RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-00824

  						COUNSEL:  	

						HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

1.  His demotion from the grade of Senior Master Sergeant 
(SMSgt/E-8) to the grade of Master Sergeant (MSgt/E-7) be 
overturned.

2.  He receive all back pay for lost wages from 15 Oct 06 through 
present date.


APPLICANT CONTENDS THAT:

His demotion action to the grade of MSgt was unjust and should be 
overturned.  

He was denied proper notice throughout the entire process which 
led to his demotion.

The proposed Non-Judicial Punishment (NJP) by way of an Form 2627 
was erroneous, deficient and unjust, in that it stated he violated 
Pennsylvania Code of Military Justice (PCMJ), Section 
(§)2016 (Failure to obey an order or regulation) and PCMJ, 
§2045 (Conduct prejudicial to good order and discipline), which do 
not exist.  However, failure to obey an order or regulation is 
PCMJ, §6016 and §6045 provides for punishment for conduct 
prejudicial to good order and discipline.  So he could not have 
been properly notified if the notification document does not cite 
the proper sections of the PCMJ.

He was not given due process because the alleged violations of the 
PCMJ do not provide any specifications regarding the alleged 
misconduct and was wholly insufficient as required by procedural 
due process.

He was denied the opportunity to see the materials that were being 
used as the basis of his punishment and denied the protections 
afforded under Air National Guard Instruction (ANGI) 36-2503, 
Administrative Demotion of Airmen.  

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


STATEMENT OF FACTS:

Based on information provided by the applicant, a memorandum, 
dated 29 Jun 06, from the Commander, 193rd Special Operation Wing, 
notified the applicant of his intent to proposed adverse action 
against the applicant for his actions, on 13 Jun 06, which 
resulted in a fuel leak.  On 7 Aug 06, the applicant responded to 
the Proposed Adverse Action requesting the action be dismissed.

On 14 Aug 06, the commander notified the applicant that based on a 
review of the evidence presented by the applicant, he was revising 
his original decision to suspend the applicant for 15 days and 
reducing the suspension to 7 days.  In addition, he notified the 
applicant of his appeal rights to the Adjutant General and an 
administrative hearing.

On 16 Aug 06, the commander preferred charges against the 
applicant under the PCMJ, for failure to obey order or regulation 
and conduct prejudicial to good order and discipline.

On 21 Aug 06, after consulting with counsel, the applicant 
accepted the NJP and waived his right to demand trial by court-
martial.  He elected to present written matters and requested a 
personal appearance before the commander.

On 24 Aug 06, the commander recommended a demotion to the grade of 
Master Sergeant (MSgt), in accordance with ANGI 36-2503, para 3.7.

On 24 Aug 06, the applicant requested an administrative hearing in 
regards to the adverse action punishment of 7 day suspension.

On 28 Aug 06, the applicant submitted an appeal indicating the 
reduction to the grade of MSgt is not a permissible action.

On 1 Sep 06, the Staff Judge Advocate (SJA) found the case file 
legally sufficient, with the exception of the reduction in grade 
to MSgt.  The SJA indicated that in accordance with Section 5301 
of the PCMJ, the commander was permitted to reduce the applicant 
to the grade of MSgt; however, in accordance with ANGI 36-2503, 
Administrative Demotion of Airmen, only the State Adjutant General 
vests demotion authority for the grades of MSgt and above and 
based on the conflict of law and since the punishment had not yet 
been imposed, the applicant’s request was not “ripe” for appeal.  

On 27 Sep 06, according to a memorandum, the commander withdrew 
the 7 day suspension under the Proposed Adverse Action.

According to Special Order (SO) A-7, dated 6 Oct 06, on 15 Oct 06, 
The Adjutant General (TAG) of Pennsylvania Air National Guard (PA 
ANG), demoted the applicant to the grade of MSgt for failure to 
fulfill his Non-Commissioned Officer (NCO) responsibilities.

According to a memorandum, dated 10 Oct 13, from TAG, the denied 
the applicant’s appeal, dated 21 Aug 13, and determined that his 
appeal was untimely based on his submission 6 years after the 
events occurred.  In addition, the TAG noted that he had reviewed 
the issues raised in regard to alleged error in the processing of 
the demotion action and reassignment actions and determined that 
any perceived errors were administrative in nature and did not 
result in an injustice.

According to the Military Personnel Data System (MILPDS), on 2 Jan 
15, the applicant was transferred to the USAF Reserve Retired 
List, awaiting pay at age 60.  He was credited with 33 years, 
9 months, and 7 days of satisfactory Federal service.   


AIR FORCE EVALUATION:

NGB/A1PP recommends denial indicating the applicant’s request is 
untimely.  A1PP notes that over six years passed before the 
applicant appealed the decision of the PAANG and more than seven 
years before he petitioned the Board.  Since the TAG is the final 
authority and subsequently directed the demotion, A1PP finds this 
request without warrant.  A1PP cannot comment on whether the NJP 
was proper since the demotion was based on a violation of the 
PCMJ; nor can they comment on the civilian administrative action.

A1PP states AFI 36-2503’s paragraph 2 identifies demotion 
authorities.  Paragraph 2.1 states, “TAG will exercise demotion 
authority for enlisted members serving in the ranks of MSgt, 
SMSgt, and Chief Master Sergeant (CMSgt).”  Paragraph 2.3 notes, 
“Depending on an ANG enlisted member’s military status, a member 
reduced in grade by court martial, judicial or Non-Judicial 
Punishment (NJP) under the UCMJ or State Military Code, is demoted 
to the same grade as a Reserve of the Air Force in the Air 
National Guard of the United States (ANGUS).” 

A1PP cannot comment on whether the NJP was “proper”, as the 
applicant was charged with violating a State Military Code within 
the PCMJ.  However, on 6 Oct 06, the TAG authorized and directed 
the applicant be demoted from SMSgt to MSgt for failure to fulfill 
NCO responsibilities.  This authority is within the TAG’s 
discretionary authority IAW AFI 36-2503’s paragraph 2.1. and was 
coordinated with legal counsel.  Paragraph 7.2 of ANGI 36-2503 
confirms, “Demotion orders may be revoked only with the approval 
of TAG when it has been determined that the order was published 
without the proper authority.”  Since the TAG directed the 
demotion, the demotion cannot be overturned without the TAG’s 
approval. 

The complete A1PP evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reiterates his original contentions the NJP was 
fundamentally improper because of the lack of due process by 
depriving the applicant of proper notice of his alleged 
misconduct.  Counsel cites several reasons the applicant was 
deprived due process:

      a.  The Form 2627 that proposed the NJP cited two sections of 
the PCMJ that do not exist and was legally insufficient.  Further, 
the Form 2627 did not provide any specifications regarding the 
applicant’s alleged failure to obey an order or regulation or 
conduct that was prejudicial to good order and discipline.  The 
existence of both of these fundamental flaws only solidifies the 
applicant’s deprival of due process.

      b.  The applicant’s chain of command conspired to conceal the 
report that was the basis of the punishment in violation of ANGI 
36-3503, § 4.1.1 through 4.1.5.  The applicant did not receive the 
specific reasons for the proposed demotion; a complete summary of 
the supporting facts; instructions for the airman to acknowledge 
the notification and concur or non-concur; or an explanation of 
the airman’s right to consult with legal counsel.

	c.  The applicant’s chain of command intentionally hid the 
information that he was entitled to see before he was demoted.

	d.  The illegal action by the operation wing deprived the 
applicant of due process.

Counsel refutes the untimely recommendation because the applicant 
elected not to challenge his 2006 demotion action out of fear of 
reprisal.  He was explicitly told that if he challenged the 
demotion, the careers of his spouse and daughter, would be 
jeopardized.  

He has been victimized by the deliberately illegal acts of his 
chain of command and their actions are clearly unjust, unethical, 
and illegal, but the only service member to be punished in this 
situation is the applicant.

Counsel’s complete response is at Exhibit E.  


ADDITIONAL AIR FORCE EVALUATION:

The 193rd Wing Staff Judge Advocate (SJA), PA ANG, submitted 
information to the JA for the Air National Guard Readiness Center 
(ANGRC).  First, he questions the Board’s jurisdiction to correct 
military justice records of a NJP under a State Code of Military 
Justice.  However, assuming that jurisdiction rest with the Board, 
he notes that he was the SJA at the wing at the time of the 
Section 5301 proceedings in question.

He had had extensive conversations about the proceeding with the 
then Commander of the 193d MXG, who has retired.  However, despite 
his repeated offers of assistance, the commander completed the MA-
SJA Form 2627 on his own, and declined his offer to review the 
same.  It is his recollection the applicant requested and received 
the advice of an Area Defense Counsel (ADC), and the nature of the 
offenses he was accused of was explained to him and known by 
defense counsel, the ministerial errors on the MA-SJA Form 
notwithstanding.

At the time that he subsequently reviewed the MA-SJA Form 2627, he 
was advised by the former commander that neither the applicant nor 
his counsel had raised any objection with respect to the errors, 
that they had not requested a correction, and that both were fully 
aware of the substance of the matters the applicant was being 
punished for.  The ADC never raised any concerns with his office.

He would contend the errors complained of are ministerial and the 
applicant was afforded a full and fair hearing, and that he had 
the benefit of counsel who never raised any issue with respect to 
the MA-SJA Form 2627.

The complete review, provided to ANGRC/JA is at Exhibit F.


APPLICANT'S REVIEW OF the ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to counsel on 
17 Apr 15 for review and comment within 30 days.  As of this date, 
no response has been received by this office (Exhibit G).


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, including counsel’s 
response to the Air Force evaluation, in judging the merits of the 
case; however, we find no evidence of error in this case and after 
thoroughly reviewing the documentation that has been submitted in 
support of applicant's appeal, we do not believe he has suffered 
from an injustice.  In addition, based upon the presumption of 
regularity in the conduct of governmental affairs and without 
evidence to the contrary, we must assume the applicant's demotion 
was proper and in compliance with appropriate directives.  
Further, while we note counsel’s objection to the PA state NJP 
action, we remind the applicant and counsel, that in Sep 06, the 
applicant and military counsel was made aware of a conflict in 
PA state law and ANGI 36-2503, and upon legal review the adverse 
action was withdrawn and the applicant was demoted by the Adjutant 
General of the State of PA.  Should the applicant provide 
additional evidence that his rights were violated, and his 
demotion by the Adjutant General was erroneous, we do not find 
that he has established his burden of an error or injustice.  
Therefore, in the absence of evidence to the contrary, we find no 
basis to recommend granting the requested relief.


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-2014-00824 in Executive Session on 4 Jun 15 and 19 Aug 15 under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 7 Feb 14, w/atchs.
	Exhibit B.  Pertinent Excerpts from Personnel Records.
	Exhibit C.  Letter, NGB/A1PP, dated 22 Aug 14.
	Exhibit D.  Letter, SAF/MRBR, dated 26 Sep 14.
	Exhibit E.  Letter, Counsel, dated 21 Oct 14.
	Exhibit F.  Letter, 193 SOW/JA thru NGB/A1, dated 6 Feb 15.
	Exhibit G.  Letter, SAF/MRBR, dated 17 Apr 15.