RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01655

  						COUNSEL:  NONE

						HEARING DESIRED:  NOT INDICATED



APPLICANT REQUESTS THAT:

1.  His Referral Enlisted Performance Report (EPR), rendered for 
the period 3 August 2012 through 2 August 2013, be removed from 
his records.

2.  Letter of Reprimand (LOR) and Unfavorable Information File 
(UIF) be removed.

3.  His demotion to senior airman (SrA) be removed and he be 
restored to the rank of staff sergeant (SSgt).


APPLICANT CONTENDS THAT:

He received an LOR/UIF and an administrative demotion for an 
alleged DUI.  He was denied the Weighted Airman Promotion System 
(WAPS) testing and his base driving privileges were revoked for 
one year.  He was found not guilty of the DUI and this was the 
sole reason for the LOR/UIF and demotion.

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 
23 November 1999.

On or about 30 January 2013, the applicant was pulled over by a 
Tucson police officer for speeding.  The officer smelled alcohol 
on the applicant's breath and administered a breathalyzer test 
in which the results were .123, well over the legal limit of 
.08.  The case was reviewed in a court of law and determined 
that the police officer did not have reasonable suspicion to 
stop the applicant for exhibition of speed.  The court granted 
the defense motion to suppress for lack of reasonable suspicion.




The applicant did not file an appeal through the Evaluation 
Reports Appeals Board (ERAB) under the provisions of AFI 36-
2406, Officer and Enlisted Evaluation Systems, due to his 
separation from active duty.

On 30 November 2014, the applicant was honorably released and 
transferred to the Air Force Reserve.  He was credited with 
15 years and 8 days of active service.

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


AIR FORCE EVALUATION:

AFPC/DPSOE recommends denial.  DPSOE states although the 
applicant’s court case was dropped, the fact remains that the 
applicant was driving while under the influence of alcohol.  His 
commander determined this behavior to be reckless, 
irresponsible, dangerous and selfish.  His actions also resulted 
in discreditable involvement with civil authorities.  On 
8 February 2013, the applicant received notification of non-
recommendation to promotion test for cycle 13E6 to TSgt.  He 
also received a referral EPR for the period 3 August 2012 to 
2 August 2013.

On 19 February 2013, the applicant received notification of his 
commander’s intent to initiate administrative demotion action 
for failure to fulfill airman responsibilities (AFI 36-2502, 
paragraph 6.3.4).  On 9 March 2013, the staff judge advocate 
provided a legal review and determined there were no errors or 
irregularities affecting the legal sufficiency of the demotion 
action.  Effective 9 March 2013, the applicant was demoted to 
the rank of SrA with a new date of rank of 14 March 2013.

The demotion action taken against the applicant was procedurally 
correct and there is no evidence there were any irregularities 
or that the case was mishandled in any way.  The commander acted 
within his authority to demote the applicant from SSgt to SrA.

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

AFPC/DPSIM recommends denial for removal of the LOR/UIF.  DPSIM 
states they cannot determine whether or not the person who 
initiated the LOR/UIF action was just or not; they can only 
discuss if proper procedures were followed in the administration 
of the action.  The applicant did not provide any documentation 
(e.g. LOR he received) to determine if proper procedures were 
followed.

IAW AFI 36-2907, paragraph 1.3.1, “For enlisted members, 
commanders refer optional documents LOAs, LOCs, or LORs to the 
offending member along with an AF IMT 1058 before establishing 
an UIF.”  Of that note, this office cannot speak to whether or 
not the commander’s actions were just or not - at most they can 
only discuss if proper procedures were followed in the 
administration of the action.  The applicant did not have an 
AF IMT 1058 present in this case.  Proper procedures cannot be 
determined without the AF IMT 1058.

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

AFPC/DPSID recommends denial indicating there is no evidence of 
an error or an injustice.  DPSID states the applicant received a 
LOR/UIF and demotion for the substantiated misconduct, the 
“arrest” itself remains a fact.  The rating chain appropriately 
chose to comment and document on the underlying wrongdoing, 
which caused the report to be referred to the applicant for 
comments and consideration to the next evaluator.  The applicant 
provided no evidence within his case to show that the referral 
comment on the EPR was inaccurate or unjust; therefore, the 
inclusion of the referral comment on the EPR was appropriate and 
within the evaluator’s authority to document given the incident.  
Moreover, a final review of the contested evaluation was 
accomplished by the additional rater and a subsequent agreement 
by the reviewer/commander served as a final “check and balance” 
in order to ensure that the report was given a fair 
consideration in accordance with the established intent of the 
current Officer and Enlisted Evaluation System in place.  Based 
upon the presumed sufficiency of the LOR/UIF/demotion action as 
served to the applicant, they conclude that its mention on the 
contested report was proper and in accordance with all 
applicable Air Force policies and procedures.  They find this 
element of the appeal to be without merit.

In regards to the applicant’s allegation that the court found 
him not guilty, the applicant did provide a court document 
stating the officer did not have reasonable suspicion to stop 
him, but makes no mention of him being found not-guilty for 
driving under the influence which the EPR specifically mentions. 
However, a court dismissal is irrelevant on the comment made in 
the EPR since the comment merely documented the fact that he was 
“using alcohol irresponsibly; operated a car under the 
influence,” not that he was charged or found guilty.  The 
comment does in no way make this report invalid.  The fact 
remains that the applicant did use alcohol irresponsibly which 
is merely the underlying conduct that formed the basis of the 
action; and as such, this comment was appropriate and in 
accordance with all established Air Force policy and procedures. 
The bottom line is that the evaluators were within their 
authority to comment on the underlying behavior which caused the 
report to be referred, and even though the case was dismissed in 
a civil court, it was still within the Military’s jurisdiction 
to take administrative action as the rating chain deemed 
appropriate.  Therefore, they find the comment referencing the 
behavior and the punishment received on the contested referral 
EPR to be fair, accurate, and IAW AFI 36-2406 instructional 
guidance.

The burden of proof is on the applicant.  The applicant has not 
substantiated that the contested OPR was not rendered in good 
faith by all evaluators based on knowledge available at the 
time.

A complete copy of the AFPC/DPSID evaluation is at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 16 July 2015 for review and comment within 30 days 
(Exhibit F).  As of this date, no response has been received by 
this office.


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 its rationale as the basis for our 
conclusion the applicant has not been the victim of an error of 
injustice.  Despite the court’s dismissal of the alleged charge, 
the applicant has failed to demonstrate or provide evidence to 
the Board that would substantiate an error or injustice occurred 
in regards to his LOR, UIF, EPR and demotion.  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-2014-01655 in Executive Session on 5 August 2015 under 
the provisions of AFI 36-2603:


The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 10 April 2014, w/atchs.
	Exhibit B.  Applicant’s Available Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSOE, dated 9 May 2014.
	Exhibit D.  Letter, AFPC/DPSIM, dated 5 June 2014.
	Exhibit E.  Letter, AFPC/DPSID, dated 1 July 2015.
	Exhibit F.  Letter, SAF/MRBR, dated 16 July 2015.