RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-05285
			COUNSEL:  NONE
			HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

1.  His records be corrected to reflect his retirement rank as 
Technical Sergeant (TSgt, E-6).

2.  The Record of Proceedings under Article 15, imposed on 17 May 
2010, and the subsequent reduction to the rank of Master Sergeant 
(MSgt, E-7) be set aside.

3.  His Enlisted Performance Report (EPR) rendered for the period 
29 February 2008 through 28 April 2009, be removed from his 
records. 


APPLICANT CONTENDS THAT:

He was reduced from the rank of MSgt, to the rank of Staff 
Sergeant (SSgt, E-5) as a result of non-judicial punishment.  
However, he was later granted leniency and his rank was restored 
to TSgt.

He was forced to sign legal documents while under heavy medication 
following dual hip replacement and knee surgery.  The Judge 
Advocate General (JAG) led him to believe that if he did not sign 
the Article 15 we would be discharged with no retirement benefits.  
He does not want any additional compensation or back pay.

His rater and first sergeant were having an affair.  After he 
filed a complaint he was ostracized and ordered not to speak with 
anyone about anything to do with the unit.  The commander gave his 
rater access to his complaint, and while he repeatedly asked for a 
new rater, he never received any verbal or written acknowledgment 
of his requests.  Subsequently he received a referral EPR despite 
positive feedback sessions.

The applicant provides no rationale as to why his failure to 
timely file should be waived in the interest of justice.

In support of his request, the applicant provides personal 
statements, copies of his Article 15, special orders, EPRs, 
memorandums, character statements, and various other items related 
to his requests.

His complete submission, with attachments, is at Exhibit A.



STATEMENT OF FACTS:

According to the Commander Directed Findings, dated 24 July 2009, 
provided by the applicant, his “two immediate supervisors” 
admitted to inappropriate professional conduct and fraternization.

According to Mil Form 88, Record of Proceedings under Article 15, 
WCMJ, on 17 June 2010, the Assistant Adjutant General imposed 
nonjudicial punishment on the applicant who was reduced from the 
rank of MSgt to the rank of SSgt effective 17 June 2010.

According to Special Order AD-003 dated 1 July 2010, the applicant 
was demoted from the rank of MSgt to the rank of SSgt effective 
and with a Date of Rank (DOR) of 17 June 2010.

According to Secretary of the Air Force (SecAF) memorandum dated 
27 July 2010, the applicant did not serve satisfactorily in any 
rank higher than SSgt.

According to Special Order ACD-02591 dated 25 August 2010, the 
applicant was released from active duty in the rank of SSgt and 
placed on the Temporary Disability Retired List (TDRL) effective 
28 October 2010.

In a letter dated 1 September 2010, the Assistant Adjutant General 
decided to grant post-punishment relief imposed on the applicant.  
The nonjudicial punishment imposed on 17 June 2010, was amended 
effective 1 September 2010 to read that he was reduced to the rank 
of TSgt rather than SSgt.

According to Special Order AD-004 dated 20 September 2010, Special 
Order AD-003, dated 1 July 2010, that demoted the applicant from 
the rank of MSgt to SSgt was revoked in whole.

According to Special Order AD-005 dated 20 September 2010, the 
applicant was demoted to the rank of TSgt effective 1 September 
2010 and with a DOR of 17 June 2010.

According to the applicant’s NGB Form 22, Report of Separation and 
Record of Service, he was separated from the Air National Guard 
effective 27 October 2010, in the rank of SSgt.

According to the applicant’s DD Form 214, Certificate of Release 
or Discharge from Active Duty, on 27 October 2010, he was 
separated from the Air National Guard in the rank of TSgt.  The 
narrative reason for his separation is “Retirement Disability, 
Temporary.”

According to Special Order ACD-02522 dated 5 June 2012, the 
applicant was removed from the TDRL and retired in the grade of 
SSgt effective 25 June 2012.




AIR FORCE EVALUATION:

In a memorandum dated 6 January 2014, NGB/A1PP recommends 
correcting the applicant’s records to reflect his retirement rank 
as TSgt.  On 17 June 2010, the applicant was reduced in rank from 
MSgt to SSgt as a result of non-judicial punishment.  At the same 
time, a grade determination was completed by the office of the 
SecAF and it was determined that the applicant was to be retired 
in the rank of SSgt.  Following the SecAF’s decision, the 
punishment authority decided to grant leniency and change the 
applicant’s rank to TSgt.  The decision of the punishment 
authority was within his purview, however, in accordance with AFI 
51-202, Nonjudicial Punishment, the final authority would be the 
SecAF since only the SecAF can determine the last satisfactory 
grade held.  The promotion authority also serving as the non-
judicial punishment authority published a memorandum dated 
1 September 2010 to reduce the applicant’s rank from MSgt to the 
rank of TSgt.  This memorandum is sufficient in accordance with 
ANGI 36-2502, Promotion of Airmen.

In a memorandum dated 10 March 2014, A1PP recommends denial of the 
applicant’s request to set aside the non-judicial punishment under 
Article 15 of the UCMJ and restore his retirement rank to MSgt. 
The SecAF and the punishment authority determined the Article 
15 the applicant received was warranted.  The punishment authority 
later granted leniency and changed the applicant’s rank to TSgt.

In a memorandum dated 11 March 2014, A1PP recommends denial of the 
applicant’s request to remove the contested EPR.  His EPR reflects 
multiple off-duty alcohol related incidents and the loss of 
government property, which are adequate reasons to refer his EPR.  
Nevertheless, his EPR was committed to the Automated Record System 
and is part of his official military records.  In accordance with 
AFI 36-2406, Officer and Enlisted Evaluation Systems, the 
Evaluation Reports Appeal Board (ERAB) was established to provide 
all Air Force personnel with an avenue of relief for correcting 
errors or injustices in evaluations at the lowest possible level.  
The applicant did not exhaust all other avenues of relief before 
submitting his request to the Board.

The complete A1PP evaluations are at Exhibit C.


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

On 21 March 2014, copies of the Air Force evaluations were 
forwarded to the applicant for review and comment within 30 days.  
As of this date, no response has been received by this office 
(Exhibit D).



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 to warrant setting 
aside the applicant’s Article 15 and subsequent reduction to the 
rank of MSgt.  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 the Air Force OPR and adopt 
the rationale expressed as the basis for our conclusion the 
applicant has not been the victim of an error or injustice.  
Regarding the applicant’s request to remove the contested EPR, we 
disagree with the OPR’s recommendation to disapprove the 
applicant’s request because he has not exhausted his 
administrative remedies.  In this respect, we note that retired or 
separated personnel are not eligible to apply for correction 
through the ERAB.  Nevertheless, we are not persuaded that the 
contested report is not a true and accurate assessment of his 
performance and demonstrated potential during the specified time 
period.  Other than his own uncorroborated assertions, he has not 
provided substantial evidence which would lead us to believe his 
rater’s assessment was inappropriate or based on anything other 
than his own misconduct.  Therefore, in view of the above, we find 
no basis to recommend granting the relief sought in this portion 
of his application. 

4.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or an 
injustice to warrant changing the applicant’s retirement grade to 
E-6.  Having carefully reviewed this application, we agree with 
the recommendation of the Air Force OPR and adopt the rationale 
expressed as the basis for our decision that the applicant has 
been the victim of either an error or an injustice.  Therefore, we 
recommend his records be corrected to the extent 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 his NGB Form 22, 
Report of Separation and Record of Service, effective 27 October 
2010, be amended in item 5b, Pay Grade, to read E-6 rather than E-
5.



The following members of the Board considered this application in 
Executive Session on 15 January 2015, under the provisions of AFI 
36-2603:

      , Panel Chair
      , Member
      , Member

All members voted to correct the record as recommended.  The 
following documentary evidence was considered in AFBCMR BC-2013-
05285:

      Exhibit A.  DD Forms 149, dated 30 September 2013, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letters, NGB/A1PP, dated 6 January 2014, 10 March 
                  2014 and 11 March 2014.
      Exhibit D.  Letter, SAF/MRBR, dated 21 March 2014.