay 
at age 60.  

________________________________________________________________

THE AIR FORCE EVALUATION:

AFRC/JA recommends denial.  Prior to his last Air Force Reserve 
assignment the applicant had an exemplary record; however, he 
failed to fulfill his NCO responsibilities in this last 
assignment.  After being provided with numerous opportunities to 
correct his behavior and supervisory skills, a demotion action 
was taken.  This action was taken by the 22nd AF/CC who had been 
legally delegated this ability.  The applicant’s entire military 
record was reviewed by both the demotion authority and the 
demotion appellate authority (AFRC/CC).  The demotion action is 
appropriate under the circumstances.

The following allegations were substantiated during a 
HQ AFRC/IGD reprisal investigation and a CDI directed by the 
AFRC/CV.  The investigations substantiated allegations that, “on 
28 Aug 08, you issued a downgraded EPR … in reprisal for making 
a protected communication.  You engaged in inappropriate 
personal conduct in your office on 26 Apr 07, when discovered in 
a compromising position with a female employee, not your wife, 
who works on base, drinking alcohol in your office in front of 
subordinates on duty.  You publicly communicated a veiled threat 
regarding the promotion opportunity of the witness who 
discovered and reported your indiscretions described above, an 
enlisted member of your unit junior in rank.  You improperly 
disclosed medical information that had been provided to you.

The applicant claims that the demotion action taken by the 
22nd AF/CC was erroneous, deficient and unjust in that the 
demotion authority improperly used this administrative process 
to address allegations of misconduct.  There is valid basis for 
the demotion action.  The numerous written counselings provided 
the applicant with ample opportunities to change his behavior 
and improve his management skills.  The demotion action was 
not used in lieu of other more appropriate discipline; it was 
the appropriate tool to address this culmination of 
supervisory failures on the part of the applicant.  Although 
the applicant was brought in to correct deficiencies in the 
unit, his actions made the situation worse.  He inflamed the 
fires of mistrust and disrespect by secretly recording 
conversations, divulging private medical information in 
violation of the Privacy Act and acting inappropriately in 
his office.  An example of the applicant's failure to fulfill 
his NCO responsibilities was his disrespectful response to his 
8 May 07 LOC.

He claims the 22nd AF/CC did not have the authority to act on a 
demotion action for a CMSgt.  However, the applicable AFI is 
AFI 36-2503, Administrative Demotion of Airmen, dated 
20 Jul 94, which was in effect at the time of demotion 
initiation.  The AFI has been superseded by AFI 36-2502, 
Airmen Promotion/Demotion Programs, dated 31 Dec 09, but that 
AFI does not apply to Reserve personnel.  Therefore, AFPD 
36-25, Military Promotion and Demotion, is the authority to 
demote in the Reserve, and AFI 36-2503 is used for 
administrative guidance.

He also claims that the demotion action was an arbitrary and 
capricious command action and was subject to unlawful command 
influence.  The applicant states that the unlawful command 
action complaint is based on "an overreaction to a Congressman's 
communication with the Air Force.  To his credit, the CDI 
Investigation Officer (IO) did document those communications and 
revealed that pressure from the Congressman caused headquarters 
to order reinvestigation of allegations previously found to be 
unsubstantiated."  However, there is nothing in the application 
(or alleged in the application) that shows the findings of the 
CDI were based on pressure from the Congressman.  

Finally, the applicant claims that he requested a personal 
appearance during the demotion process and was denied a personal 
appearance.  This is simply untrue.  When the 22nd AF/CC reviewed 
the demotion appeal he asked whether a personal hearing was held 
and asked for a Memorandum for the Record (MFR) summarizing the 
meeting.  The 22nd AF/CC felt the applicant should have been 
provided the opportunity.  The OG/CC provided an MFR that 
summarized his meeting with the applicant on 15 Apr 10.  He 
discussed the circumstances surrounding the demotion and the 
applicant explained why each allegation was inaccurate.  
However, as with the application to the Board, the applicant did 
not present any new evidence.  Accordingly, there was no 
procedural deficiency because he did have a personal hearing.

The evidence provided by the applicant does not show the 
demotion and appellate authorities did not review his prior 
outstanding military record.  In fact, it shows the opposite. 
During his demotion response and appeal, the applicant provided 
all of his EPRs, awards, training certificates, and numerous 
character statements.  All of this information provided by the 
applicant was reviewed by both the demotion authority and the 
demotion appellate authority in making the final decision to 
demote.

The complete AFRC/JA evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

Counsel noted several facts in the advisory opinion related to 
the administrative record were inaccurate. 

First, it incorrectly asserts that the applicant was demoted on 
26 May 10.  However, the demotion was effective on 6 Jan 10.  
Second, the opinion incorrectly asserts the applicant’s End Of 
Service (ETS) [sic] was 16 Apr 11; however, his Extension of 
Enlistment, dated 16 Aug 11, correctly reports his Expiration 
Term of Service (ETS) as 16 Aug 11.  Third, the advisory opinion 
incorrectly reports that the applicant retired from the Air 
Force Reserve on 27 Jul 11, when he was actually transferred to 
the Retired Reserve on 5 Jan 12.

In addition to these inaccuracies, the advisory opinion 
incorrectly summarizes the applicant's claims by omitting his 
allegations of error and injustice relating to the claims raised 
during the demotion appeal action.

The advisory opinion falsely claims that the IG substantiated an 
allegation that the applicant “was drinking alcohol in his 
office with subordinates.”  No such allegation was ever made or 
investigated and no such finding was ever made.  

Rather than recapitulating the information and arguments 
contained within the demotion action appeal, the applicant 
respectfully requests the Board consider the actual merits of 
the allegations as discussed at length therein.  The advisory 
opinion fails to address the underlying truth or falsity of the 
disputed facts it asserts as “background.”  Its analysis is thus 
both superficial and lazy in condemning the applicant without 
meeting his arguments or addressing his evidence.  The Board has 
"an abiding moral sanction to determine, insofar as possible, 
the true nature of an alleged injustice and to take steps to 
grant thorough and fitting relief."  Caddington v. United 
States, 178 F Supp. 604,607 (Ct.Cl.1959).  The advisory opinion 
fails to assist the Board in this most basic task.  

With respect to the applicant's claim of error and injustice 
relating to the misuse of the demotion action to address 
allegations of misconduct, the advisory opinion grossly 
mischaracterizes the record.  The demotion action was not 
initiated to address "supervisory failures" or lack of 
improvement in “management skills.”  There is no discussion of 
the applicant's job performance or mission accomplishment in the 
Notification of Demotion Action, dated 9 Jun 09.  Instead, the 
notification addresses itself exclusively to CDIs, "allegations 
of personal and professional misconduct," and the listing of 
four specific allegations of misconduct.  

Counsel highlights the applicant’s outstanding performance, 
kudos, accolades and awards.  He notes the additional rater’s 
comments in the applicant’s EPR that the applicant had "superior 
abilities" and was an "extremely valuable Senior NCO [who] helps 
squadron leadership manage multiple high-visibility issues 
daily."  He also noted that the additional rater who made these 
comments was the officer who initiated the demotion action.

The advisory opinion selectively quotes from a Board’s opinion, 
which is not precedential.  The assertion that AFI 36-2502, 
which does not apply to Reserve personnel, superseded the 
authority of AFI 36-2503 regarding the demotion of Reserve 
CMSgts is unsupported in law.  AFI 36-2502 is dated 6 Aug 02, so 
the claim that it both superseded AFI 36-2503 and that AFI 36-
2503 was the governing AFI in effect at the time of demotion 
initiation in this case is incomprehensible.  Similarly, the 
language quoted from BC-2012-02002 indicates the Board 
determined AFI 36-2503 would continue to be used as procedural 
guidance when implementing demotions.  Thus, this is not a 
situation where military commanders lacked guidance from the 
Secretary.  
      
Moreover, the advisory opinion provides no document or other 
proof that "the commander" issued verbal instructions unlawfully 
modifying the expressed directive of the Secretary of the Air 
Force contained in paragraph 16.1.3 of AFI 36-2503 that the 
demotion authority for CMSgts is the HQ AFRC Vice Commander 
(AFRC/CV).  Interestingly, the legal review of 5 Oct 09, 
indicates in paragraph 2.b that the designation of the 22nd AF/CC 
was made by the AFRC/CV, and not “the commander.”  Like the 
other branches of the military, the Air Force is governed by 
written regulations and instructions, and is required to abide 
by them.  See, e.g., WG. Cosby Transfer & Storage Corp. v. 
Froehlke, 480 F.2d 498 (4th Cir. 1969) "The Service's regulation 
itself provides the applicable law for judicial review of the 
agency action because it carefully defines the limits of the 
commander's discretion ….”  
      
In keeping with its cavalier approach, the advisory opinion 
dismisses concerns raised about unlawful command influence by 
writing “There is nothing in the application (or alleged in the 
application) that shows that the findings of the CDI were based 
upon pressure from the Congressman.”  The application, which 
specifically enclosed and incorporated the demotion action 
appeal by reference, shows the existence of such improper 
influence in detail in paragraphs 29 - 40 and 79 - 81.  The 
applicant has never been provided with the official response to 
the first congressional inquiry of 28 May 08.  However, at Tab Q 
of the demotion action appeal is a copy of a document that 
purports to contain suggested responses. Critically, the 
suggested responses exonerated the applicant of virtually all 
wrongdoing.  

The ROI clearly documents that the congressman contacted the Air 
Force the day after receiving a second inquiry from a former 
member of the applicant’s unit and complained of discrepancies 
in the response his office received. 

The congressman requested a new investigation be conducted by 
new investigator(s) and communicated that "I am sure you'll 
agree that this is not a good situation."  The IO was informed 
in "veiled" language by AFRC/CV and the congressman’s office 
that the Air Force's first response to the complaint did not 
reach the desired conclusions, which led to searching out facts 
and circumstances of alleged unprofessional 
conduct/inappropriate behavior from on or about 2005 until 
2008."  

First, by virtue of the IO’s assignment to review the findings 
and conclusions of the Wing/CC's response to the former SNCO’s 
first congressional inquiry, the not-too-subtle implication was 
the IO was assigned to reverse them. 
      
Secondly, the bar was lowered from the investigation of 
"misconduct" and "violations of the UCMJ" to now merely looking 
into "unprofessional" or "inappropriate" behavior. 
      
Thirdly, the investigation was widened from one examining 
discreet specific allegations into a witch-hunt involving all 
possible inappropriate behavior between 2005 and 2008, thus 
allowing reexamination of matters previously addressed and found 
unsubstantiated.

Lastly, the advisory opinion attempts to paper over the 
applicant's allegation that he was not afforded a personal 
hearing in accordance with paragraphs 19.2 and 19.3 of AFI 36-
2503.  The advisory opinion asserts about a summarized meeting 
between the applicant and the commander, on 15 Apr 10.  This 
statement is simply unbelievable.  No such MFR has ever been 
provided to the applicant.  The 22nd AF/CC approved the 
applicant's demotion on 6 Jan 10, wherein he indicated that he 
"considered all materials presented by the applicant, including 
a rebuttal dated 21 Aug 09."  Special Order AA-003 dated 26 Mar 
10, confirmed the verbal orders of the commander demoting the 
applicant effective 6 Jan 10.  Thus, this 15 Apr 10 "meeting," 
which did not constitute a personal hearing, reportedly took 
place well after the demotion had already been approved and 
confirmed by the Special Order.  Paragraph 19.3 of AFI 36-
2503 requires the initiating commander to write a summary of the 
personal hearing that must be included as part of the case file 
and considered as part of the SJA legal review.  No such summary 
has ever been provided to the applicant and there is no 
reference to any personal hearing.  Moreover, on 7 Aug 10, the 
applicant submitted a Complaint of Wrongs under Article 138, 
UCMJ against the commander, specifically, for his failure to 
afford the applicant a personal hearing and his failure to 
adequately and personally investigate and address the 
allegations.  

In further support of his appeal, the applicant provides 
counsel’s statement; copies of letters of support; demotion 
notification/appeal actions and various other documents 
associated with his requests.

The applicant’s complete response, with attachments, 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 error or injustice.  After a 
careful review of the available evidence of record and the 
applicant's complete submission, we do not find evidentiary 
documentation that warrants restoring his grade to CMSgt or to 
remove any references to his demotion to the grade of SMSgt, his 
denial of reenlistment or the unsubstantiated allegations that 
formed their bases.  In this respect, we note, there are four 
main arguments the applicant’s submits that are paramount to his 
case.  a) the demotion action is erroneous, deficient, and 
unjust; b) the 22nd AF/CC did not have demotion authority; c) he 
did not receive a personal hearing IAW the governing Air Force 
authority; d) his demotion action was arbitrary and capricious. 
However, AFRC/JA has conducted an exhaustive review of the 
applicant’s issues and we are in agreement with their 
recommendation that relief is not warranted.  Also pointed out 
in rebuttal, counsel notes that there were a few misstatements 
in the advisory opinion as to the applicant’s effective date of 
promotion, his ETS and retirement date, and misplaced 
allegations noted in the CDIs and the IG report that falsely 
claimed that the IG substantiated an allegation that the 
applicant “was drinking alcohol in his office with 
subordinates.”  We did not find any such allegation in the IG 
report.  In our view, the IO investigation determined that the 
applicant admitted to drinking in his office; however, there was 
no such allegation substantiated in the CDI or the IG report.   
Counsel’s mention of these comments is noteworthy.  Further, we 
reviewed the applicant’s complete record, including the evidence 
provided by the applicant himself, and these inconsistencies 
noted in the advisory opinion had no bearing on our 
understanding or the facts which led us to our determination in 
this case.

As a matter of clarity we provide the following:

      a.  Regarding counsel’s argument that the demotion action 
was erroneous, deficient and unjust and that procedurally it was 
more appropriate to handle allegations of misconduct through the 
UCMJ.  While we agree that Air Force policy requires that 
commanders not use administrative demotions when it is more 
appropriate to take actions specified by the UCMJ, the applicant 
was demoted based on his failure to fulfill his NCO 
responsibilities.  The Air Force gives commanders considerable 
deference in such matters, and we are not convinced by the 
evidence provided that the administrative actions taken by his 
commanders were inappropriate or beyond their scope of 
authority, or that the actions taken were precipitated by 
anything other than the applicant's own conduct.  Prior to the 
applicant’s demotion several actions were used, including a LOC, 
two LORs, and a LOA, in an attempt to rehabilitate the 
applicant, prior to demoting him for failure to fulfill his NCO 
responsibilities.  Further, we note in response to the LOC, 
after explaining his position, the applicant told his commanding 
officer, “So you have my signed LOC and to be quite frank I 
don’t care what you do with it.”  Accepting counsel’s argument 
regarding the applicant’s record of outstanding performance and 
the applicant’s promotion to CMSgt as a result thereof, we find 
the commander’s decision to pursue demotion on the basis of the 
applicant’s conduct, which essentially is a failure to fulfill 
his NCO responsibilities, a reasonable action under the 
circumstances.  While the applicant and counsel may disagree 
with the commander’s decision, they have not provided evidence 
that convinces this Board the action was arbitrary or 
capricious.

      b.  In respect to counsel’s argument that 22nd AF/CC did not 
have demotion authority for CMSgts, we note that at the time the 
demotion action was initiated the governing AFI 36-2503, dated 
20 Jul 94, was the authority; however, on 31 Dec 09, AFI 36-2502 
was revised which superseded AFI 36-2503, but it did not apply 
to the Air Force Reserve members.  So, while we can understand 
why counsel may be confounded by the Air Force’s governing 
authority in this matter, we do not find that counsel’s argument 
has merit.  In our view, this new AFI negated the authority 
delegated to AFRC/CV to demote a CMSgt and the verbal order of 
the commander as well.  Therefore, AFPD 36-25 became the 
governing guidance which gives the AFRC/CC the authority to 
demote an Air Force Reserve member.  In addition, as noted in 
the advisory, JA opined that while AFPD 36-25 was the governing 
authority, AFI 36-2503 was used as guidance.  JA further notes 
that the applicant’s demotion action was reviewed by AFRC/CC on 
appeal, which in our view afforded the applicant full 
administrative due process in the demotion action.  
      
      Additionally, we note that counsel makes reference that 
JA’s opinion that AFI 36-2502 superseded AFI 36-2503 is 
incomprehensible, we would like to note that counsel is 
referencing the AFI 36-2502, dated 6 Aug 02; however, AFI 36-
2502 was revised on 31 Dec 09, which is the authority that 
superseded AFI 36-2503.

      c.  Counsel argues that the applicant did not receive a 
personal hearing IAW the governing AFI in effect at the time.  
As noted above, AFI 36-2503, the governing directive in effect 
when the demotion action was initiated, was superseded prior to 
the demotion action being completed.  Hence, it could be argued 
that a personal hearing was no longer necessary; nonetheless, 
the applicant was still afforded a personal hearing under the 
previous guidance.  In this respect, as previously noted in JA’s 
opinion, while considering the demotion action under appeal, the 
22nd AF/CC discovered that the record did not have a summary of a 
personal hearing and requested a MFR summarizing the hearing.  
The 22nd AF/CC was advised that a hearing was held on 15 Apr 
10 and the initiating commander, 514th OG/CC, provided him a 
summary of the hearing.  The applicant acknowledged receipt of 
the demotion action and elected to appeal this action.  The 22nd 
AF/CC considered the available evidence and the applicant’s 
appeal was forwarded to the AFRC/CC, who was the approval 
authority, for final action.  While clearly the personal hearing 
in this case did not occur as normally required in the original 
policy, the question for this Board was whether the applicant 
received the benefit of the personal hearing albeit not in the 
normal order.  We believe so as we note there was still a clear 
opportunity for the demotion action to be stopped had the 
promotion authority found merit in the applicant’s arguments.  
In the applicant’s submission, he provides a copy of the appeal 
addressed to the AFRC/CC that was submitted by counsel, and his 
demotion action was upheld.  

	d.  Counsel argues that the demotion action was the result 
of arbitrary and capricious action by the demotion authority 
that contravened the governing service regulations.  In support 
of this contention, counsel notes a military justice court case 
(United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006) where the 
court ruled that the applicant was demoted under the UCMJ based 
on pressure from outside influences.  Even though counsel makes 
the argument that the CDI(s) were the result of pressure from a 
Member of Congress, we do not find the circumstances under the 
reference case more than superficially similar to the 
circumstances which led to the applicant’s demotion.  The 
applicant was administratively demoted based on a failure of his 
NCO responsibilities and as noted above, we did not find the 
evidence sufficient to establish that the commander improperly 
used his discretionary command authority.  In our view, the 
involvement of the Member of Congress was at the behest of 
another military member assigned to the unit.  Thus, we find it 
reasonable for the unit to respond to the expressed concerns.  
Based on our review of the CDI(s), it appears that those 
incidents of misconduct substantiated by the investigating 
officer were supported by sufficient evidence.  Consequently, it 
follows that the commander had justification for the action 
taken.  Based on the evidence presented, the applicant has not 
presented evidence that the demotion action was influenced by 
the Congressman or that the CDI(s) was conducted with a 
preconceived outcome.  Therefore,  while counsel believes the 
CDI(s) was the result of outside influence, we did not come to 
this conclusion.  In our view, the commander’s determination to 
demote the applicant was a result of the substantiated 
allegations, not any outside influence.

5.  On balance, we concede that there were administrative 
errors, misstatements and confusion surrounding the demotion 
action at the center of this case.  However, we find no basis to 
substitute our judgment for that of the commanders involved in 
this case.  In our view the issue is not whether or not we 
believe the applicant should have been demoted, rather does the 
evidence support there has been an error on the part of the Air 
Force that raises the action to the level of an injustice.  We 
do not think so.  Based on a preponderance of evidence, we do 
not find the applicant has been deprived of due process and do 
find that, although not administratively perfect, the process 
was sufficient to provide him fair and equitable consideration.  
Therefore, in view of the above, we find no basis to recommend 
granting the relief sought in this application.

6.  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 issue involved.  
Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________

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.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-02419 in Executive Session on 26 Jun 14, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 May 13, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFRC/JA, dated 16 Jul 13.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Aug 13.
    Exhibit E.  Letter, Counsel, dated 2 Sep 13, w/atchs.