RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-05137

		COUNSEL:  NONE

		HEARING DESIRED:  YES 




APPLICANT REQUESTS THAT:

His selection for promotion to the grade of master sergeant   (E-7) during cycle 13E7 be reinstated.  



APPLICANT CONTENDS THAT:

He lost his promotion to E-7 due to negligence of others.  Specifically, he was misinformed by his first sergeant regarding promotion eligibility after receiving an Article 15.  Furthermore, were it not for multiple and lengthy administrative discrepancies in getting his Article 15 updated, he would have been able to approach his commander about mitigating his Article 15 prior to the promotion eligibility cutoff date (PECD), which would have made him eligible for promotion testing.  

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



STATEMENT OF FACTS:

The applicant currently serves in the Regular Air Force in the grade of technical sergeant (E-6).  

On 3 Jul 12, the applicant was issued an Article 15 for failing to submit a proper leave request (dereliction of duty), in violation of Article 92, Uniform Code of Military Justice (UCMJ).  His nonjudicial (NJP) punishment consisted of a reduction to the grade of staff sergeant, suspended through 2 Jan 13, at which time it would be remitted without further action, unless sooner vacated.

On 21 Nov 12, according to documentation provided by the applicant, he received a promotion testing date of 13 Feb 13, for the 13E7 promotion cycle.

On 13 Feb 13, according to documentation provided by the applicant, he tested, and was informed of his selection for promotion to E-7 on 23 May 13.

On 7 Oct 13, according to documentation provided by the applicant, via the Virtual Military Personnel Flight (VMPF), he discovered he was ineligible for promotion for the 13E7 cycle. 

In accordance with AFI 36-2502, Table 1.1, Rule 20, airmen are ineligible for promotion during a particular cycle (includes testing and consideration if already tested) when they are undergoing suspended reduction imposed by UCMJ, Article 15.  Since the Promotion Eligibility Cut-off Date (PECD) for the 13E7 promotion cycle was 31 Dec 12, and the applicant’s suspended reduction was through 2 Jan 13, he was ineligible for promotion consideration. 

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.    



AIR FORCE EVALUATION:

AFLOA/JAJM recommends relief be granted, indicating there is evidence of an error or an injustice.  The Article 15 action was completed on 9 July 2012 when the staff judge advocate found it to be legally sufficient; therefore, there was no error or injustice with the imposition of the Article 15.  However, AFLOA/JAJM confirmed there were significant administrative processing errors of the Article 15 action, which, combined with the apparent errors made by the first sergeant and career development office, led to the unfortunate situation of the applicant testing for promotion when he was ineligible to test.  Considering the minimal punishment given by the commander, AFLOA/JAJM believes that the commander would not have intended for the applicant to lose his opportunity to test for promotion in February 2013.  Had the commander been made aware of the consequences of the Article 15 much sooner by the first sergeant advising him of the impact on the applicant’s testing, and/or the legal office forwarding the Article 15 action paperwork to the career development office in a timely manner (Article 15 action completed 9 Jul 12, not forwarded to the career development office until 15 Jul 13), he could have mitigated the punishment to allow the applicant to test in February 2013.  This is an injustice worthy of correction by the Board.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice.  The applicant’s dereliction of duty ultimately resulted in an Article 15 action and his ineligibility for promotion.  Reinstatement of the applicant's erroneous selection to E-7 is not appropriate as the failure of his military personnel section (MPS) to receive and update the Article 15 prior to his testing and selection notification for cycle 13E7 does not negate the fact that the Article 15 was valid and rendered him ineligible for promotion. 

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



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides two new documents in support of his arguments: a memo for record from the first sergeant indicating that he could not remember specifics about informing the applicant of the impact of the suspended punishment on promotion eligibility, and an email from the imposing commander indicating that he did not specifically intend for the suspended punishment to preclude the applicant from testing, but if that was the consequence of the suspended punishment, then it was a legitimate outcome of his misconduct.  Additionally, the applicant questioned AFPC/DPSOE’s interpretation of the events pertaining to how his ineligibility for promotion was discovered.  Finally, the applicant reiterates that the misinformation about the suspended punishment’s impact on his promotion eligibility, combined with the processing delays and mistakes, prevented him from exercising his option to approach his commander for mitigation of the punishment which could have made him eligible for the 13E7 promotion cycle.  



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 that would warrant granting the requested relief.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of AFPC/DPSOE and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  In our view, the evidence presented by the applicant is not sufficient for us to conclude that reinstatement of his erroneous promotion selection is warranted.  While we note the comments of AFLOA/JAJM indicating the applicant’s military personnel section (MPS) did not receive and update the Article 15 prior to his notification for testing for cycle 13E7, this administrative error, in and of itself, does not negate the fact that the Article 15 was valid and rendered him ineligible for promotion in accordance with AFI 36-2502.  We also note the comments by AFLOA/JAJM indicating that had the applicant’s commander been made aware of the consequences of the Article 15 much sooner, he could have mitigated the punishment to allow the applicant to test in February 2013.  While it is true the commander could have done so, the email communique from the commander on this point provided by the applicant makes it clear that he would not have done so.  In this respect, we note the commander’s comments indicating that while he did not specifically intend for the applicant to lose his opportunity to compete for promotion, in his view, if the NJP served to render the applicant ineligible for promotion consideration, such a circumstance is a legitimate consequence of the applicant’s misconduct.  We agree.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 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-2013-05137 in Executive Session on 11 Sep 14, under the provisions of AFI 36-2603:

	




The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-05137 was considered:

	Exhibit A.  DD Form 149, dated 29 Oct 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLOA/JAJM, dated 31 Mar 14.
Exhibit D.  Letter, AFPC/DPSOE, dated 7 Apr 14.
Exhibit E.  Letter, SAF/MRBR, dated 20 May 14.
Exhibit F.  Letter, Applicant, dated 20 Jun 14, w/atchs.